Douglas County Child Support Enforcement Unit Ex Rel. Niemi v. Fisher

547 N.W.2d 801, 200 Wis. 2d 807, 1996 Wisc. App. LEXIS 324
CourtCourt of Appeals of Wisconsin
DecidedMarch 12, 1996
Docket95-1960
StatusPublished
Cited by5 cases

This text of 547 N.W.2d 801 (Douglas County Child Support Enforcement Unit Ex Rel. Niemi v. Fisher) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Douglas County Child Support Enforcement Unit Ex Rel. Niemi v. Fisher, 547 N.W.2d 801, 200 Wis. 2d 807, 1996 Wisc. App. LEXIS 324 (Wis. Ct. App. 1996).

Opinions

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 [810]*810§ 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 arrear-ages. 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 arrear-ages. 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 estop-pel and waiver did not apply with regard to her delay in [811]*811filing 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 arrear-ages. Niemi argues that the Wisconsin Legislature, in [812]*8121993 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(lm), 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.

[813]*813Further, the legislature created § 767.32(lr), 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 481, §119.

Section 767.32(lm) and (lr), 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(lm) 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(lm) and (lr) 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 [814]*814of June 11,1994, a court is without discretion to grant credits against arrearages regardless of when the judgment or order was entered.

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Douglas County Child Support Enforcement Unit Ex Rel. Niemi v. Fisher
547 N.W.2d 801 (Court of Appeals of Wisconsin, 1996)

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547 N.W.2d 801, 200 Wis. 2d 807, 1996 Wisc. App. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-county-child-support-enforcement-unit-ex-rel-niemi-v-fisher-wisctapp-1996.