IN RE the MARRIAGE OF: Toni L. (Dumler) ROTTSCHEIT, Petitioner-Respondent, STATE of Wisconsin, Respondent, v. Terry L. DUMLER, Respondent-Appellant-Petitioner.
No. 01-2213
Supreme Court of Wisconsin
June 25, 2003
2003 WI 62 | 262 Wis. 2d 292 | 664 N.W.2d 525
Oral argument December 3, 2002.
For the respondent there was a brief and oral argument by Frank R. Vazquez, Clark County Corporation Counsel.
An amicus curiae brief was filed by Scott A. Sussman, Madison, and Anne Arnesen and Carol W. Medaris, Madison, on behalf of the Center on Fathers, Families, and Public Policy and the Wisconsin Council on Children and Families.
¶ 1. JON P. WILCOX, J. This is a review of an unpublished court of appeals summary decision, Rottscheit v. Dumler, No. 01-2213, order (Wis. Ct. App. April 2, 2002), which affirmed an order by the Clark County Circuit Court, Jon M. Counsell, Judge, denying Terry Dumler‘s (Dumler) motion for modification of his child support order. Dumler, the petitioner, was incar
I
¶ 2. The following facts are undisputed. Dumler married Toni Dumler2 (now Rottscheit) on April 19, 1989. They had three children: Jeffrey Lee, born October 22, 1987; Greggory Douglas, born October 4, 1988; and Trenten Michael, born November 30, 1990.
¶ 3. In 1990, Rottscheit filed for divorce. The parties entered a stipulated divorce, and Rottscheit received custody of their three minor children. The judgment of divorce was signed on July 7, 1992, and, consistent with state guidelines, provided that Dumler was required to pay 29 percent of his gross income for child support. In 1998, Dumler‘s child support order was reconciled to a fixed amount set at $543 dollars per month.4
¶ 4. In 1999, Dumler was convicted under
¶ 5. In January 2000, Dumler entered the Racine Correctional Institution. He initially earned wages of approximately $60 per month from working at the institution. However, 25 percent of this amount had to be withheld to pay court fines. While incarcerated,
¶ 6. On May 21, 2001, Dumler petitioned the circuit court for a modification of the child support order. He claimed that as a result of his incarceration, he could not make the child support payments. At the time of the petition, Dumler acknowledged that he was over $12,500 in arrears. He requested that the child support order be suspended during his incarceration or, alternatively, modified to 29 percent of his institutional wages. He asserted that if the order was not modified, he would accumulate over $25,000 in back arrearages, not including interest.
¶ 7. The circuit court held a hearing on the motion on August 1, 2001. Dumler appeared by telephone without counsel. At the hearing, Dumler stated that he had a pay rate of 28 cents an hour for approximately 160 hours per month, and thus made just under $45 per month. He acknowledged that the child support order had been set at a level he could pay when not incarcerated. Dumler explained that he would owe in excess of $25,000 if he was not granted relief, and that because the child support agency had a lien on him, it was unlikely that he could get a loan.
¶ 8. In response to questioning from the court, Dumler testified about his criminal record. As noted, at the time of the hearing, Dumler was serving a three-year sentence, one year for cocaine possession and two years for his fifth or greater OWI offense. Dumler acknowledged that he had been involved in 11 criminal court cases since 1986, although there were not convictions in all cases. He further admitted that at least three prior OWI convictions had resulted in incarceration. Also, the hearing record indicates that the one-year sentence for cocaine possession resulted from a
¶ 9. The circuit court held that Dumler‘s child support order should not be modified. The court found that Dumler‘s financial condition was Dumler‘s fault and resulted from Dumler‘s voluntary actions. The court further explained:
This is not a situation where you need to wilfully avoid [] child support duty. In other words, he may not have had this intent in mind when he was deciding that he was going to [do] something involving him going to prison, but the consequences of prison were known, and really under the circumstances presented here, and given the intentional decision to drink and drive, intentional decision to possess cocaine, the intentional decision to undergo an act which resulted in the revocation of that probation, involved a definite effect on his future income, but looking at the fact that he will be—he‘s in treatment now which should improve his future employment prospects, and in considering everything else presented here, along with the fact that the children‘s needs don‘t go down just because somebody‘s put in prison, upon release from prison and after becoming gainfully employed, he could pay on these arrearages, and so I think it is appropriate that the order not be modified.
II
¶ 11. The decision whether a child support judgment should be modified is left to the circuit court‘s discretion. Abitz v. Abitz, 155 Wis. 2d 161, 174, 455 N.W.2d 609 (1990). Under
¶ 12. As noted, the issue before this court is whether the circuit court erroneously exercised its discretion by denying Dumler‘s motion for modification of his child support order under the circumstances presented. We point out that the question is not whether we agree with the circuit court‘s ruling, but rather, whether the circuit court acted within the realm of its discretion. We hold that it did.
¶ 13. Dumler argues that the court erred in rejecting his motion for modification because incarceration has reduced his income to approximately $45 per month and he has no other assets that may be used to pay child support. Dumler claims that the circuit court erroneously focused upon the “voluntariness” of Dumler‘s criminal actions and ignored the economic realities faced by incarcerated parents. The State agrees that courts may consider incarceration in determining a motion for modification, but asserts that incarceration should only be one factor in the court‘s exercise of discretion.
¶ 14. We find that no per se rule applies to incarceration. We generally agree with the approach taken by the court of appeals. We find that incarceration is a factor that gives a court competence to review a child support order and, further, that it is an appropriate factor for courts to consider as they decide whether they “should exercise [] discretion to modify child support.” Voecks, 171 Wis. 2d at 188 (emphasis added). However, the fact of incarceration should not, in and of itself, be determinative. The totality of circumstances surrounding the incarceration deserves examination.
¶ 16. Under
¶ 17. Section
¶ 18. Other circumstances listed under
¶ 19. Although this court has not previously had the opportunity to consider the effect of incarceration upon child support obligations, the court of appeals has handled this type of case on several occasions. In Parker, 152 Wis. 2d at 2-3, 6, the court of appeals upheld a circuit court‘s determination that a father‘s incarceration for felony theft was not a substantial change in circumstances warranting modification of his child support obligation. Parker had a child support obligation of $40 per week for his two children. Id. at 3. Years after his divorce, Parker was convicted of theft and received a stayed five-year sentence. Id. While he was on probation, he was found in contempt for failure to pay child support. Id. He was over $22,000 in arrears. Id. A year after his conviction for theft, Parker‘s probation was revoked and he was sent to prison. Id. Parker did not work at the prison, but he received a stipend of eight cents an hour for 40 hours a week. Id. He had no other assets. Id. The court of appeals, in affirming the denial of Parker‘s motion for modification, held that
¶ 20. In Voecks, 171 Wis. 2d at 186, the court of appeals upheld a circuit court determination in favor of modifying a child support order during incarceration. The court found that the circuit court had the authority to modify the order and properly exercised its discretion to do so. Id. William Voecks was convicted of being party to the crime of cocaine delivery and was sentenced to seven years in federal prison. Id. Prior to his incarceration, Voecks had a $55 per week child support obligation. Id. At the time of his motion for modification, Voecks had almost $10,000 in arrearage. Id. at 187. He would be incarcerated until after his daughter reached the age of 18. Id. Voecks earned $65 per month in prison. Id. The circuit court modified his child support order to $25 per month. Id.
¶ 21. In affirming the circuit court‘s decision, the court of appeals rejected the argument that the incarceration at issue was analogous to “shirking” cases. “Shirking” cases arise where a payer voluntarily fails to exercise his or her full capacity to earn in order to avoid the obligation to pay child support. Id. at 188; see also Sellers v. Sellers, 201 Wis. 2d 578, 587, 549 N.W.2d 481 (Ct. App. 1996) (noting more broadly that shirking may
¶ 22. These cases show the great amount of discretion given to the circuit court in setting and modifying child support. As shown by the court of appeals’ decisions, in these situations, the circuit court is in the best position to examine the relevant circumstances and determine whether a modification is appropriate. See Sellers, 201 Wis. 2d at 594-95 (“[W]e ultimately must trust the sound judgment of the trial court because the outcome in divorce cases is intensively fact specific for each case.“).
¶ 23. In the context of the determination of an initial child support order, the court of appeals has had an opportunity to review its approach to the situation of incarceration it enunciated in Parker and Voecks. See Modrow v. Modrow, 2001 WI App 200, 247 Wis. 2d 889, 634 N.W.2d 852. In Modrow, the court of appeals found that incarceration was an appropriate factor to consider in setting child support. Id., ¶ 17. Since the payer was incarcerated, the court of appeals deemed it appropriate to use earning capacity to set child support. Id.,
In light of [the payer‘s] OWI history, he is reasonably held to have anticipated that further OWI conduct would result in his incarceration and interfere with the ability to support his children. A parent remains obligated to make reasonable choices that will not deprive his or her children of the support to which they are entitled.
Id.
¶ 24. Not surprisingly, many other states have dealt with the issue of incarceration as it relates to child support obligations, and the outcomes have varied greatly. State courts are significantly divided over the effect of incarceration upon a person‘s child support obligations. Like Wisconsin, most states are reluctant to grant modification of child support obligations where the payer has purposely attempted to avoid paying child support or voluntarily and unreasonably decided to reduce his or her income. For example, the Supreme Court of Oregon has held that a motion for modification of child support can be denied when the payer is incarcerated, if it is also shown that the criminal action was ” ‘not taken in good faith but was for the primary purpose of avoiding the support obligation.’ ” Willis v. Willis, 840 P.2d 697, 699 (Or. 1992) (emphasis in original omitted). As we have noted, in Wisconsin, cases involving this type of behavior are known as “shirking”
¶ 25. Some courts have determined that, at least where there is no evidence of intentional avoidance of child support, an incarcerated parent is entitled to a reduction of his or her child support obligation. See Bendixen v. Bendixen, 962 P.2d 170 (Alaska 1998) (finding that incarceration is not the equivalent of voluntary unemployment); Nab v. Nab, 757 P.2d 1231 (Idaho Ct. App. 1988); In re Marriage of Barker, 600 N.W.2d 321 (Iowa 1999) (establishing a blanket rule that inability to meet an existing support obligation during incarceration entitles a prisoner to a reduction during incarceration); Wills v. Jones, 667 A.2d 331 (Md. 1995) (holding that unless there is evidence that the crime committed was for the purpose of becoming incarcerated or impoverished, a prisoner is entitled to modification of a support order); Pierce v. Pierce, 412 N.W.2d 291 (Mich. Ct. App. 1987) (holding that where an incarcerated person has no assets or income with which to pay child support or arrears, leaving a judgment in place benefits no one and constitutes additional punishment, and as such, a reduction is appropriate); Johnson v. O‘Neill, 461 N.W.2d 507 (Minn. Ct. App. 1990); Leasure v. Leasure, 549 A.2d 225 (Pa. Super. Ct. 1988) (finding that incarceration is not analogous to a voluntary decrease in income and that where a prisoner lacks assets with which to pay child support, the support order may be suspended).
¶ 27. As can be seen from some of the cases noted above, state courts have also differed about what constitutes “voluntary” unemployment or reduction in income. For instance, in Furman v. Barnes, 739 N.Y.S.2d 655, 656 (N.Y. App. Div. 2002), a New York court held: “Dismissal [of the petition for modification of a child support order] was entirely proper since petitioner‘s incarceration and loss of employment was occasioned solely by his wrongful conduct and resultant felony conviction.” The Supreme Court of Montana agrees: “‘Father should not be able to escape his financial obligation to his children simply because his misdeeds have placed him behind bars. The meter should continue to run.’ ” Mooney v. Brennan, 848 P.2d 1020, 1023 (Mont. 1993) (internal citation omitted). In Richardson v. Ballard, 681 N.E.2d 507, 508 (Ohio Ct. App. 1996), the Ohio Court of Appeals reconsidered its previous precedents to hold that incarceration for criminal conduct is voluntary. Citing another Ohio Court of Appeals case, the Richardson court stated:
A parent cannot, by intentional conduct or mere irresponsibility, seek relief from this duty of support. Defendant, who by his own wrongful conduct placed himself in a position that he is no longer available for gainful employment, is not entitled to relief from his obligation to support his child. Incarceration was a foreseeable result of his criminal conduct and is thus deemed a voluntary act in and of itself.
¶ 28. Some courts have refused to reduce child support orders on the basis of the clean hands doctrine. For example, in Koch v. Williams, 456 N.W.2d 299, 301 (N.D. 1990), the Supreme Court of North Dakota held that incarceration was voluntary and that “no modification is warranted because the obligor, by voluntarily placing herself or himself in a less financially secure position, is without clean hands and precluded from seeking equity.”
¶ 29. In contrast to the cases above, the Supreme Court of Alaska has held:
Although incarceration is often a foreseeable consequence of criminal misconduct and all criminal acts are in some sense voluntary, non-custodial parents who engage in criminal misconduct seldom desire the enforced unemployment that accompanies incarceration; nor can they alter their situation; and, in stark contrast to parents who consciously choose to remain unemployed, jailed parents rarely have any actual job prospects or potential income.
IV
¶ 30. We agree with the court of appeals and the line of cases from other states that find parents with child support obligations should not automatically be rewarded with a payment reduction as a result of incarceration. While we acknowledge the financial effects of incarceration, the preceding discussion persuades us there are strong reasons why parents should not necessarily be excused from their child support obligations. This section addresses the reasons for this conclusion and the balance we believe is appropriate. Incarceration is an appropriate factor for courts to consider in reviewing a motion for modification, but the fact of incarceration alone is insufficient for a court to modify, or refuse to modify, a child support order. The court of appeals has laid appropriate groundwork for these types of cases. We now clarify the appropriate factors to consider relating to incarceration. We conclude that the circuit court here properly exercised its discretion and, as such, we affirm.
¶ 31. As the Wisconsin Statutes make clear, parents have a duty to support their children. See, e.g.,
¶ 32. By having a child, a parent takes on a long-term responsibility—one that cannot be traded in or negated by bankruptcy. See Mascola v. Lusskin, 727 So. 2d 328, 332 (Fla. Dist. Ct. App. 1999). Children‘s fundamental needs for survival exist whatever choices parents may make in life. Historically, there have been problems with enforcement of child support orders. See Parker, 152 Wis. 2d at 4 (“The failure of the current child support payment system is well documented.“). As of 1999, slightly over half of custodial parents nationwide that had child support awards received none or only part of the child support payments that were due them. See Timothy Grail, Custodial Mothers and Fathers and Their Child Support, Current Population Reports, United States Census Bureau, 5 (October 2002). Recent statistics show that over 26.1 percent of custodial parents live at poverty status. Id. at 3. These considerations show the importance of maintaining public policies that emphasize parental responsibility and promote payment of child support.
¶ 33. Dumler argues that enforcing his existing child support order and allowing arrears to accumulate essentially constitutes punishment. We disagree. In Parker, 152 Wis. 2d at 5, the court of appeals stated: “[T]he issue is not whether Parker can be punished for failing to pay support. The issue is whether he is entitled to eliminate the accumulation of
¶ 34. Child support is supposed to be among a parent‘s top priorities. A person who is incarcerated is not excused from his or her car payments, house payments, or credit card bills. While it is true that under
¶ 35. Further, child support is supposed to reflect what is in the best interests of the child. Dumler asserts that allowing arrearages to accumulate during incarceration should not be allowed because it is of no benefit to the child. We disagree with that argument in that arrearages represent money to which the child is entitled. While a parent is incarcerated, the child is forced to do without that money. A child should not necessarily
[T]he only person to benefit if support is suspended would be [the incarcerated parent]. The purpose of the child support system is to protect the child and his best interest. Depriving a child of financial support solely because his or her parent committed a criminal act does not serve that interest.
Richardson, 681 N.E.2d at 508 (emphasis in original, internal citation omitted).
¶ 36. However, this court also recognizes the financial difficulties incarceration can create. We agree with Dumler that allowing arrearages to accumulate endlessly would discourage a parent from even attempting to pay down the debt. However, we do not agree that Dumler‘s case necessarily fits that paradigm. Admittedly, $25,000 is a great deal of money, but it is not such an exorbitant or insurmountable amount that a judge would have to find it beyond Dumler‘s ability to pay over time. Child support payments are to be held to a reasonable standard.
¶ 37. Dumler has also asserted that he will likely face the threat of enforcement by the child support agency and potential prosecution for unpaid child support once he is released because of the accumulated arrearages. He noted to the circuit court that he already had a lien. While we agree that unpaid child support may lead to enforcement action, we are not persuaded that such a result is inevitable. Again, Dumler may seek modification based on the circumstances following his release. Also, Dumler can and should cooperate with the child support agency in negotiating a payment plan to avoid further administrative enforcement and to begin paying down the arrearages.9
¶ 40. Dumler asserts that unless the offense relates to avoidance of child support, the nature of the offense is irrelevant. We strongly disagree. We believe that a parent‘s behavior, or course of conduct over a period of time, may be very relevant to child support determinations. Modrow provides a good example, particularly in light of the circumstances raised here. In Modrow, as here, the court noted that the defendant was incarcerated for his fifth OWI offense. There, the court of appeals set child support based on earning capacity, finding that although alcoholism is a disease, the incarcerated parent made the choice to drive while intoxicated. Modrow, 247 Wis. 2d 889, ¶ 21. Given the parent‘s history of offenses, the court of appeals found that incarceration and interference with ability to pay child support were foreseeable results. Id. We agree. In the case before us, Dumler had been incarcerated for the same offense on previous occasions. Dumler had accumulated arrearages from those previous periods of incarceration. He was well aware of the impact incarceration had on his ability to pay, yet he continued to behave in the same manner. This pattern of offenses at
¶ 41. On the other hand, incarceration does affect a person‘s present economic situation. The court of appeals and courts in other jurisdictions have devised factors for courts to consider in dealing with incarceration. We believe such factors are appropriate. For example, one court found:
In exercising its discretion to determine the appropriate amount of child support applicable to an incarcerated parent who lacks assets, the trial court must consider a variety of factors, including (1) the length of incarceration experienced for the current conviction and the anticipated remaining period of incarceration, (2) the earning potential of the incarcerated parent following release, (3) the amount of the existing child support award, and (4) the total amount of child support that will accumulate upon the incarcerated parent‘s discharge.
Oberg v. Oberg, 869 S.W.2d 235, 238 (Mo. Ct. App. 1993). In Parker, 152 Wis. 2d at 6, the court of appeals found that a court “may consider the intentional nature of the crime involved, the likelihood of future income, and other relevant evidence.” In Modrow, 247 Wis. 2d 889, ¶ 17, the court of appeals reiterated these factors and added to them, stating that a court should also consider incarceration‘s “potential effect on the pay[e]r‘s future income” and “how the needs of the children will be met during the pay[e]r‘s incarceration.” We agree with these courts. In dealing with incarceration, we hold that a court should examine factors
¶ 42. In both setting and reevaluating child support orders, courts are called upon to examine the particular circumstances arising in the case to make determinations. As we have discussed, incarceration is an appropriate factor for a court to consider. We believe the approach taken by the court of appeals is correct. Incarceration is a change in circumstance sufficient to give a court competence to review a child support order. See Voecks, 171 Wis. 2d at 188. However, incarceration
¶ 43. In applying the relevant factors to this case, we find that the circuit court properly exercised its discretion. As we have already discussed, circuit courts may consider the circumstances surrounding incarceration, including the nature of the offense. The circuit court appropriately did so here. Dumler acknowledged to the circuit court that he had been previously incarcerated for OWI offenses. In fact, Dumler agreed with the circuit court that he had been involved in 11 criminal court cases since 1986.11 We have discussed the reasonable implications of such a continued course of criminal conduct. The circuit court was within its discretion to consider this behavior as a factor.
¶ 44. In response to the court‘s questioning regarding whether he knew the consequences of his criminal actions, Dumler agreed that he did, and specifically added that, in the past, when he has been released from incarceration, he has “always gotten out and paid my child support.” He admitted he was sometimes slow, but he nonetheless made the payments. Based on such testimony and the defendant‘s background, it is perfectly reasonable for a circuit court to
¶ 45. Dumler informed the court that if he were not granted relief, his arrearages would accumulate to over $25,000 by the time of his release. We agree that this is a significant amount of money. The record also indicates that Dumler has no assets that could be used to pay child support while he is incarcerated. There was no evidence in the record regarding Dumler‘s eligibility for work release, but, as the circuit court was aware, Dumler made approximately $45 per month from his work at the prison. According to the record, Dumler‘s child support obligations, other than existing arrearages and interest, will be diminishing and then ending within the next seven years.
¶ 46. The circuit court specifically discussed Dumler‘s sentence with him during the modification hearing. Dumler‘s period of incarceration is relatively
¶ 47. The circuit court found that there was no indication that the needs of Dumler‘s children had changed during his incarceration. The child support agency pointed out to the court that it appeared Rottscheit would have to pick up the additional economic burden of supporting the children caused by Dumler‘s incarceration.
¶ 48. Finally, we note that in setting the child support order in place at the time Dumler requested modification, the circuit court followed the general rule of applying the percentage guidelines. As such, to modify an award the court would again be called upon to consider the fairness of modification to the parent and the children. Under these circumstances, a circuit court may appropriately find that fairness weighs in favor of the child.
¶ 49. For the foregoing reasons, we find, as did the court of appeals, that the circuit court properly exercised its discretion in denying Dumler‘s motion for
By the Court.—The decision of the court of appeals is affirmed.
¶ 50. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting). I agree with the majority opinion‘s conclusion that a parent‘s incarceration is a factor for circuit courts to consider in deciding whether there has been “a substantial change of circumstances sufficient to justify revision of the judgment or order.”1 I also agree with the majority opinion that an incarcerated parent is not automatically entitled to a reduction in child support. Rather, as the majority opinion properly explains, a circuit court must consider the totality of the circumstances in any given case.
¶ 51. I disagree with the majority opinion, however, when it concludes that a circuit court may refuse to modify an incarcerated parent‘s child support order based on the nature of the underlying offense and the parent‘s moral culpability in committing the offense that led to incarceration.
¶ 52. A parent‘s moral culpability in the events that lead to a change in circumstances is relevant when considering a request to modify child support to the extent that it demonstrates an intent to reduce available income or assets to avoid paying child support.
¶ 53. The majority opinion is correct when it rejects the argument that incarceration is analogous to shirking.3 Aside from parents who are incarcerated for failing to pay child support, parents do not commit criminal acts leading to incarceration in order to avoid having to pay child support. Prison is a devastating and dangerous place, and the consequences of a criminal conviction and a term of incarceration extend well
¶ 54. Nevertheless, the majority opinion condones the circuit court‘s conclusion that the father intentionally committed his crime, knowing that prison and a reduction in income would be the consequence, and its consequent refusal to modify his child support order. While expressly rejecting the idea that incarceration is analogous to shirking, the majority opinion adopts a shirking analysis in order to uphold the circuit court‘s decision in the present case when it writes that circuit courts may consider “the intentional nature of the crime” and the “nature of the offense and the relevant course of conduct leading to incarceration.”5
¶ 55. The vast majority of crimes, by definition, require that the offender act voluntarily and with the intent to commit the crime. Moreover, it is always foreseeable that criminal activity will have consequences, including incarceration and loss of income. Permitting these factors to be considered in all cases will necessarily tip the balance against modifying child support for incarcerated parents.
¶ 56. Once a court determines that a parent is not incarcerated because of his or her failure to pay child
¶ 57.
¶ 58. That a parent cannot pay the full support order while in prison and will accumulate arrearages is not determinative of modifying the support order. In some cases, the parent might reasonably be able to pay the arrearages after release. In other cases, maintain-
¶ 59. The factors set forth herein reflect a fair and equitable approach to the real circumstances facing an incarcerated parent and are the factors that a court should consider in cases where a parent seeks to modify a child support order due to incarceration. Cases in other jurisdictions support this approach.8
¶ 60. Using this approach, I conclude that the circuit court erroneously exercised its discretion in the present case when it failed to give reasoned consideration to the individual facts presented in this case.9 The circuit court focused almost exclusively on the prisoner‘s criminal conduct. It did not consider any of the other relevant factors. See the circuit court reasoning quoted at majority opinion, ¶ 9.
¶ 62. There are also strong public policy reasons for modifying the order in this case. Child support amounts are set, as the majority opinion points out, to ensure that a child‘s standard of living should, to the degree possible, not be adversely affected because his or her parents are not living together.10 While modifying the father‘s child support order here will undermine this goal in the short term, failing to modify the order will undermine this goal in both the short term and the long term, and will certainly not benefit his children.
¶ 65. Recent studies, as the majority opinion notes, demonstrate the importance of maintaining public policies that emphasize parental responsibility and promote payment of child support.14 Reasonable support orders, that is, orders within the ability of the parent to pay, foster these public policies. Unreasonably high or low support orders do not. I agree with the arguments in the amicus brief of the Center on Fathers, Families and Public Policy and the Wisconsin Council on Children and Families, concluding that child support orders that are beyond a noncustodial parent‘s ability to pay are not in the best interests of the child.15
¶ 66. For the foregoing reasons, I would reverse the decision of the court of appeals and remand the cause to the circuit court to apply the proper standards to determine whether the support order should be reduced.
¶ 67. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
Notes
Applicability of alternative payment plans. When the department or a child support agency enforces a lien through seizure of real property or personal property, seizure of financial accounts, or denial, nonrenewal, restriction, or suspension of licenses, the payer may negotiate an alternative payment plan with the child support agency.
Under
As the father explained to the circuit court in the present case:
There is no way I can pay that [$25,000] off. . . . [T]o have this kind of debt to come out, that‘s just saying that I‘m probably going to relapse, or just go to work and find a small job, and that‘s just pushing me away. You‘ve got no incentive to do anything.