Marriage of Strawser v. Strawser

377 N.W.2d 196, 126 Wis. 2d 485, 1985 Wisc. App. LEXIS 3762
CourtCourt of Appeals of Wisconsin
DecidedOctober 11, 1985
DocketNo. 85-0737
StatusPublished
Cited by18 cases

This text of 377 N.W.2d 196 (Marriage of Strawser v. Strawser) 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
Marriage of Strawser v. Strawser, 377 N.W.2d 196, 126 Wis. 2d 485, 1985 Wisc. App. LEXIS 3762 (Wis. Ct. App. 1985).

Opinion

WEDEMEYER, J.

James L. Strawser (James) appeals from an order denying his motion to partially recoup child support payments and directing him to pay temporary maintenance to Mary Strawser (Mary) nunc pro tunc as of November 1, 1981. James argues that the trial court (1) did not have jurisdiction to enter a nunc pro tunc order, (2) misused its discretion in approving a retroactive maintenance assessment whose sole pur[487]*487pose was to offset James’ recoupment claim, and (3) erred as a matter of law in holding that the statutory presumption of paternity precluded recoupment of child support payments.

Because a nunc pro tunc order is only valid for the purpose of correcting the judicial record, not altering it, the trial court erred as a matter of law in retroactively creating a maintenance obligation. We therefore reverse that part of the trial court’s order. Because James successfully rebutted the presumption of paternity, the trial court erred in rejecting his motion for recoupment of support payments without stating any equitable grounds for its action. Thus, we also reverse that part of the order and remand for further proceedings.

In July, 1981, James petitioned for divorce from Mary after twenty-four years of marriage. In his petition, James named three minor children born during the marriage: John, then age fourteen, and twins James and Mark, then age six. James’ petition for relief, inter alia, requested “a determination of paternity.” After a hearing in October, 1981, the family court commissioner ordered James to pay temporary child support of $303 per month for the three minor children, but did not order temporary maintenance for Mary. A wage assignment was used to effectuate the child support order. Subsequently, a guardian ad litem was appointed and blood tests ordered. Throughout the pendency of this action, Mary and the children received Aid to Families with Dependent Children (AFDC). As a result, James’ support payments were transferred from Milwaukee County to the state pursuant to secs. 49.19(4) (h)lb and 767.29(2), Stats. Thus, it is the state and Milwaukee County who oppose James’ recoupment claim in this action.1

[488]*488At a bench trial in September, 1984, James was adjudicated not to be the father of the twins and an oral judgment of divorce was rendered. Child support for the twins was terminated, and Mary was awarded temporary maintenance of $75 per week commencing in December, 1984.

When James moved the court to order the state to refund two-thirds of his child support payments from 1981 to 1984, the trial court denied the motion and issued a sua sponte order backdating Mary’s maintenance nunc pro tunc to November, 1981. In its abbreviated findings of fact, the trial court acknowledged that the family court commissioner did not order James to pay maintenance in October, 1981. The court found, however, that “equitably petitioner should have been ordered to pay maintenance during the pendency of this action, in addition to child support.” [Emphasis added.] This finding was the sole basis for the trial court’s nunc pro tunc order.

Pursuant to sec. 767.23(1), Stats., a family court commissioner may issue a temporary maintenance order during the pendency of the divorce action after considering the factors outlined in sec. 767.26, Stats. See sec. 767.23 (In). Any decision made by the commissioner must be reviewed by the court if any party to the action so moves. Sec. 767.13(lm), Stats.

In the instant case, the record shows that the family court commissioner issued a temporary order for child support in October, 1981, but made no mention of maintenance. Neither party to this appeal mentions any request for maintenance by Mary or any motion for a review of the court commissioner’s order. Thus, the [489]*489validity of the court commissioner’s October, 1981 order is not before us. Instead, we are confronted with the question whether the trial court had the authority to alter this order more than three years after it was made.

A trial court in Wisconsin has no authority to make an order directing the retroactive increase of support payments. Foregger v. Foregger, 40 Wis. 2d 632, 645, 162 N.W.2d 553, 559 (1968), reh’g denied, 40 Wis. 2d 648b, 164 N.W.2d 226 (1969). We do not deem it unreasonable to conclude that this denial of authority extends to the creation of a support obligation, as the following analysis of nunc pro tunc orders clearly demonstrates.

Translated from Latin, nunc pro tunc means “now for then.” In other words, “a thing is done now, which shall have [the] same legal force and effect as if done at [the] time when it ought to have been done.” Black’s Law Dictionary 964 (5th ed. 1979) (citing State v. Hatley, 384 P.2d 252, 254 (N.M. 1963)). Our supreme court, however, has clearly limited the authority of Wisconsin courts to retroactively decide what “ought to have been done” in the past. In Zahorka v. Geith, 129 Wis. 498, 507, 109 N.W. 552, 556 (1906), the court stated:

The rule is that in any case where the court did actually render a formal judgment, but the same has not been entered on the record in consequence of any accident or mistake, or through the neglect or misprision of the clerk, the court has power to order that the judgment once pronounced be entered nunc pro tunc, upon the production of proper evidence to establish the fact of the judgment and to show its terms and character and the relief granted; and this may be done after the expiration of the term at which the judgment was originally given. [Emphasis added; citation omitted.]

Utilizing this rule, the Zahorka court affirmed a 1904 Circuit court judgment of divorce nunc pro tunc to 1890. Id.

[490]*490A court’s nunc pro tunc authority is thus limited to rectifying what might be termed “mechanical errors” in our judicial system. This fact was underscored by the supreme court in Estate of Gibson, 7 Wis. 2d 506, 515, 96 N.W.2d 859, 864 (1959) :

The circuit court has power even after the term to correct its judgment or to add omitted portions thereto to conform the judgment to that actually pronounced. A court cannot modify or amend its judgment to make it conform to what the court ought to have or intended to adjudge. [Emphasis added.]

As explained by the Montana Supreme Court: “The test is whether . . . the change will make the record speak the truth as to what was actually determined or done, or intended to be determined or done by the court, or whether ... it will alter such action or intended action.” State ex rel. Kruletz v. District Court, 98 P.2d 883, 885 (Mont. 1940). See Aabye v. Aabye, 292 N.W.2d 92, 95 (N.D. 1980).

Here, the trial court clearly based its decision on a finding that “equitably petitioner should have been ordered to pay maintenance” in 1981. The purpose and effect of this

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Bluebook (online)
377 N.W.2d 196, 126 Wis. 2d 485, 1985 Wisc. App. LEXIS 3762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-strawser-v-strawser-wisctapp-1985.