Commentary: Wisconsin Supreme Court decision addresses child support arrears.

• Author: Herman, Gregg

Byline: Gregg Herman

Any confusion about Wisconsin law regarding credits for child support arrears might have (finally) been put to rest, thanks to a recent Wisconsin Supreme Court decision. In In re the Paternity of John R. B., 2005 WI 6, the high court affirmed an unpublished decision of the District II Court of Appeals, holding that an alleged post judgment oral agreement between the parties to modify child support is not a defense to arrears and that retroactive application of Wis. Stat. s. 767.32 (1m) and (1r) does not violate due process.

First, a little history. Prior to 1993, a trial court had discretion to forgive child support arrears. That year, the legislature created Wis. Stat. s.767.32(1r), which prohibited credit for support due prior to the date of bringing a motion seeing relief. A subsequent Wisconsin Court of Appeals decision, Douglas County Child Support Enforcement Unit. v. Fisher, 200 Wis.2d 807, 547 N.W.2d 801 (Ct. App. 1996), held that the courts cannot grant credit for child support payments not made in a manner prescribed by the judgment. In 1997, the legislature amended Wis. Stat. s.767.32(1r) to allow credit under certain limited circumstances. In Monicken v. Monicken, 226 Wis.2d 119, 593 N.W.2d 509 (Ct. App. 1999), the Court of Appeals held that the 1997 amendments applied retroactively. In the instant case, the father argued that retroactive application denied him due process of laws.

In 1982, Barbara B. and Dorian H. entered into a paternity judgment concerning their young son, John. Under the terms of the judgment, Dorian was required to pay $30 per week in child support. In 2001, when John was 21, Barbara brought an enforcement action against Dorian for nonpayment of child support. Dorian's defense was that the parties had orally agreed that he could stop paying child support in exchange for his stopping seeing the child. The trial court refused to apply the doctrine of equitable estoppel and concluded that retroactive application of Wis. Stat. s. 767.32(1r) is constitutional.

On appeal, Dorian argued that at the time of the judgment, the trial court had discretion to credit child support arrears. As a result, he argued that retroactive application of the subsequent statutes strictly limiting this discretion violates his right to due process under the state and federal constitutions. The Supreme Court, in a unanimous...