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COURT OF APPEALS DECISION DATED AND RELEASED APRIL 24, 1996 |
NOTICE |
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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. 95-2354
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In re the Marriage of:
SHARON MOWERY,
Petitioner-Respondent,
v.
JAMES E. MOWERY,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Racine County:
ALLAN B. TORHORST, Judge. Affirmed.
ANDERSON, P.J. James
E. Mowery appeals from an order of the trial court finding him in contempt of
court for failure to pay child support and modifying child support from a fixed
amount to a percentage or a fixed amount, whichever was greater. We conclude that the trial court did not
erroneously exercise its discretion in holding James in contempt or for
requiring him to pay unpaid child support.
Accordingly, we affirm the trial court.
We take the facts of
this case from the trial court's decision as follows. James and Sharon Mowery were divorced in July 1982. At that time, they had three minor children
together: Cory, Tony and Jaime. The judgment of divorce provided that James
was to pay child support of $50 per week for each of the minor children who
were placed with Sharon. The judgment
also provided that Sharon was to claim Tony as a tax exemption and James was to
claim Cory and Jaime as exemptions as long as he was ninety percent current in
his child support obligation. In 1982,
at the time of the divorce, Sharon was earning approximately $15,600 net per
year, and James was self-employed, earning approximately $30,000 gross per
year.
In May 1983, James was
found in contempt of court for failing to pay child support. The court ordered James to continue to pay
child support of $150 per week, plus $10 per week on the arrearage.
James subsequently moved
to Pennsylvania. In January 1985, an
order from the Court of Common Pleas of Pennsylvania set support for two of the
children, Cory and Jaime, in the amount of $100 per week. The order was filed in Racine County. In December of that same year, an order was
issued from the Pennsylvania court changing support to $100 per month, plus $15
per month for arrearages. This order
was not filed in Racine County.
According to the trial
court, the Mowerys' court file also contained an “agreed order” dated December
1986 by Todd County District Court in Kentucky, where James resided at that
time. The order required James to pay
$200 per month as child support for Cory and Jaime and established child
support arrearages at $22,075. According
to the trial court, there is no record that this order was filed in Racine
County, although a copy of it in the file was stamped by the district
attorney's office. The Kentucky court
issued an order dated October 1991 suspending all child support payments based
upon Jaime residing with James. Racine
County received a copy of this order.
In August 1992, an order reinstated child support for Jaime because
James no longer had custody of Jaime.
An order of dismissal was also issued in January 1994 dismissing the
matter in Todd County. These two orders
are not on file in Racine County.
The judgment of divorce
in Wisconsin has never been modified.
Since the divorce, James and Sharon have placed the children between
them or, in the case of Jaime, with a third party. In the present action, Sharon asked the court to find James in
contempt for failing to pay child support and sought to modify child support
from a flat rate of $50 per week per child to seventeen percent of James's
gross income. At the time of the trial
court's order, there was only one minor child in Sharon's placement.
The trial court held
that neither the Pennsylvania nor the Kentucky order modified the Wisconsin
judgment. It stated:
The respondent was clearly entitled to
pay child support as established by either Pennsylvania or Kentucky; however,
such payment did not meet his duty under the Wisconsin judgment and arrearages
could accrue under the Wisconsin judgment if the child support ordered by the
other state was less than the level set in Wisconsin.
¼.
¼ [T]he respondent is found in contempt of
this Court for failing to pay child support as previously ordered by the
Wisconsin judgment; he had the ability to make such payments and he willfully
refused to make child support payments, for such acts he shall be incarcerated
in the Racine County Jail for a period of six months.
James
appeals.
The decision whether to
modify child support payments is within the sound discretion of the trial
court. Burger v. Burger,
144 Wis.2d 514, 523, 424 N.W.2d 691, 695 (1988). Proper exercise of this broad discretion exists where the record
reflects that the court considered the needs of the custodial parent and
children and the ability of the noncustodial parent to pay. See id. at 524, 424
N.W.2d at 695.
James argues that the
trial court erred in ordering him to pay child support arrearages.[1] He contends that Sharon should be equitably
estopped from collecting any arrearages because she induced him not to pay
child support: “Sharon Mowery sent not
only one, but two letters waiving her right to child support arrearages.” In a letter dated April 25, 1985, Sharon
wrote:
I, Sharon K. Mowery release the back
support in which James E. Mowery is behind from the time of my divorce until
January of 1985. I do expect to receive
my $100.00 per week regularly as soon as possible. However, I will not let his financial problem affect my support
payments for the remaining years that my children are minors. Whatever is behind in the future I do expect
to receive in full. As of right now I
do expect some money every week and in the future I will not except [sic] any
excuses.
In return I want the right to claim both
daughters, Cory and Jaime on my taxes until they are 18 years of age. I also would like to see some kind of proof
of an insurance policy on Jim (Life Insurance) with my children as beneficiary.
In a
second letter dated September 26, 1991, Sharon wrote:
I, Sharon Mowery give custody of Jaime K. Mowery to James E. Mowery as
of 9-26-91.
I also drop all arrearages obtained by James E. Mowery.
Also the order of 200.00 per month for support is canceled per court
date.
I also can claim Jaime K. Mowery on my taxes
until she is 18 years of age.
James
claims that he relied on these letters to his detriment.
Regarding the April 1985
letter, we conclude that James was not induced to stop paying child
support. In Ondrasek v. Tenneson,
158 Wis.2d 690, 694, 462 N.W.2d 915, 917 (Ct. App. 1990), the court stated:
To invoke estoppel, a party must show
that both parties entered into the stipulation freely and knowingly, that the
overall settlement is fair and equitable and not illegal or against public
policy, and that one party subsequently seeks to be released from its terms on
the grounds that the court could not have entered the order it did without the
parties' agreement.
James
did not follow the terms of the letter; therefore, he cannot claim that he
relied on it to his detriment. There is
no evidence that he bought life insurance, naming the children as his
beneficiaries, or that James continued to pay the future child support that
Sharon asked.
We further conclude that
any agreement to waive the significant amount of arrearages or future support
in this case is void as against public policy.
The paramount goal of the child support statute is to promote the best
interests of the children of divorced parents.
Id. at 695, 462 N.W.2d at 917. “[B]ecause of the public interest in the welfare of children, the
child's best interests transcend an agreement or stipulation of the
parties.” Id. There was no justification for James and
Sharon to cancel significant amounts of arrearages.[2] To do so was totally against the best
interests of the children and is against the public policy of the child support
statute.
James
also claims that the trial court erred in ordering him to pay child support
arrearages at a rate that was beyond his ability to pay. We reject James's argument and conclude, as
the supreme court did in Burger, that considering James's gross
income, his inability to pay was not demonstrated on the record. Although James's income may have fluctuated
over the years, he has been consistently behind on child support since shortly
after the divorce. At the hearing, it
was revealed that in 1992 James's gross profit on his income tax return was
$76,000. In 1991 and 1990, he claimed
gross profits in excess of $90,000.
James also argues that
the trial court erred in finding him in contempt of court. He asserts that he did not have the ability
to pay. “[A] person can be held in
contempt of court for failure to pay money where the refusal is willful and
contemptuous and not a result of his [or her] inability to pay.” Burger, 144 Wis.2d at 528, 424
N.W.2d at 697 (quoted source omitted).
We review the trial court's use of its contempt power for an erroneous
exercise of discretion. See State
ex rel. N.A. v. G.S., 156 Wis.2d 338, 341, 456 N.W.2d 867, 868 (Ct.
App. 1990). In a contempt proceeding,
the burden of proof is on the person against whom the contempt is charged to
show that his or her conduct is not contemptuous. Kaminsky v. Milwaukee Acceptance Corp., 39 Wis.2d
741, 747, 159 N.W.2d 643, 647 (1968).
James's unwillingness to meet his legal as well as moral obligation to
care for his children is evidence of willful disobedience justifying
contempt. “If the circuit court
concludes from past performance that a paying parent cannot be relied upon to
keep up on support obligations until some legal force is exerted, use of
contempt is perfectly justified.” Burger, 144 Wis.2d at 528, 424 N.W.2d at 697 (quoted
source omitted). The record reflects
that James had the ability to make child support payments and he refused. We therefore conclude that the trial court
did not erroneously exercise its discretion.
Last, James claims that
the trial court erred in not considering the letter signed by Sharon on
September 26, 1991, and whether it was signed under duress. We need not reach this issue because we
conclude that Sharon's two letters to James were violative of public policy.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.