PUBLISHED OPINION
Case No.: 95-1960
††Petition
for Review Denied
Complete Title
of Case:
DOUGLAS COUNTY CHILD
SUPPORT ENFORCEMENT UNIT
FOR DIANNE NIEMI,
Petitioner-Appellant,
v.
ROBERT P. FISHER,
††Respondent-Respondent.
Submitted on Briefs: February 5, 1996
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: March 12, 1996
Opinion Filed: March
12, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Douglas
(If "Special", JUDGE: Joseph A. McDonald
so indicate)
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented: Cane, P.J.
Appellant
ATTORNEYSFor the
petitioner-appellant the cause was submitted on the briefs of Joseph J.
Mihalek of Fryberger, Buchanan, Smith & Frederick, P.A., Duluth,
Minnesota.
Respondent
ATTORNEYSFor the
respondent-respondent the cause was submitted on the brief of Chris A.
Gramstrup, Superior.
COURT OF APPEALS DECISION DATED AND RELEASED March 12, 1996 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1960
STATE
OF WISCONSIN IN COURT OF
APPEALS
DOUGLAS COUNTY CHILD
SUPPORT ENFORCEMENT
UNIT
FOR DIANNE NIEMI,
Petitioner-Appellant,
v.
ROBERT P. FISHER,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Douglas County:
JOSEPH A. McDONALD, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Dianne Niemi appeals a
judgment ordering Robert P. Fisher to pay $3,000 in arrearages. The trial court determined that while Fisher
had arrearages of over $18,000 calculated from the records of the clerk of
court, Fisher should be credited for direct payments he made and for the period
of time his son lived with him. Niemi
contends that: (1) the trial court lacked
power to grant Fisher a credit against his arrearages; (2) if the trial court
had the power to grant the credit, it erroneously exercised its discretion by
requiring Fisher to pay only $3,000 in arrearages; and (3) the trial court
erred when it denied Niemi's motion for statutory interest on the arrearages
under § 767.25(6), Stats. We conclude that the trial court lacked
power to grant Fisher a credit against his arrearages and erred when it denied
Niemi statutory interest.[1] Therefore, we reverse and remand to the
trial court with directions to order Fisher to pay the total amount of the
arrearages and award interest pursuant to § 767.25(6).
Fisher and Niemi were
divorced on July 8, 1966. Niemi was
awarded custody of their two minor children, and Fisher was ordered to pay $165
per month for child support through the clerk of court. Fisher failed to make approximately ten
years of child support payments through the clerk of court, resulting in
arrearages of over $18,000.
In 1992, Niemi moved for
judgment on the arrearages. At the
hearing, Fisher claimed that he regularly made child support payments directly
to Niemi, with some exceptions. He
further claimed that he even paid $200 per month for a period of time to make
up arrearages. Niemi denied that he
made direct payments to her for child support except for the $330 that was
noted in the court's payment record for 1970.
Niemi claimed that all other direct payments she received from Fisher
were for health insurance and medical expenses, which Fisher was required to
pay under the divorce judgment. The
trial court dismissed her claim for child support arrears concluding that the
doctrines of laches, equitable estoppel and waiver precluded Niemi from
collecting the arrearages. Niemi
appealed. We reversed concluding that
the defenses of laches, equitable estoppel and waiver did not apply with regard
to her delay in filing for judgment, and remanded for the trial court to
determine whether Fisher made direct payments.[2] See Douglas County Child
Support Enforcement Unit v. Fisher, 185 Wis.2d 662, 517 N.W.2d 700 (Ct.
App. 1994).
On remand, and after a
hearing, the trial court found that Fisher had made direct payments to Niemi
and that Fisher should be credited for the direct payments and for the period
of time his son came to live with him.
Although the exact amount of the direct payments was difficult to
determine, the trial court found as a fact that the arrearage was $3,000. The trial court also denied Niemi's motion
for statutory interest on the arrearages pursuant to § 767.25(6), Stats.
Because each of the
issues Niemi raises requires the interpretation of a statute, we are presented
with questions of law that we review without deference to the trial court. Shorewood v. Steinberg, 174
Wis.2d 191, 201, 496 N.W.2d 57, 61 (1993).
Our purpose in interpreting a statute is to ascertain and give effect to
the legislature's intent. Id. If the language of the statute is clear and
unambiguous, we give the language its ordinary meaning and apply it to the
facts of the case. Id. We look beyond the statutory language only
if the statute is ambiguous. Id. A statute is ambiguous if reasonable people
could understand it in more than one way.
Id.
First, Niemi contends
that the trial court was without power to grant Fisher a credit toward
arrearages. Niemi argues that the
Wisconsin Legislature, in 1993 Wis. Act 481, removed the power of the courts to
grant credit against child support arrearages, effective June 11, 1994, a few
weeks after our previous remand in this case.[3]
Prior to 1993 Wis. Act
481, a trial court had discretion to grant equitable credit against arrearages for
direct expenditures made for support in a manner other than that prescribed in
the order or judgment, if the order or judgment was entered prior to August 1,
1987. See Schulz v. Ystad,
155 Wis.2d 574, 603-04, 456 N.W.2d 312, 323 (1990); Rummel v. Karlin,
167 Wis.2d 400, 402-03, 481 N.W.2d 695, 697 (Ct. App. 1992). While Schultz concluded that §
767.32(1m), Stats., effective
August 1, 1987, prohibited credits against arrearages, it also determined that
the statute applied prospectively only.
Rummel, 167 Wis.2d at 403, 481 N.W.2d at 697.
In 1993 Wis. Act 481, §
118, the legislature amended § 767.32(1m), Stats.,
to add the underlined language and provide as follows:
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.
Further,
the legislature created § 767.32(1r), Stats.,
which provides:
In an
action under sub. (1) to revise a judgment or order with respect to child
support or family support, the court may not grant credit to the payer against
support due prior to the date on which the action is commenced or payments made
by the payer on behalf of the child other than payments made to the clerk of
court under s. 767.265 or 767.29 or as otherwise ordered by the court.
1993
Wis. Act, § 119.
Sections 767.32(1m) and
(1r), Stats., unambiguously
provide that a trial court cannot grant credit for direct payments for support
made in a manner other than that prescribed in the order or judgment providing
for support. This is consistent with Schultz
and Rummel which conclude that § 767.32(1m) prohibits equitable
credits. However, in 1993 Wis. Act 481,
the legislature made it clear that the new law applied retroactively. Section 9326(2) of 1993 Wis. Act 481
provides as follows:
Revisions of Child Support Judgments or Orders. The treatment of section 767.32(1m) and (1r)
of the statutes first applies to arrearages existing, and child support,
maintenance payments and family support payments past due, on the effective
date of this subsection [June 11, 1994], regardless of when the judgment or
order under which the arrearages accrued, or the child support, maintenance
payments or family support payments are owed, was entered. (Emphasis added.)
The trial court's
judgment was entered on April 19, 1995.
Under the unambiguous language of the Act, as of June 11, 1994, a court
is without discretion to grant credits against arrearages regardless of when
the judgment or order was entered.
Accordingly, the trial court was without power to grant Fisher credit in
its judgment on April 19, 1995.
Fisher, however, argues
that Niemi's original motion was filed pursuant to § 767.30(3)(c), Stats., to determine the amount of
arrearages and was not an action under § 767.32(1), Stats., to revise a judgment or order. Sections 767.32(1m) and (1r), Stats., apply only to revisions under §
767.32(1).
It is irrelevant that Niemi's
original motion was filed pursuant to § 767.30(3)(c), Stats.
Fisher requested that he be given credit for direct payments he made for
child support. Section 767.30(3)(c)
does not authorize the court to grant credit against arrearages. The court's authority to grant credit is
derived from § 767.32(1), Stats. See Schultz. To grant a credit, the court must revise the
judgment under § 767.32(1) with respect to the method in which payments are
made. Moreover, the only statute
dealing specifically with credit is § 767.32(1r), which specifically states
that a court cannot grant credit.
Accordingly, we conclude that the trial court was acting pursuant to §
767.32(1) when it granted the credit and under § 767.32(1r), the court was
without power to do so.
Next, Niemi contends
that the trial court erred when it refused to award her interest under §
767.25(6), Stats. Section 767.25(6) states: "A party ordered to pay child support
under this section shall pay simple interest at the rate of 1.5% per
month on any amount unpaid, commencing the first day of the 2nd month after the
month in which the amount was due."
(Emphasis added.)
Under the unambiguous
language of § 767.25(6), Stats.,
a person ordered to pay child support is required to pay interest when child
support is overdue. The language makes
interest on unpaid child support mandatory.
Further, § 767.25(6) applies to arrearages accrued as of its
effective date on July 2, 1983, as well as support arrearages accruing after
that date. Greenwood v. Greenwood,
129 Wis.2d 388, 392, 385 N.W.2d 213, 215 (Ct. App. 1986).
The trial court
determined that it would be inequitable to award Niemi interest because she did
not timely exercise her rights.
However, under § 767.25(6), Stats.,
the trial court had no discretion in assessing interest on the child support
arrearage, even though it determined awarding interest would be
inequitable. Because § 767.25(6)
requires Fisher to pay interest on his child support arrearage, we conclude the
trial court erred when it denied Niemi's motion for interest.
We confess that the
results of this case are troublesome because the trial court determined as a
fact that Fisher made direct payments.
Because §§ 767.32(1m) and (1r), Stats.,
preclude recognition of these payments, Niemi is unfairly enriched by double
payments. This is a public policy
decision made by the legislature, apparently on the belief that the public
interest in addressing the problem of nonpayment of child support is best
served by limiting payments to those made in accordance with the divorce
judgment. This policy fixes arrearages
with certainty and facilitates the determination as to who owes arrearages and
what amount. Because creation of public
policy expressed by clear and unambiguous legislation is the exclusive
prerogative of the legislative branch of government, the courts are powerless
to do anything other than apply the policy as determined by the legislature.
Because we conclude that
the trial court was without power to grant Fisher a credit against his
arrearages and the trial court was required to award Niemi interest on the
arrearages, we reverse the judgment and remand to the trial court to
order
Fisher to pay the total amount of arrearages and award Niemi interest on the
arrearages pursuant to § 767.25(6), Stats.
By the Court.—Judgment
reversed and cause remanded.
No. 95-1960(D)
CANE, P.J. (dissenting). I respectfully dissent. Dianne Niemi relies on §§ 767.32(1m) and
767.32(1r), Stats., to prohibit
the circuit court from granting any credits for payments not made through the
clerk of court. Section 767.32(1m)
provides that the circuit court may not revise the amount of child support due
under an order or judgment for support prior to the date that the notice of a
petition to revise support is given to the custodial parent. This section eliminated a child support
obligor's right to petition for retroactive modification of support and thereby
redefine his or her obligation with respect to accumulated support
arrearages. Schulz v. Ystad,
155 Wis.2d 574, 598, 456 N.W.2d 312, 321 (1990). What is important to note is that § 767.32 is directed at an
obligor parent's efforts to revise the amount of child support
payments. Section 767.32(1r) also
refers to an action to revise the amount of child support and prohibits the
circuit court from giving credit against the support payment other than
payments made through the clerk of court.
However, Dianne Niemi's
motion was filed pursuant to § 767.30(3)(c), Stats., which provides:
If the party fails to pay a payment
ordered under sub. (1) ... the court may by any appropriate remedy enforce the
judgment, or the order as if it were a final judgment, including any past due
payment and interest. Appropriate
remedies include but are not limited to:
....
(c) Money judgment for past due payments.
Here, Niemi's original
motion alleges "that said Respondent failed to maintain regular child
support payments as ordered by the aforementioned divorce judgment, and
accordingly, he has accrued an arrears ...." In short, the purpose of these hearings in response to Niemi's
motion was not to revise the amount of a child support order, but rather to
obtain a money judgment for the child support payments not made, the arrears.
The factual issue before
the trial court was whether Robert Fisher made the required child support
payments. Fisher contended that his
payments were made directly to Niemi while she contended that the few payments
he made were for health insurance.
Rejecting Niemi's testimony, the trial court found that Fisher made a
substantial number of child support payments by check or money order directly
to Niemi. It also concluded that
Fisher's support payments were not required when their youngest son lived with
Fisher. The evidence more than amply
supports the trial court's findings.
Consequently, I would reject the application of § 767.32, Stats., to this proceeding which was
solely for the purpose of obtaining a money judgment for the unpaid child
support.
Additionally, I would
conclude that even if § 767.32, Stats.,
applies, Niemi is equitably estopped from asserting this statute, and the trial
court is permitted to consider the support payments made directly to
Niemi. Here, the trial court found that
for years Fisher made his support payments by check or money order directly to
Niemi and that she accepted these payments on a regular basis without
objection. This is understandable
because both parents were living in California when Fisher started paying Niemi
directly, making it less practical to pay through the clerk of circuit court in
Douglas County, Wisconsin. Niemi also
consented to their youngest son living with Fisher for about five months
shortly before the son reached age eighteen.
I recognize that in Schulz
the supreme court permitted the circuit court to allow credit against the
support payments to avoid a manifest injustice or unjust enrichment. However, the court was reviewing the general
rule existing prior to the adoption of § 767.32(1m), Stats. Because we are
now dealing with a statute, I also recognize that we must not refuse to apply a
statute because its strict application would create a hardship. It is our duty to expound the statute as it
stands, even if the consequence is a hardship.
However, as the supreme court recognized in Schulz,
we cannot close our eyes to reality. To
conclude that these repeated payments were not made with Niemi's express or
implied consent ignores reality.
Similarly, the reality of the circumstances suggests that Niemi
consented to their youngest son living with Fisher. The trial court's findings are clear and amply supported by the
evidence. Except for the sum of $3,000,
Fisher made his court-ordered child support payments directly to Niemi, who
repeatedly accepted these payments without objection.
Therefore, I would
conclude under these circumstances that Niemi is equitably estopped from
asserting §§ 767.32(1m) and (1r), Stats.,
which under the majority's analysis prevents the trial court from considering
the payments made outside the clerk of court's office.[4] To require Fisher to pay again for the child
support payments results in a manifest injustice to Fisher and an unjust
enrichment for Niemi. A custodial
parent should not be permitted to directly accept the child support payments
and then later recover a money judgment for those same payments simply because
they were not made through the clerk of court.
Finally, I would also
construe § 767.32(1r), Stats., to
only prevent the trial court from giving credit against the required support
payments when it involves gifts or other voluntary expenditures made on behalf
of the child, not support payments made directly to the custodial parent. The purpose of this statute is to prevent
unilateral modifications of court orders, which tend to interfere with the right
and responsibility of the custodial parent to decide how the support money
should be spent. When the support money
is given directly to the custodial parent, this consideration is no longer
applicable.
I do agree with the
majority however that Fisher must pay interest on the unpaid child support
payments. That interest should be on
the $3,000 of unpaid payments.
[1] Because we conclude that the trial court lacked power to grant Fisher a credit against his arrearages, we do not reach the issue whether the trial court erroneously exercised its discretion.
[2] Because the parties did not raise the issue in the previous appeal or this appeal, we did not and do not address whether equitable estoppel could apply to the method in which Fisher made payments.
[3] We issued our previous decision in this case on May 24, 1994. See Douglas County Child Support Enforcement Unit v. Fisher, 185 Wis.2d 662, 517 N.W.2d 700 (Ct. App. 1994). 1993 Wis. Act 481 was published on June 10, 1994, and the relevant portions became effective June 11, 1994.
[4] Fisher did not raise this particular equitable estoppel argument because the purpose and focus at the hearing was to determine what support payments Fisher made and, accordingly, any arrearage. Although Fisher never presented this particular argument, I would conclude under the circumstances it is appropriate for this court to address this issue.