*1 Marriage re of : In Respondent, Eugenie E. Rintelman, v. Appellant-Petitioner. Donald C. Rintelman, Supreme Court May Argued April 25, No. 83-321. 1984. Decided 1984. reported (Also 498.) in 348 N.W.2d *2 appellant-petitioner by For the Doug- there were briefs Reed, Milwaukee, L. argument las and oral Reed. Mr. respondent For the there awas brief Lowell K. Levy, Levy Paul M. S.C., Cedarburg, Dimick and Levy, & argument by Levy. and oral Lowell K.
DAY, J. This is a review of a decision of the court appeals1 affirming an order circuit court for county, Swietlik, Judge, Ozaukee Hon. Walter Circuit denying (Petitioner) application Donald Rintelman’s termination of maintenance to his former wife Eugenie (Respondent). question Rintelman is: Does either sec. 767.32(3), public policy Stats.2 or vitiate *3 provision judgment incorporating stipula in a divorce provides tion that payments for maintenance “for the payee by lifetime” of the when it was understood parties payment payee would if continue even remarry? were to provision conclude that the lifetime maintenance
We
public
in this case is
of the
violation
statute
policy
life-
and that because the Petitioner
incorpo-
support payments
time
and that
was
estopped
judgment,
rated as
of the divorce
he is now
obligation.
requesting
from
termination of that
August 17,
Respondent
1978,
On
the Petitioner and
for
commenced a divorce action in the circuit court
1979,
county
joint
May 7,
petitioners.
Ozaukee
On
1
Marriage
206,
Rintelman,
In re
Rintelman v.
115 Wis. 2d
(Ct. App. 1983).
The was both counsel Respondent Eugenie for Rintelman. May hearing
Also on was held before the parties’ petition Honorable Swietlik Walter on Respondent Eugenie repre- divorce. The Rintelman was attorney hearing. Petitioner, sented Donald an at that appeared pro Rintelman, se. Both were questioned understanding as to their of the terms of the stipulation. transcript hearing final from the shows judge specifically questioned that the trial court the Pe- understanding titioner on his of whether the maintenance payments if continue re- were to marry. Paragraph provides “THE COURT: one further payments joint petitioner, these shall be made to your Mrs. Rintelman for her lifetime. Is it understand- ing irregardless *4 that these will continue of her remarriage? “MR. Yes, RINTELMAN: I that.” understand The provision also contained an escalator which provided payments the amount of the maintenance he annually according increased formula utilized in labor contract Telephone Company between the Wisconsin and the Com years 1977, munication Workers of America for interpretation 1979. The provision or use of this escalator at issue in this review. 1979, judgment July 26, trial court issued its
On dissolving marriage. stated that provisions Stipulation of the Final . . . are made “[t]he incorporated if hereof and herein reference as fully length set forth at herein.” August 20, Respondent 1980,
On remarried. On May 27, application 1982 the Petitioner filed an for remarriage payments upon termination of maintenance county August 16, with the Ozaukee circuit court. On 1982, obtained an order to show cause why contempt the Petitioner should not be in held for nonpayment of court ordered maintenance. September 3, 1982, hearing
On on both the application show cause and the for termination of main- Judge tenance was held before At Swietlik. hearing requested the trial court to sub- mit written January briefs on the issue. On denying issued its memorandum decision application for termination of maintenance. The Peti- appealed tioner appeals the court of affirmed which granted order of the trial court. This court Peti- petition tioner’s for review. previously
This court specific has not addressed question raised support this case. In of his conten- tion that he support obligation entitled have his terminated, primarily the Petitioner relies on the lan- guage 767.32(3), of sec. Stats. 1979-80. Petitioner argues that the use of the word “shall” that statute legislature’s evidences the intention that termination mandatory maintenance upon remarriage be payee. The Petitioner notes that no 767.32(3), sec. contains provision agreements for to continue maintenance remarriage argues after agreements that such should given not argues effect. The Petitioner further right neither request waived his termination obligation doing estopped nor is from so. *5 argues give to the Finally Petitioner effect the providing for lifetime violates maintenance following against payments public policy remarriage. upon provide
The statute the Petitioner relies
does not
for automatic termination of court ordered maintenance
payments upon remarriage
payee.
statute
the
The
provides
vacate
rather
shall
the
remarriage
payee
of maintenance
after the
the
upon application
payer.
payer spouse
If the
does
request
obligation
not
termination the
It
is
continues.
express
evident therefore that
does not
an
statute
public policy against
absolute
continuation of court or-
obligations
remarriage.
dered maintenance
after
Such
obligations can
payer
continue to exist if the
so chooses.
clearly contemplates
payer spouse
statute
a
can
spouse
payee
decide
support
remarries that the
after
obligation
requesting
shall continue
discontinu-
ance.
In this case,
prior
the Petitioner
time the
remarried that
the maintenance
during
Respondent’s
continue
life-
regardless
time
remarriage.
of her
question
prior agreement
whether
virtue of his
the Petitioner
requesting
foreclosed from
termination now.
analyzed
This court
rights
has
upon
that arise
incorporation of
into a divorce
on a
leading
number of occasions. The
case on the sub-
ject
Miner,
is Miner v.
10 Wis. 2d
mal out-of-court
is con-
judicial determination,
tractual, not a
no
and therefore
change
subject
more
the court than the terms
agreement.”
any
private
other
quent 477, cases. In Vaccaro v. Vaccaro, 67 2d 227 Wis. (1975), 62 N.W.2d this court stated the rule as follows: proper obligations “[T]he view that is contractual only expressly arise in situations where the court refers approves par- to and a formal between the merely adopts ties, and not where . . . the court parties’ joint to some extent modifies the recommenda- alimony, support property tions as to settlement.” 67 2dWis. at 486. also, See Schmitz, v. 70 2dWis. Schmitz 236 N.W.2d (1975). present In the case, the trial court examined the terms parties’ proposed expressed of the settlement as in the adopted judgment. final them its judgment provisions “[t]he stated that Final Stipulation part incorporated are made a hereof and fully length herein reference as if set forth at herein.” adjudicated category Thus, this case falls under the of an Respondent award rather than a contract and no has pay- contractual claim to the continuation of maintenance ments. The fact that the not have a con- does right receipt beyond her
tractual of maintenance remarriage legal grounds does mean she without enforcement, stipula- upon of the terms of the to insist In tion. other similar this court has held that situations agrees disposi- party a a certain when divorce obligations agree- parties’ tion of the financial and the part court, made a ment is seeking party estopped from from thereafter release agreement. Bliwas, In Bliwas v. terms of 47 Wis. (1970), adopted 2d N.W.2d 35 the trial aas of its amended order to an earlier divorce father con- parties’ stipulation decree the costs of his son’s education tinue to contribute age majority. As after child had reached *7 granted part of the father was a reduc- the same support payments in the child was tion the child while in and a The mother of the still school minor. child sought contempt pro- order in a to enforce the court ceeding. argued agreement father that the en- The was brought only separate proceeding in a the forceable reaching majority, guardian, upon or the child based on ab- appeal, held that court the law of contract. this On was agreement by parties, trial court an the sent support after the child j child without urisdiction to order However, age majority.4 because of reached the support of father to the had contribute incorporated in the that was adult son and estopped from order, court the father was thereafter an challenging authority to enter such of court order. The court stated: family court of a the enforcement hold “[W]e prior a without
order, be enforceable which would not 4 applicable provided: The statute sepa- legal annulment, rendering divorce “In a of ration, may provisions therein as further the court make such custody, care, just concerning mainte- deems and reasonable parties, . . . of the minor children nance and education added.)” 247.24, (1969) (Emphasis Sec. Stats.
595 of thé it be made of decree, in rests much the enforcement of so a con- obligation tractual jurisdiction or even extension of of recognizing court, person the agrees as it in does that a who something family be included a court order, especially agree- where he for receives benefit so ing, court’s poor position subsequently object is in a doing requested what he court do.” 47 2dWis. at 639-640. resting court made it clear that holding it was its estoppel on the doctrine of when it stated: “ appellant stipulated father, who [T] consented family that by twenty-first the his wife in enter an order for contribution beyond him education his son the son’s challenging birthday, estopped from now right family exactly joined court to do what he requesting at to do.” 47 2dWis. 641.
This court reiterated the rule stated in Bliwas v. Schmitz, Bliwas in Schmitz v. 2d Wis. N.W.2d (1975). question in that case was whether incorporated which judg- was into the divorce providing ment support that child until continue twenty-one years age child reached was enforce- legislature able after age majority reduced the eighteen years. The court first noted that in Bliwas *8 equitable the estoppel elements of present; clearly were “ i.e., against ‘action ... on the of the one whom estoppel the . . is asserted . which induces reliance another, thereon non- either in the form of action or ” action to ... his detriment. . . .’ 2d at 888 70 Wis. (quoting, Trucking, Co., v. Harris Hanz Inc. Brothers 254, 266, (1965)). 29 Wis. 2d N.W.2d held, however, distinguish- that the in Bliwas facts were estoppel inapplicable able that to doctrine was the case before it. in Bliwas Whereas the father age beyond support to contribute to the of the child support bargained to alternative lower majority a of minor, child a was while stipulation providing routine divorce in Schmitz was a twenty-one age support payments until the of for child age majority exist- of under the statute which was ing Subsequently into. was entered when age eighteen. legislature majority of lowered the twenty-one age “that the reference This Court concluded existing majority merely descriptive of the then was at the court held that 2d 889. Hence status.” 70 Wis. support properly estoppel apply did not and the was eighteen years age. became terminated when the child argues that present in the case The Petitioner applied against him estoppel not be doctrine of should any that he received benefit there no evidence because is payments. support lifetime to make for his effect, argues restrict that we should In the Petitioner party estoppel where the assert- to situations the use quo. quid pro ing specific estoppel point We can to a involving stipulations in- that, at least in cases- conclude parties stipulated cident a decree where divorce their comprehensive package a for the settlement obligations, require party show that financial un- specific unreasonable violation of a trade-off is one, need this all that warranted. In situations such as estoppel shown to constitute an both stipulation freely knowingly, entered into the il- equitable and not the overall settlement fair and legal against policy, party public and that one subse- quently the terms seeks to be released from grounds en- on the the court could not have agreement. parties’ tered did the order it without all Petitioner, and the trial court accepted stipulation. the under- It was terms
597 standing payments all that maintenance of concerned regard- during Respondent’s would continue lifetime undoubtedly or she is less whether not remarried. It impossible to know at this time whether the have would had it not contained provision Nevertheless, for lifetime maintenance. acceptance we conclude that her of the on the understanding that maintenance con- during tinue her lifetime is sufficient reliance her on estop requesting the Petitioner from termination upon subsequent remarriage. her
Furthermore, we find the Petitioner’s contention no received benefit from his to make life- support payments implausible. time It true the record specifically not does show that the Petitioner received something agreeing in return for to lifetime mainte- However, undoubtedly nego- nance.5 many it is true tiated impossible settlements that it identify after precisely the fact what was traded for what. The Pe- titioner does contend coerced, that he was misled bargaining disadvantage at a negotiating otherwise stipulation. Under the it circumstances is reasonable bargained assume that approximate equals, give and that final product result was a Although and take on both sides. the record does not provision reveal the value of the for lifetime maintenance give in the and take negotiations, it is unrealistic to assume had no all. value at
Finally, argues he should not deemed Petitioner given up “right” to have his to seek termination 5 recognize expressly Both statute and the interrela case law tionship between maintenance of marital awards and division property. Bahr, 767.26(3), Stats; Bahr v. 2d Section 107 Wis. 80, 854, 72, Dean, (1982) ; 318 N.W.2d v. 391 Dean 87 Wis. 2d Johnson, 137, (1979); 902 N.W.2d Johnson v. 2d 78 Wis. (1977). N.W.2d *10 represented obligation was not because he maintenance during negotiations therefore not and was the counsel 767.32(3), in the rule contained sec. Stats. aware of disagree. accept the Petitioner’s if as true Even we We about the existence that he was misinformed assertion any statute, differ- we fail to see how it makes of the compulsion in the Petitioner’s lack There is no ence. throughout negotiations the information. He was free of obliga- whereby a settlement his maintenance to seek remarriage, upon terminate the Petitioner’s tion would he to do so. Instead need the statute he did not notwithstand- to continue remarriage. Respondent’s ing was That knowingly negotiated. freely exam- The trial court incorporated stipulation its it into entire ined the judgment judgment. party time claimed at the Neither abused its discretion the trial court was entered that party stipulation. approving make either Nor does in may have fact that the Petitioner claim now. The negotiated 767.32(3), when he unaware of sec. been judg- bearing on whether the court’s has no given incorporating effect. should ment appeals By of the court of the Court.—The decision affirmed. disagree (dissenting). with the I
STEINMETZ, J. reasoning majority. send I would result and hearing to determine trial court for case back any, petitioner, re- ex-husband, benefits, if what compensation equitable mak- for in the divorce as ceived ing for mainte- to his commitment ex-wife a lifetime nance. represented divorce in the was The ex-husband right. certainly attorney.
proceedings was That an though on him asked trial court However, even lifetime commitment knew his record whether remarried, maintenance would continue even if his wife nothing showing there is in this record the ex-husband any consequences agreement. was advised tax consequences significant Tax are importance in a di- proceeding. vorce
Neither does display this record trial explained public policy expressed this state as 767.32, Stats., sec. judgments that all divorce are appropriate subjects of payee review if the has remar- ried after entered, only but payer if the *11 requests such review. The former husband’s lifetime commitment to maintenance flies in the face of estab- statutory public lished policy he, therefore, and have been by better served either the advice of an at- torney or at least a discussion the trial court on the record of the existence of the statute.
This history 1979 divorce not ancient incapable any, of what, reconstruction to determine if benefit the agreeing ex-husband received for to lifetime payments. If the evidence is unobtainable worthy regarding or not of consideration the unrecorded agreement, considerations of the settlement then the ex- husband showing would fail in his burden of the lack quid pro quo of for the commitment he made. past proceeding
In the in a had divorce we have before required by In us a commitment to not law. conditions Bliwas, 635, 640, Bliwas v. 47 2d 35 Wis. 178 N.W.2d gave (1970), a this court force to in a father divorce action to make certain twenty-first beyond the education of son his the son’s birthday. case, in that the father received However, quid pro quo for the commitment this court identi- which fied and relied on in its “Addi- decision. stated: We tionally, procured reduction in child benefit reaching support payments prior child, while majority, was in school.” There record disclosed 600 contrary promise, a benefit for his received
husband the instant case. estoppel at to arrive majority strains law identified; estoppel is not First, result. the form
its equitable estoppel. Equitable however, I assume pais estoppel estoppel are convertible terms. 1979) Dictionary, (5th Truck- In Hanz Law ed. Black’s ing, Co., Brothers Inc. Harris 2d v. Wis. (1965), City quoted we Milwaukee
tractual the or even extension of recognizing court, person that a who it does in agrees order, family something in a be included agree- especially so where he receives a for benefit ing, object poor position subsequently to»the is in a to doing requested court’s Wis. 2d at to do.” what he 595.) (Emphasis pp. 594, (Supra at 639-40. added.) ignores identify Then, majority requirement to any, agreeing received, to benefit the husband if for the commitment. majority opinion makes no on what comment
consequences estoppel of an if would be the ex-husband economically incapable making became the lifetime payments. be con- Would he able avoid tempt consequences non-ability pay; for the would unpaid arrearages amounts accumulate as be pay- able to have the court alter the amount of the ability pay ment to meet estopped ? If he is for equitable bargain theoretical benefit of the in the divorce proceedings, change ability pay does that if his changes? equitable give If estoppel applies settlement, take of the divorce can terms any re-examined only for reason or is it a condition of remarriage that would not for allow reexamination agreement? based on the
I appeals would reverse the court of and remand the hearing case to the trial court for a on the former hus- application pay- band’s for termination of maintenance hearing ments to his former wife. The include should proof, if any, of the husband’s benefits received making the lifetime commitment where he would bear showing him, the burden of the lack of benefit to since seeking Also, hearing is his motion should relief. *13 knowing, voluntary agreement of his determine issue light whether should be re-examined in of his nonrepresentation any consequences time, at the tax rele- 767.32, application vant to the and the of sec. Stats., since the trial court failed to advise him of the statutory provisions applied agreement. and how it to his
I am authorized to state that Justice J. LOUIS CECI joins dissenting opinion. in this
Dennis Plaintiff-Appellant-Petitioner, C. Streiff,
v. Family American Mutual Company, Insurance corporation, Wisconsin Defendant-Respondent.
Supreme Court Argued No. May 82-599. March 1984. Decided 1984.
(Also reported 505.) in 348 N.W.2d