COURT OF APPEALS DECISION DATED AND RELEASED AUGUST
22, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3143-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT I
In re
the Paternity of
ERICA
A.H.:
HILLARY
A.H. and
STATE
OF WISCONSIN,
Petitioners-Respondents,
v.
MICHAEL
J.B.,
Respondent-Appellant.
APPEAL
from a judgment of the circuit court for Milwaukee County: PATRICIA S. CURLEY, Judge. Affirmed.
Before
Wedemeyer, P.J., Fine and Schudson, JJ.
PER
CURIAM. Michael J.B. appeals from a
judgment of the circuit court awarding his minor daughter, Erica A. H., child
support of seventeen percent of Michael's gross income, commencing August 31,
1994, and setting Michael's child support arrearage at $70,715. Michael's appeal is limited to challenging
the arrearage awarded by the circuit court.
Pursuant to this court's order of December 21, 1994, this case was
submitted to the court on the expedited appeals calendar. See Rule
809.17, Stats. Upon review of the briefs and the
record, we affirm the circuit court's judgment.
BACKGROUND
Erica
A. H. was born on September 16, 1983, to Hillary A. H. On February 2, 1993, Hillary and the State
of Wisconsin commenced this paternity action against Michael. Hillary and Michael admitted to having an
intimate relationship during the time that Hillary became pregnant with
Erica. Hillary told the court that she
informed Michael of her pregnancy with Erica as soon as she became aware of it
and that Michael suggested to Hillary that she have an abortion, a suggestion
Hillary rejected. Hillary testified
that she telephoned Michael from the hospital to inform him of Erica's birth
and to make him aware that Erica was suffering from certain serious health
problems, problems that persist to the present. The record was undisputed that Erica and Hillary have resided across
an alley from Michael's mother since Erica's birth.
Michael
testified that he first became aware of Erica's birth when he received the
petition for adjudication of paternity, approximately ten years after her
birth. After the parties and Erica submitted
to blood tests, however, Michael stipulated that he was the father of Erica.
The
trial court ordered Michael to pay child support beginning August 31,
1994. The trial court also awarded
Erica past support equal to seventeen percent of Michael's income for that
period of time commencing at Erica's birth until August 31, 1994. The trial court rejected Michael's request
pursuant to § 767.51(5)(j), Stats.,[1]
that the court apply the doctrine of equitable estoppel to modify the amount of
past support due. Applying the
percentage standard set forth in § 767.51(4m), Stats.,[2]
to Michael's past earnings, the trial court calculated the amount of arrearage
to equal $70,715.
DISCUSSION
Michael's
appeal raises two issues with respect to the trial court's award of arrearage:
(1) whether the trial court failed "to correctly apply the factors set out
in Section 767.51(5), Stats., by
not considering the respondent-appellant's ability to pay an arrearage [or] the
needs of the child[;]" and (2) whether the trial court erred by "not
construing Section 767.51(5)(j) to permit the trial court to apply the doctrine
of equitable estoppel to preclude an award of child support prior to February
11, 1993[.]"
The
record discloses that Brown's objection to an arrearage award before the trial
court turned solely upon his contention that Hillary's alleged ten-year period
of silence regarding Erica's existence should bar an arrearage award pursuant
to the doctrine of equitable estoppel under In re Harms, 174
Wis.2d 780, 498 N.W.2d 229 (1993).
Accordingly, we limit our consideration of his appeal to that
issue. See Wirth v. Ehly, 93
Wis.2d 433, 443-44, 287 N.W.2d 140, 145 (1980) (appellate court will generally
not review an issue raised for the first time on appeal).
Because
the facts dispositive of the single issue presented by this appeal are
undisputed, the question presented for our review is one of law. See First Wisconsin Nat'l Bank v.
Nicolau, 113 Wis.2d 524, 537, 335 N.W.2d 390, 396 (1983). Accordingly, we decide this issue
independently and without deference to the decision of the trial court. Ball v. Dist. No. 4 Area Bd., 117
Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).
We
begin by summarizing the facts underlying the Harms case. Mr. and Mrs. Harms were divorced in
1979. The sole custody of the couple's
two minor children was awarded to Mrs. Harms.
Harms, 174 Wis.2d at 781, 498 N.W.2d at 230. The divorce judgment provided in pertinent
part that Mrs. Harms was prohibited from moving the residence of the children
more than fifty miles from Powers Lake, Wisconsin, without first obtaining the
written consent of Mr. Harms or an order of the court. Id. at 782, 498 N.W.2d
at 230. Notwithstanding the language of
the judgment, Mrs. Harms moved the children to Florida in 1980. Shortly thereafter, Mr. Harms received a
certified letter from Mrs. Harms informing him of the move and stating that she
no longer expected him to pay child support or hospital insurance. Upon receiving the letter, Mr. Harms
immediately ceased paying child support.
Id.
Seven
years passed. In 1987, Mrs. Harms filed
a motion requesting the trial court to hold Mr. Harms in contempt, alleging
that he had willfully and intentionally failed to pay child support ordered by
the court. Id. at
782-83, 498 N.W.2d at 230. The trial
court entered a judgment holding Mr. Harms in contempt of court for his failure
to pay past due child support. The
judgment also held that § 767.32(1m), Stats.,[3]
precluded the court from awarding any credit against the arrearage. Id. at 783, 498 N.W.2d
at 230. Mr. Harms appealed. The supreme court vacated the circuit
court's judgment of contempt and remanded the case for further
proceedings. Id. On remand, Mr. Harms moved the circuit court
to dismiss his ex-wife's contempt motion on the ground of equitable
estoppel. Id. at 784,
N.W.2d at 231. The trial court
determined that equitable estoppel was inapplicable to bar the action for past
due child support and that Mr. Harms was liable for such support. Id. Mr. Harms again appealed.
Id.
The
supreme court reversed the trial court, holding that the "extrajudicial
agreement between Mr. Harms and Mrs. [Harms] is enforceable via the doctrine of
equitable estoppel." Id.
at 785, 498 N.W.2d at 231. The
defense of equitable estoppel requires a showing of three elements: action or
inaction, which induces reliance by another, to his or her detriment. Id. Applying these elements, the court
determined that Mrs. Harms had taken two actions. The court determined that Mrs. Harms's first action was to
violate the divorce judgment by moving the children to Florida and her second
action was to send the certified letter to Mr. Harms informing him that she no
longer expected him to pay child support.
The court observed that Mr. Harms relied on these actions and
discontinued his child support payments.
Id. As a
result of this reliance, the court further determined that Mr. Harms forfeited
his right to challenge the removal of the children from the fifty-mile radius
contemplated by the judgment and lost his ability to "meaningfully and
regularly visit his children, who have now reached the age of majority." Id. In light of these unique facts, the supreme
court concluded that equitable estoppel was available to bar Mrs. Harms's
action to collect child support arrearages.
Id. at 781, 498 N.W.2d at 230.
The
facts critical to the outcome of Harms are not present here. This case does not involve an action to
enforce an extrajudicial agreement. In
addition, this case does not involve the violation of a court order barring the
removal of a child to another state or an attempt by a custodial parent to
avoid potential enforcement of such a court order by absolving the payor from
future support. Cf. Douglas
County Child Support Unit v. Fisher, 185 Wis.2d 662, 669-670, 517
N.W.2d 700, 703 (Ct. App. 1994) (court distinguished Harms,
concluding that removal of children to another state pursuant to stipulation
and order did not violate judgment and thus equitable estoppel not available to
defeat action to collect child support).
In
light of the foregoing discussion, we conclude that Harms is
distinguishable from the present case and, therefore, does not furnish a basis
upon which to apply the doctrine of equitable estoppel to preclude an award of
child support arrearage. We further
note that the doctrine of equitable estoppel applied in Harms has
not been extended to paternity cases involving past child support. In light of these circumstances, we conclude
that the trial court did not err by declining to apply the doctrine of
equitable estoppel to preclude Erica's claim to past child support.
By
the Court.—Judgment
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Section
767.51(5), Stats., provides in
pertinent part:
(5) Upon request by a party, the court may
modify the amount of child support payments determined under sub. (4m) if,
after considering the following factors, the court finds by the greater weight
of the credible evidence that use of the percentage standard is unfair to the
child or to the requesting party:
....
(j) Any other factors which the court in each case determines are
relevant to the best interests of the child.
[2] Section
767.51(4m), Stats., provides that
"[e]xcept as provided in sub. (5), the court shall determine child support
payments by using the percentage standard established by the department of
health and social services under s. 46.25(9)."
[3] Section
767.32(1m), Stats., provides the
following:
In an action under sub. (1) to
revise a judgment or order with respect to child support, maintenance payments
or family support payments, the court may not revise the amount of child
support, maintenance payments or family support payments due, or an amount of
arrearages in child support, maintenance payments or family support payments
that has accrued, prior to the date that notice of the action is given to the
respondent, except to correct previous errors in calculations.