In RE MARRIAGE OF HONORE v. Honore

439 N.W.2d 827, 149 Wis. 2d 512, 1989 Wisc. App. LEXIS 246
CourtCourt of Appeals of Wisconsin
DecidedMarch 1, 1989
Docket88-1160
StatusPublished
Cited by11 cases

This text of 439 N.W.2d 827 (In RE MARRIAGE OF HONORE v. Honore) 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
In RE MARRIAGE OF HONORE v. Honore, 439 N.W.2d 827, 149 Wis. 2d 512, 1989 Wisc. App. LEXIS 246 (Wis. Ct. App. 1989).

Opinion

SCOTT, C.J.

This appeal raises the issue of whether a party to a divorce may stipulate to maintaining a certain level of child support notwithstanding a subsequent reduction in the party’s income. We conclude that such a stipulation is not contrary to public policy. Accordingly, we reverse the order of the trial court which held otherwise.

Debra and Daniel Honoré were granted a divorce on June 20, 1986. Debra received custody of the two minor children. The relevant portion of the stipulation reads as follows:

*514 [Daniel] agrees to maintain this level of support [$700 monthly], notwithstanding a reduction in his income or other financial factors at least until the youngest child ... is in first grade, or until September 1, 1989.

The trial court approved the stipulation and incorporated it into the judgment.

On September 8, 1987, Daniel requested the trial court to reduce his child support obligation because of a reduction in his income. Debra filed a motion requesting that Daniel be found in contempt for failure to pay support. The trial court granted Daniel’s motion to reduce support, specifically finding that the quoted stipulation was contrary to public policy. Daniel was also found in contempt for past-due support. Debra appealed from the court’s order granting a reduction in support. We certified the issue to the supreme court, and certification was refused.

Debra asks us to conclude that Daniel was es-topped from seeking a reduction in his child support payments by virtue of his earlier stipulation. As a result, Debra continues, the trial court erred when it allowed the reduction.

On appeal from a modification of child support, the question is whether there has been an abuse of discretion. Krause v. Krause, 58 Wis. 2d 499, 508, 206 N.W.2d 589, 594 (1973). In making a discretionary decision, the trial court must examine the relevant facts, apply the proper standard of law, and use a demonstrated rational process to reach a reasonable conclusion. See Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 275, 184 (1982). If the trial court bases its decision upon a mistaken view of the law, it is beyond the limits of the *515 court’s discretion. Schmid v. Olsen, 111 Wis. 2d 228, 237, 330 N.W.2d 547, 552 (1983).

The primary cases relied upon by Debra are Rintelman v. Rintelman, 118 Wis. 2d 587, 348 N.W.2d 498 (1984), and Bliwas v. Bliwas, 47 Wis. 2d 635, 178 N.W.2d 35 (1970). In Bliwas, the parties stipulated that the father would contribute to his son’s education beyond his twenty-first birthday. Id. at 637, 178 N.W.2d at 36. Statutorily, the trial court could not have compelled such support. Id. at 638, 178 N.W.2d at 36. However, where the parties agreed to and the court approved such a provision, the parties would be es-topped from questioning the provision’s validity. Id. at 639-40, 178 N.W.2d at 37.

In Rintelman, the parties stipulated that the wife was to receive a certain level of maintenance. The husband testified that he understood the provision to mean that those payments would continue even if the wife remarried. Rintelman, 118 Wis. 2d at 590, 348 N.W.2d at 500. Although sec. 767.32(3), Stats., would have required the trial court to order termination of payments upon application by the husband, the supreme court concluded that by stipulating as he did, the husband was estopped from requesting termination of maintenance. Rintelman, 118 Wis. 2d at 597, 348 N.W.2d at 503.

We agree with Debra that the present case is governed by Bliwas and Rintelman. Daniel attempts to distinguish this case, but we do not find his arguments persuasive.

First, Daniel points out that both Bliwas and Rintelman involved a stipulation to something beyond the court’s jurisdiction, whereas the present stipulation involves child support, a matter particularly within the court’s jurisdiction. This argument overgeneralizes the *516 language of the stipulation. The stipulation here agreed to a level of support which could not be reduced in the future. It essentially established a “floor” below which child support could not drop. Technically speaking, a trial court would have jurisdiction to enter such an order, but it would almost certainly be an abuse of discretion to do so.

Daniel follows up by suggesting that the stipulation then restricts the court’s jurisdiction, something which the other cases did not allow. This is incorrect. Particularly in Rintelman, the stipulation had the effect of preventing the court from terminating maintenance upon application of the husband, an action which would have otherwise been required by statute. Rintel-man, 118 Wis. 2d at 592, 348 N.W.2d at 500-01. Here, the stipulation has the effect of preventing the court from reducing child support upon motion of a party and a showing of cause. See sec. 767.32, Stats. In the absence of a stipulation, the court may have made such an order, id., but would not have been required to do so, Tozer v. Tozer, 121 Wis. 2d 187, 189, 358 N.W.2d 537, 539 (Ct. App. 1984).

Daniel also raises the spectre of a reverse situation wherein child support would be waived by stipulation and a subsequent change in circumstances would warrant modifying that provision. This is a hypothetical set of facts which is not before us and which we will not decide. See Pension Management, Inc. v. DuRose, 58 Wis. 2d 122, 128, 205 N.W.2d 553, 555-56 (1973).

Daniel relies on language from Bliwas to support his argument that modification based on a material change in circumstances was appropriate. After the supreme court stated that the father was estopped from challenging the trial court’s order which adopted the stipulation, the court continued:

*517 However, this is not to say that the trial court’s approval and incorporation of such agreement into the order irrevocably freezes the rights and duties of the parties. If a material change of circumstances can be demonstrated to the trial court, then the general rule as to changes in a divorce court order applies.

Bliwas, 47 Wis. 2d at 641, 178 N.W.2d at 38. The stipulation in Bliwas

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439 N.W.2d 827, 149 Wis. 2d 512, 1989 Wisc. App. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-honore-v-honore-wisctapp-1989.