State of Wis. Ex Rel. Southwell v. Chamberland

349 N.W.2d 309
CourtCourt of Appeals of Minnesota
DecidedAugust 3, 1984
DocketC8-84-0143
StatusPublished
Cited by8 cases

This text of 349 N.W.2d 309 (State of Wis. Ex Rel. Southwell v. Chamberland) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Wis. Ex Rel. Southwell v. Chamberland, 349 N.W.2d 309 (Mich. Ct. App. 1984).

Opinion

OPINION

FOLEY, Judge.

Dunn County, Wisconsin, petitioned and moved Anoka County District Court to collect overdue child support payments from Michael W. Chamberland pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA). Judgment was entered in behalf of Dunn County, Wisconsin and against appellant-Chamberland in the amount of $5,560, the stipulated amount of child support arrearages.

Chamberland appeals arguing respondent-Southwell’s violation of the marriage dissolution decree in keeping the location of herself and the parties’ minor child from appellant relieves him of his obligation to pay child support arrears.

Affirmed in part and remanded in part with directions.

FACTS

A child was born to Michael Chamber-land and Lorraine [Chamberland] Southwell on October 6, 1971. Southwell was given custody of the child following the couple’s divorce on September 20, 1976. Chamber-land was ordered to pay $140 per month in child support.

Southwell and the child moved out of Minnesota in the late summer of 1978, without a court order as required by the dissolution decree, and concealed their location from Chamberland until August 1983. During this time Chamberland made no support payments.

From April 16, 1981 to August 31, 1982 Southwell received AFDC for the support *311 of herself and the child from Dunn County, Wisconsin. As a condition of receiving public assistance for the child, Southwell assigned her right to child support arrear-ages to Wisconsin. See Wisc.Stat. § 49.-19(4)(h)(l)(b) (1982). (Similar to Minn.Stat. § 256.74, subd. 5 (Supp.1983)).

ISSUE

1. Whether the custodial parent’s removal of a child from the state in violation of a dissolution decree, and her concealment of the child’s location, relieves the noncustodial parent from the payment of child support arrearages?

2. Whether a sister state may collect child support arrearages in excess of the amount expended for child support?

ANALYSIS

Wisconsin proceeded against Chamber-land under the Uniform Reciprocal Enforcement of Support Act (URESA) which states: “All duties of support, including the duty to pay arrearages, are enforceable by a proceeding under sections 518C.01 to 518C.36.” Minn.Stat. § 518C.03 (1982).

1. Denial of visitation — no defense.

Chamberland argues that Southwell’s violation of the dissolution decree and concealment of their child’s location, which made it impossible for Chamberland to make support payments, relieves him of the responsibility of paying arrearages for this period of time. URESA does not allow such a defense:

The determination or enforcement of a duty of support owed to one obligee is unaffected by interference by another obligee with rights of custody or visitation granted by a court.

Minn.Stat. § 518C.16 (1982) (emphasis added).

We note the consistency of the above statute with Minn.Stat. § 518.612 (1982), entitled “Independence of Provisions of Decree or Temporary Order”:

Nor is interference with visitation rights or taking a child from this state without permission of the court or the noncustodial parent a defense to nonpayment of support.

Id.

These statutes demonstrate a legislative intent that interference with visitation rights is no defense in child support enforcement proceedings. See England v. England, 337 N.W.2d 681 (Minn.1983), (“The purposé of URESA is to improve and extend enforcement of interstate duties of support. Our legislature has expressed the intent that custody and visitation should not bear on enforcement of support obligations.” Id. at 684 (cites omitted).)

The legislature provided Cham-berland with only one remedy to deal with Southwell’s violation of his visitation rights — petitioning the court for “an appropriate order.” See Minn.Stat. § 518.612. Forgiveness of a support obligation is not a remedy. See id.

In Kramer v. Kelly, 265 Pa.Super. 58, 401 A.2d 799 (1979), the noncustodial parent attempted to use the same defense as Chamberland asserts here. In Kramer, the noncustodial parent made timely child support payments for two years before the custodial parent removed the child to a concealed location. The child was located approximately six months later through the use of a private detective. At trial the father argued that the mother prevented him from exercising his visitation rights. Therefore, the court should prevent enforcement of a contempt order against him for violating his support order. The Pennsylvania Superior Court stated: ■

It is an accepted principle that the misconduct of the mother does not affect a father’s duty to support his child. Indeed, this duty is well nigh absolute, and a support order must ordinarily be complied with even if the actions of the wife place her in contempt of court.

Id. 401 A.2d at 803. Recognizing, as our state does, see England at 684, that “matters of support are separate and independent from problems of visitation,” the court concluded that absent extreme circum *312 stances, we are loath to deprive the child of support payments because of the improvident actions of the mother.” Id. at 804. See Schmidt v. Schmidt, — Pa.Super. —, 459 A.2d 421, 423 (1983).

2. URESA Reimbursement.

In reviewing the judgment against Chamberland for $5,560, we question the trial court finding number 9, which provides: “From April 16, 1981 to August 31, 1982 Dunn County Wisconsin has expended $8,364.16 in AFDC for the support of Lorraine Southwell and the minor child.” (Emphasis added).

A review of affidavits of a Dunn County investigator show that Dunn County, Wisconsin, provided public assistance in the amount of $103 per month from April 16, 1981 to October 1, 1981, and $226 per month from October 1, 1981 until August 31,1982 for the child. Using these figures we note that Wisconsin expended $3,052.50 in public assistance for the support of the child. In addition to the amount paid for the child, the State of Wisconsin also apparently paid additional amounts for support of Southwell ($8,364.16 — $3,052.50).

Chamberland only has a “duty of support” to the child, not to Southwell. See Minn.Stat. § 518C.02(3) (1982). 1 Only a duty of support, is enforceable under URE-SA. Minn.Stat. § 518C.03 (1982). Once a duty of support is found by the responding court, URESA allows the court to “order the obligor to furnish support or reimbursement therefor.” Minn.Stat.

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Bluebook (online)
349 N.W.2d 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-wis-ex-rel-southwell-v-chamberland-minnctapp-1984.