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					                              TRENDS AND CHANGES:
                            FAMILY LAW CASE UPDATE
                                                                                          Decisions Filed between
                                                                                   June, 1996 through April, 1997


CARLTON D. STANSBURY                                                                    MARGARET W. HICKEY
Maier & McIlnay, Ltd.                                                                   Becker & Hickey, S.C.
Milwaukee, WI 53202                                                                     Milwaukee, WI 53202


                                                     **********

                                                            INDEX

I.         CUSTODY AND PLACEMENT ...................................................................... 6

            A.         Modification of Custody Based Solely on
      ................................................................ Primary Custodian's Move Denied -- Nelson                        6

            B.         Order to Mediate Did Not Deprive Father of a
      ...................................................................................... Hearing on Placement-- Doerr               7


II.        CHILD SUPPORT ............................................................................................ 7

           A.          Change in HSS 80 Child Support Law Is Not
                       Substantial Change in Circumstances Permitting
      ............................................................................................... Modification -- Beaupre           7

           B.          Trial Court Can Deduce Child Support Payer's
                       Ability to Pay From All of the Facts Before
      ................................................................................................................. It -- Lellman   8

            C.         Child Support Orders May Be Concurrent --
      .......................................................................................................................Hubanks    9




                                                                1.
             D.         Child Support Order That Did Not Follow New
       .............................................................................................. HSS 80 Upheld -- Doerr          10

             E.         Deviation from HSS 80 in High Income Case
       .......................................................................................................... Upheld -- Nelson    11

             F.         Thirty-three Month Passage Overcomes Need to
                        Show Change of Circumstances But Does Not
                        Remove Judicial Discretion to Modify Child
       ............................................................................................................ Support -- Zutz   12

       G.              Military Retirement Pay Must be Considered as Property and May be
                       Considered as Income to the Recipient for Purposes of Calculating Child
                       Support. Cook........................................................................................ 13

             H.        Lack of Knowledge of a Child for Fifteen Years Is Not a Basis to Deviate
                       From the Percentages. In re Paternity of Brad Michael L. ...........13

             I.        Trial Court Erred by Imposing a Trust on Child Support Arrears When it
                       Made No Finding That the Payee Was Unable or Unwilling to Wisely
                       Manage the Child Support Money Owed. Cameron ........................14


III.         SPOUSAL MAINTENANCE .......................................................................... 16

       A..             60/40 Split of Joint Income in 27 Year Marriage Reasonable Under the
                       Circumstances. Spindler ......................................................................... 16

       B.              Total Number of Years Parties Were Married, Even Though Interrupted
                       With a Divorce, is a Proper Factor in the Trial Court=s Discretion in Setting
                       Maintenance. Wolski ............................................................................ 16


IV.          PROPERTY DIVISION .................................................................................. 17

       A.              Military Retirement Pay Must be Considered as Property and May be
                       Considered as Income to the Recipient for Purposes of Calculating Child
                       Support. Cook........................................................................................ 17

       B.              Minimal Improvement and Routine Maintenance Will Not Convert Gifted
                       Real Estate to Marital Property Subject to Division. Spindler................. 18


V.           MARITAL PROPERTY ................................................................................ 19

       A.              Where a Party Impermissibly Changes Life Insurance Beneficiaries During
                       Divorce Action and Subsequently Dies, Any Claim By the Surviving
                       Spouse is Controlled by the Marital Property Act. Socha ....................... 19



                                                                2.
VI.        ATTORNEYS .................................................................................................. 19

            A.         Payer Who Would Not Disclose Income Had to Pay
      ..............................................................................Ex-wife's Attorney Fees -- Lellman               19

           B.          Request to Modify Child Support Based on Change
                       in HSS 80 Not Frivolous Action Warranting
      ............................................................................................ Attorneys Fees -- Beaupre         20

           C.          Ex-spouse Who is Unable to Pay Her Own Attorney
                       Fees Due to Her Career Choices and Overtrial Will
                       Not Receive Contribution to Fees from Ex-husband
                       Even Though She Has a Need and He Has the Ability
      ........................................................................................................... to Pay -- Nelson   20


VII.       PATERNITY .................................................................................................. 21

           A.         Trial court Erred When It Held a Pre-blood Test Hearing on the Best
                      Interests of the Minor Child. In re the Paternity of Baby Doe, ................. 21

           B.         A Child and a Mother Do Not Have an Absolute Identity of Interest
                      Allowing the Application of Res Judicata, and a Fundamental Fairness Test
                      Can Override the Application of Collateral Estoppel. In re the Paternity of
                      Amber J.F., ............................................................................................ 22

           C.         Jury=s Verdict Finding Of No Paternity Can be Reversed. Lily R.A.P. 22


VIII. PROCEDURE .................................................................................................... 24

           A.         The Family Court has the Authority to Join Third Parties for Certain
                      Equitable Claims Where Joinder is Necessary to a Just and Complete
                      Adjudication of the Cause of Action. Zabel............................................ 24




                                                               3.
                                  TABLE OF CASES

Beaupre v. Airriess, Case No. 96-0336 (Wis. Ct. App., filed January 7, 1997)

Cook v. Cook, Case No. 95-1963 (Wis. Sup. Ct., filed March 19, 1997)

Doerr v. Doerr, Case No. 95-3513, filed December 5, 1996

Hubanks v. Hubanks, 204 Wis. 2d 386, 555 N.W.2d 467 (Ct. App. 1996)

In re the Paternity of Amber J.F., 205 Wis. 2d 505, ___ N.W.2d ___ (Ct. App. 1996)

In re the Paternity of Baby Doe, 207 Wis. 2d 390, ___ N.W.2d ___ (Ct. App. 1996)

In re the Paternity of Brad Michael L., No. 94-3050 (Wis. Ct. App., filed April 29, 1997)

In re the Paternity of Lily R.A.P., Case No. 95-2917 (Wis. Ct. App., filed April 10, 1997)

Lellman v. Mott, 204 Wis. 2d 166, 554 N.W.2d 525 (Ct. App. 1996)

Nelson v. Candee, 205 Wis.2d 625, 556 N.W.2d 784 (Ct. App. 1996)

Socha v. Socha, 204 Wis. 2d 474, 555 N.W.2d 152 (Ct. App. 1996)

Spindler v. Spindler, 207 Wis. 2d 329, 558 N.W.2d 645 (1996)

Wolski v. Wolski, Case No. 96-0136, (Wis. Ct. App., filed April 15, 1997)

Zabel v. Zabel, Case No. 96-3092 (Wis. Ct. App., filed April 22, 1997)

Zutz v. Zutz, Case No. 96-1136, (Wis. Ct. App., filed January 29, 1997)


All Court of Appeals cases cited herein have been recommended for publication.




                                            4.
I.   CUSTODY . . . PLACEMENT . . . CUSTODY. . . PLACEMENT

     A.   Modification of Custody Based Solely on Primary Custodian's Move
          Denied -- Nelson

          This case primarily concerned child support as indicated below at II.E. The
          father cross appealed, however, on the issue of the trial court upholding
          primary placement with the mother. The parties divorce in 1990 after a 4.5
          year marriage and two children. In 1992 the mother, Susan, moved to
          Colorado. The mediated agreement worked out after the father, Paul,
          objected to her move was violated by Susan. Paul requested a change of
          primary placement to him.

          The trial court followed the recommendation of the county assessment
          team that Susan retain primary placement during the school year and with
          Paul in the summer. On appeal Paul argued that the trial court abused its
          discretion by failing to give proper weight to the fact that Susan had
          violated the prior custody agreement between them by denying him periods
          of placement. He argued, based upon Pamperin v. Pamperin, 112 Wis. 2d
          70, 331 N.W.2d 648 (Ct. App. 1983), that an unauthorized move with the
          children out of state mandates a transfer of placement and custody to him.
          The appellate court stated that Paul misconstrued Pamperin which stands
          for the proposition that "one parent's interference with the custody rights of
          another may be grounds for modifying an earlier judgment." (Emphasis in
          original.) It further stated that the Pamperin rule means that when
          custodial interference has a negative effect on children it is proper grounds
          for modifying custody.

          This is a similar result to that in Wiederholdt v. Fischer, 169 Wis. 2d 524,
          485 N.W.2d 442 (Ct. App. 1992), where evidence of parental alienation
          syndrome was not sufficient to warrant a change of placement and confirms
          a trend that custody/placement modification will be harder to obtain. In
          both cases the bond of the children to the primary placement parent did not
          appear to be affected by that parent's interference with the other's
          placement rights and, therefore, it was not in the children's best interest to
          change placement.

     B.   Order to Mediate Did Not Deprive Father of a Hearing on Placement--
          Doerr

          Charles and Mary Ellyn were divorced in 1993. They had four minor
          children. More than two years later, Charles moved to change placement
          to reflect an informal modification that the parties had been following, for
          joint custody, and to revise child support for the three remaining minor
          children. Mary Ellyn countered for an increase in maintenance, and for
          uninsured expenses Charles owed for the children and for her attorney fees.

          The GAL submitted two reports, one apparently shortly before the hearing
          and after a court imposed deadline. At the hearing Charles requested an

                                       5.
           adjournment to mediate which Mary Ellyn opposed. The court proceeded
           with an evidentiary hearing, but did order the mediation. At the conclusion
           of the hearing the judge ordered the schedule proposed by the guardian
           (two children shared approximately equally and one on an alternating
           weekend schedule with Charles). The court further stated that the parties
           could return if mediation failed and they had additional evidence to offer.
           When mediation failed, Charles requested another hearing on placement
           without any new evidence, but based upon the same statements he had
           made in the initial hearing. The trial court did not schedule another
           hearing.

           Charles appealed stating that the court had denied him due process by
           refusing to grant him another hearing. The District IV Court of Appeals
           upheld the trial court finding no basis for the alleged denial of due process.
            The trial court had conditioned another hearing on the submission of
           additional evidence and none was presented.


II.   CHILD SUPPORT . . . CHILD SUPPORT . . . CHILD SUPPORT

      A.   Change in HSS 80 Child Support Law Is Not Substantial Change in
           Circumstances Permitting Modification -- Beaupre

           Sandra and Eric were divorced in 1995, before the change in HSS 80 that
           provided greater reductions in child support for a shared time payer.
           Within 6 weeks of the judgment Eric moved the court for a reduction of
           support under the then new HSS 80. He did not show any change of
           circumstances other than the change in the law. The trial court granted the
           reduction and denied Sandra's request for attorneys fees and costs for
           frivolous action under '814.025. On appeal District IV reversed the trial
           court's child support order but not the order on attorney fees and costs.

           District IV had also decided the case of Licary v. Licary, 168 Wis. 2d 686,
           484 N.W.2d 371 (Ct. App. 1992), in which it determined that the
           amendment to the statute permitting an award of joint custody over one
           parent's objection was not a substantial change of circumstances with no
           other factual change since the last order. It applied the same reasoning in
           this case. The change to the statute is not a substantial change of
           circumstances in and of itself. Such a change must be a factual change
           from the time of the last order to warrant a child support modification. If
           there has been no showing of a substantial change of circumstances, then
           the threshold statutory requirement of '767.325 has not been met and no
           modification is in order.

           The court distinguished both Behnke v. Behnke, 103 Wis. 2d 449, 309
           N.W.2d 21 (Ct. App. 1991) and Schmitz v. Schmitz, 70 Wis. 2d 882, 236
           N.W.2d 657 (1975), on the grounds that those cases dealt with statutory
           changes in the court's jurisdiction to order or modify support, while the
           change to HSS 80 did not affect the trial court's jurisdiction, but merely
           changed the methodology for calculating support.
                                         6.
B.   Trial Court Can Deduce Child Support Payer's Ability to Pay From All of
     the Facts Before It -- Lellman

     The father, Jay, appealed the trial court's determination that he had annual
     gross income of $100,000 available to pay child support for his one child.
     The parties were married for one year, had a child and divorced in 1980.
     In 1995, Annette brought a motion to increase child support from $120 per
     month. Jay contended that he had adjusted gross income from his self
     employment of $10,967 in 1994. His income tax return showed unadjusted
     income of $126,865, which the trial court found to be understated. Jay
     was ordered to produce income tax returns, bank statements and other
     financial information and did not comply fully. From the information
     produced the court could determine that there were inconsistencies in his
     business expenses and income reporting. His lifestyle included a 31 foot
     boat, a 1987 Mercedes, a 1987 Acura and a substantial number of other
     assets including rental properties worth over $200,000. The trial court
     determined that Jay could not support his lifestyle on his alleged income
     and it deduced his income from all of the facts and circumstances including
     his rental and business incomes, his cash receipts and his asset
     accumulation.

     Jay contended on appeal that the trial court's methodology for determining
     his income was flawed, in part, by failing to reduce income by reasonable
     business expenses. The appellate court, District III, affirmed. It stated that
     the trial court properly exercised its discretion in finding the facts in the
     case including the determination of Jay's income for determining child
     support. Jay argued that without the proper financial information that he
     was ordered to but failed to disclose, the trial court could not make the
     child support determination. The appellate court not only disagreed, but
     also pointed out that it was Jay's conduct that put the trial court in the
     position where it had to make reasonable approximations of his income and
     expenses. It pointed out that Jay could be subject to contempt or perjury
     charges.

     PRACTICE NOTE: Either no one raised, or the court did not believe that
     the $100,000 income on which to base a 17% child support order was
     unfair to the payer. Query whether this is a "high income" case? See:
     Nelson at II. E. below.

C.   Child Support Orders May Be Concurrent -- Hubanks

     Andrew appeals from an order entered in Crawford County ordering him to
     pay a $6,355 arrearage for a child who turned 18 in 1984. Andrew and
     Marla divorced in 1974 in Crawford County and Andrew was ordered to
     pay $60 every two weeks for support. When he did not pay, Marla
     received public assistance. In 1976 Crawford County brought a support
     enforcement action against Andrew in Iowa. A second child support order
     was entered in Iowa in the amount of $50 per month with which Andrew
     complied. In 1989 Crawford County sued on the arrearage on the

                                  7.
     Wisconsin order in Iowa. The Iowa court held that the father was not in
     arrears and dismissed the action. No mention was made in that decision of
     RURESA (Uniform Reciprocal Enforcement of Support Act) or the
     comparable Iowa statute.

     Next Crawford County sued Andrew for the arrearage in Wisconsin and
     the court found the arrears mentioned above, from which this appeal stems.
      This case involves interpretation of Iowa and Wisconsin law and the
     interplay of RURESA and UIFSA (Uniform Interstate Family Support Act,
     Chapter 769, Stats., effective April 30, 1994). Crucial to the appellate
     court's decision is the fact that Iowa law at the time of the entry of the
     original Iowa order would not have permitted a revision to a Wisconsin
     divorce judgment. Therefore, the Iowa child support order must have been
     in addition to and not instead of the Wisconsin support order.

     The court also concluded that the application of Chapter 769, that would
     have arguably precluded the dual support orders, is to apply prospectively
     only.

D.   Child Support Order That Did Not Follow New HSS 80 Upheld -- Doerr

     The placement issue in this case is discussed at I.B. above.

     On the child support issue, the trial court had rejected HSS 80 as not
     applicable to the unusual placement arrangement in this case where
     placement of two children was shared approximately equally and one was
     on an alternating weekend schedule with Charles. It ordered Charles to
     pay 25% of his gross income for child support after an analysis of the
     relevant factors under '767.32(1). Specifically, Mary Ellyn's income was
     about the same as at the time of the divorce while Charles' income had
     increased 53% since the last hearing. Although there were three minor
     children, the oldest was to spend a year in Spain as an exchange student
     and the parties would support her equally and of the other two, Charles had
     placement above the 109 day threshold for only one. It was also
     reasonable for the youngest to continue in a private school that all of the
     older children had attended. This decision was upheld on appeal.

     The appellate court rejected Charles' argument that the trial court should
     have added up all of his placement days for all of the children to determine
     the average number of days and then applied the shared time formula for
     two reasons. First, he requested that the court subtract the $6,000 in
     maintenance he pays from his gross income. There is no authority for such
     a deduction under HSS 80.02(13)(a). Second, the time with the youngest
     child did not meet the threshold and could not be used as a basis to reduce
     his support obligation.

     NOTE: This decision supports the theory among some attorneys that the
     Mary L.O. v. Tommy R.B., 199 Wis.2d 186,544 N.W.2d 417 (1996), and
     Luciani v. Montemurro-Luciani, 199 Wis.2d 280, 544 N.W.2d 561
     (1996), decisions may merely stand for the proposition that a well reasoned

                                  8.
     trial court decision that analyzes the factors under '767.25 or 767.32 will
     be upheld on appeal.

E.   Deviation from HSS 80 in High Income Case Upheld -- Nelson

     Paul and Susan were divorce in 1990 after a 4.5 year marriage with two
     minor children. See I.A. above for the post judgment dispute concerning
     placement that was resolved in Susan's favor. The parties had a final
     marital settlement agreement that set child support at $1,250 per month
     based upon an annual income for Paul, a doctor, of $60,000, even though
     his income as disclosed at the final hearing was $88,000 per year. Paul had
     also agreed to make Section 71 payments of $750 per month until Jan.
     1994 to allow Susan to finish her education and become self supporting. At
     the time of the post judgment hearing the children were 8 and 10 and Paul's
     income was $134,400. At 25% it would have yielded a monthly payment
     of $2,800. The parties agreed that this was a "high income" payer case.
     The trial court deviated from HSS 80 and order Paul to pay $1,900 per
     month for child support. This result was upheld on appeal by District II.

     Susan argued that the trial court abused its discretion by departing from the
     child support standards without properly considering all of the statutory
     factors. Susan felt the trial court did not give enough weight to the benefit
     that her staying home with the children would provide, which she would be
     able to do at the higher support amount, but not the lower. Paul argued
     this was disguised maintenance and evidence that she did not plan to
     become self supporting as planned at the time of the divorce. The appellate
     court balanced the Parrett rule which cautions against application of the
     standards in cases where the facts (high income) bear little relationship to
     the statewide norm they attempt to capture (the average amount parents
     spend in raising children) with the Hubert corollary (even when the
     percentage amount seems large on its face, such an award may be
     appropriate to maintain a child in the pre-divorce lifestyle the child would
     have enjoyed had the marriage continued.) The appellate court held that
     the trial court properly balanced these two competing interests. The child
     support was set at a high level when measured against what others in the
     community were paying but not so high that Paul was supporting Susan
     with the leftovers.

F.   Thirty-three Month Passage Overcomes Need to Show Change of
     Circumstances But Does Not Remove Judicial Discretion to Modify Child
     Support -- Zutz

     Gregory and Ann were divorce in 1990. They had one child who was 13
     years old at the time of the post judgment proceeding. Since the divorce,
     Greg's income has gone from $2,411 to $2,890 per month, while Ann's
     income has gone from $989 to $177 per month. Ann has remarried and
     had twins. Greg moved in 1995 to modify his child support based solely on
     '767.32(1)(b) and (1)(b)2 that provide that the passing of 33 months
     constitutes a substantial change of circumstances where support is
     expressed as a dollar amount. Ann brought a counter motion for more
                                  9.
     support based on her changed circumstances. Although the trial court
     found a change of circumstances, it exercised its discretion to keep the
     child support at $224 per month. This order was upheld by District II.

     The appellate court rejected Greg's argument that because the statute
     waives the need to show a change of circumstances he was entitled to a
     review de novo including the presumption that the HSS guidelines should
     be used to calculate child support. His prior agreement with Ann should
     have no bearing on this determination he argued. The appellate court held
     that the change in the law and legislative history that led to this statute did
     not modify the court's discretion to determine an appropriate amount of
     child support taking into consideration the prior agreement of the parties.
     The 33 month statutory presumption is irrelevant to the issue of whether
     child support should be modified. The trial court's reasoning in giving
     weight to the existing agreement of the parties was consistent with
     Jacquart v. Jacquart, 183 Wis.2d 372, 515 N.W.2d 539 (Ct. App. 1994).

     PRACTICE TIP: The terms of the Marital Settlement Agreement,
     especially if they demonstrate a deviation from HSS 80, may take on
     greater importance in light of this decision. Others believe, however, that
     this decision is another example of a well reasoned trial court opinion
     withstanding appellate scrutiny under the abuse of discretion standard.

G.   Military Retirement Pay Must be Considered as Property and May be
     Considered as Income to the Recipient for Purposes of Calculating Child
     Support. See Cook, sec. IV.A. below.

H.   Lack of Knowledge of a Child for Fifteen Years Is Not a Basis to Deviate
     From the Percentages. In re Paternity of Brad Michael L.

     After fifteen years, the mother of a child sought to commence a paternity
     action in order to gain funds to send the child to college. (The suit was
     actually commenced by the child due to the statute of limitations). The
     father had no idea he had the child, and had married and started a family.
     He had also run a farm business and a logging business. The trial court
     was not too happy about the mother=s timing, purpose, and equities. The
     court fashioned an extremely favorable ruling for the father, and the court
     of appeals reversed. There were six issues. The issues and the disposition
     of each follows:

     .......................................................................................................1.
                                                   .........................................................The
                                                  court has the authority to assess child
                                                  support commencing the day of the child=s
                                                  birth even though the father did not know
                                                  the child existed.

     .......................................................................................................2.
                                                   .........................................................Sec.
                                                  767.51(4), Stats., is not a violation of the ex
                                              10.
                                           post facto clause of the U.S. Constitution.

.......................................................................................................3.
                                              .........................................................Ignora
                                             nce of one=s paternity is not a permissible
                                             factor for deviation. PRACTICE NOTE:
                                             However, ignorance of one=s paternity may
                                             have effected a father=s choices, which are
                                             considerations for deviation (such as
                                             standard of living and circumstances, relative
                                             financial means, earning capacity, and
                                             responsibility of support of others.)

.......................................................................................................4.
                                              .........................................................Marital
                                             property laws do not apply in setting the
                                             amount of child support. Therefore, the trial
                                             court erred in calculating the father=s base
                                             income by dividing his and his wife=s
                                             adjusted gross income and dividing by one-
                                             half. The court should have looked only to
                                             the father=s income. PRACTICE NOTE:
                                             What if the married couple of a joint
                                             investment which spins off noticeable interest
                                             and/or dividends?

.......................................................................................................5.
                                              .........................................................The
                                             inclusion or exclusion of depreciation in
                                             setting income is within the trial court=s
                                             discretion, but the court must explain why it
                                             included or excluded the depreciation.

.......................................................................................................6.
                                              .........................................................Impute
                                             d income for child support may include the
                                             earning potential of unproductive assets. In
                                             this case, the father owned and operated two
                                             businesses before he knew he had the child in
                                             question. The losses of one set off the
                                             income of the other. The court stated that
                                             the business with the losses was
                                             Aunproductive@ and the imputed income
                                             section of the Administrative Code applied
                                             to that business. The court stated that the
                                             imputed income could be used even though
                                             there was no evidence of shirking. This was
                                             necessary to Amore accurately reflect [the
                                             father=s] total income available for child

                                        11.
                                                       support. PRACTICE NOTE: This may be
                                                       the most significant portion of the case. The
                                                       offset arrangements, in reality, do accurately
                                                       reflect the total income for the child. It is
                                                       inconsistent to suggest that the child benefits
                                                       from the profitable business and the payer
                                                       must make up for the less profitable
                                                       business. The child=s Aincome@ is guaranteed,
                                                       when in reality, no one else=s income is
                                                       guaranteed. As long as there is no shirking,
                                                       why should the child benefit from the
                                                       profitable business and not share the loss in
                                                       the less profitable business?

             .......................................................................................................7.
                                                           .........................................................The
                                                          trial court may consider college expenses
                                                          because it is a factor in setting support, but
                                                          any payments must be paid while the child is
                                                          still a minor.

II.   Trial Court Erred by Imposing a Trust on Child Support Arrears When it Made No
      Finding That the Payee Was Unable or Unwilling to Wisely Manage the Child
      Support Money Owed. Cameron

             This is a reversal of the Court of Appeals decision at 197 Wis. 2d 618, 541
             N.W.2d 164 (Ct. App. 1995). The child support payer incurred arrearages
             of $118,140, including interest. The court created a trust funded by the
             arrearages for the children. The court provided that the trust was owned
             by the parties, and the court would control the disbursements. The court
             also sent current support at $2,500. One rationale of the trust was that it
             would provide support in the event the payer could not meet his monthly
             obligation.

             The court stated that placing support arrearages in a trust jointly owned by
             the parents and controlled by the court is a substantial alteration of the
             custodial parent=s decision making authority. The court held that AWhen a
             non-custodial parent seeks imposition of a trust on arrearages owed, that
             parent must demonstrate by substantial evidence that the trust, which
             substantially alters the custodial parent=s decision making authority, is in
             the best interests of the children....The Resong standard which we adopt as
             modified also requires, when the primary custodian does not consent to the
             trust, a factual finding as to whether the primary custodian was incapable
             or unwilling to wisely manage the child support money. Without such a
             finding, a court may not strip the primary custodian of his or her decision-
             making authority.@

             The trial court=s determination that a trust was in the children=s best
             interests was not enough. The court stated AA trust funded with money

                                                    12.
earmarked for past needs is not the proper mechanism by which to address
future needs.@ Note the present/future dichotomy here which was
dismissed in Tukker M.O.

PRACTICE NOTE: The standard in Resong for the imposition of a trust
was reduced from Anecessary to the best interests@ to Abest interests of the
child.@ Also, the opinion is limited to cases involving arrearages based on
support orders entered prior to August 1, 1987. It also does not apply to
modification actions. Finally, the case applies when the custodial parent
does not consent to the trust.




                             13.
III.   SPOUSAL MAINTENANCE . . . SPOUSAL MAINTENANCE

       A.   60/40 Split of Joint Income in 27 Year Marriage Reasonable Under the
            Circumstances. Spindler

            The parties were married 27.5 years. The husband was an engineer with
            income of $60,000, and the wife owned her own interior decorating
            company and earned $12,000 a year. A vocational expert testified that the
            wife=s earning capacity was closer to $20,000 per year. The court imputed
            income to the wife of $20,000 per year indefinitely and divided the joint
            income 60/40, with the husband receiving a Arough@ 60% of the income.
            The court of appeals affirmed on the basis of a reasonable exercise of
            discretion with little discussion.

       B.   Total Number of Years Parties Were Married, Even Though Interrupted
            With a Divorce, is a Proper Factor in the Trial Court=s Discretion in Setting
            Maintenance. Wolski

            The parties were married for twenty years, divorced for 11 months,
            remarried, then divorced after three years. All of the issues were settled in
            the second divorce except for maintenance. The husband argued that the
            court should consider the marriage a three year marriage, and the stipulated
            maintenance terms of the first divorce a factor in awarding maintenance, if
            any, in the second time around. The first divorce agreement provided
            maintenance in the amount of $200 per month for fifty-four months.

            The court concluded that it was appropriate to consider the all of the years
            of marriage in setting support. The court reasoned that the fairness
            doctrine and the statute relates to the standard of living of the parties. The
            standard of living includes the standard of living achieved in the first twenty
            years. Further, the court held that the terms of the earlier divorce may be a
            consideration for the trial court, but the terms are not binding on the court.




                                         14.
IV.      PROPERTY DIVISION . . . PROPERTY DIVISION

         A.     Military Retirement Pay Must be Considered as Property and May be
                Considered as Income to the Recipient for Purposes of Calculating Child
                Support. Cook

                The Supreme Court affirmed the Court of Appeals. After a 12 year
                marriage, the parties divorced with two young children. The noncustodial
                parent was in military retirement pay status, and expected to earn income
                from other work after the divorce. The custodial parent=s day care
                exceeded $800 per month. A portion of the military pay was divided
                between the parties, and a portion awarded to the noncustodial parent.
                The entire amount of military pay the noncustodial parent received was
                used to calculate child support.

                The court held that the military retirement pay was to be divided as
                property rather than treated as income. The court reasoned that because
                private sector pensions are considered property as a matter of law, and
                because military pay is not distinguishable, then military pay is divisible
                property. This applies whether the military retirement is or is not in pay
                status.

                There was no question that the noncustodial parent=s military pay was
                income under the Administrative Code for calculating child support. The
                Supreme Court rejected the noncustodial parent=s argument that to apply
                the percentages to the military pay after it was divided was Adouble
                counting.@ First, the court reasoned that the rule against Adouble counting@
                for property and maintenance awards is not absolute. Because the family
                court is a court of equity with the responsibility of treating each unique
                financial situation fairly, the court=s discretion to make appropriate
                economic arrangements cannot be absolutely limited. Second, the Adouble
                counting@ rule does not apply to child support. The court reasoned that
                when a pension is counted for property and child support, it is being
                counted for the first time for child support. This is because the child does
                not have an interest in the pension. Therefore, the pension is not being
                double counted in relation to the child.

                PRACTICE NOTE: The Court of Appeals case of Maley v. Maley, 186
                Wis. 2d 125, 519 N.W.2d 717 (Ct. upreme Court interpreted Maley to
                stand for the proposition that capital gains of a house sale may be used for
                calculating child support depending upon the individual facts of the case.
                The rule is, therefore, flexible.



      B. Minimal Improvement and Routine Maintenance Will Not Convert Gifted Real
      Estate to Marital Property Subject to Division. Spindler

                The husband inherited a cottage. There was not dispute it was gifted, and

                                             15.
          there was no dispute that the title was in the husband=s name. The issue
          was whether the wife=s maintenance and upkeep changed the character of
          the property. Testimony was presented that her contributions constituted
          maintenance and upkeep, and the appreciation in the property was due to
          the location of the real estate rather than the cottage=s condition. Marital
          funds were expended on the cottage for the maintenance and upkeep. The
          court of appeals reversed and held that her efforts did not constitute
          improvements, and the property was excluded. The court stated that the
          improvements must Asubstantially@ increase the value of the property, and
          the mere application of marital funds does not change the separate
          property=s character. Further, when the property=s value is increase, the
          result may be that only the appreciation is subject to division rather than
          the property in its entirety. Therefore, the case was remanded to determine
          the amount of expenditures on the cottage, which could be divided.

          PRACTICE NOTE: This case is arguably inconsistent. Appreciation can
          be marital if it is due to the efforts of the parties, see Haldemann v.
          Haldemann, 145 Wis.2d 296, 426 N.W.2d 107 (Ct. App. 1988), but it is
          not marital if the appreciation is due to economic conditions. See Plachta
          v. Plachta, 118 Wis. 2d 329, 348 N.W.2d 193 (Ct. App. 1984). In
          Spindler, the appreciation was attributable to the location of the property
          rather than the parties= work. The appreciation is arguably not marital.
          However, the case was remanded to determine what was spent on the
          cottage so that the expended amount can be divided. If the improvements
          did not increase the value, than why is the money spent on the
          improvements being divided? Isn=t that contribution de minimus? From a
          practical standpoint, does this case mean that if the appreciation is not
          marital, the appreciation can stexpenditures? Does this mean we will be
          going through years of receipts?

          The practitioner should also note that separate property may be marital
          depending upon its use by both parties. Also, even though property may
          be kept out of the marital estate, the division of the marital estate may be
          altered because of the excluded treatment of separate property.

V.   MARITAL PROPERTY. . . MARITAL PROPERTY                      ...

     A.   Where a Party Impermissibly Changes Life Insurance Beneficiaries During
          Divorce Action and Subsequently Dies, Any Claim By the Surviving
          Spouse is Controlled by the Marital Property Act. Socha

          Elaine and Joseph were married for thirty-five years when she initiated a
          divorce action. They had two adult children. During the pendency of the
          divorce, both parties were prohibited from changing beneficiaries on their
          life insurance policies. Joseph made one of his children the beneficiary of
          his insurance. He was killed in a car accident, and the son was in line to
          receive $136,000. Elaine learned of the change in beneficiary after
          Joseph=s death.


                                       16.
           The trial court ruled that Joseph acted contrary to the court orders. It
           imposed a constructive trust, based in equity, on the proceeds. The court
           of appeals reversed, holding that the remedies under Ch. 766 controlled.
           The court reasoned that upon Joseph=s death, the divorce action terminated
           and the parties were married. The remedies under Ch. 766 are exclusive
           between spouses, and the a constructive trust, based in equity, was not
           available to the trial court.

VI.   ATTORNEYS . . . ATTORNEYS . . . ATTORNEYS

      A.   Payer Who Would Not Disclose Income Had to Pay Ex-wife's Attorney
           Fees -- Lellman

           See II.B. above for discussion of the child support issue.

           Jay further contended that the trial court's award of attorney fees to his ex-
           wife was inappropriate. Again the appellate court affirmed the trial court
           and, again, it pointed out that it was Jay's very behavior, in violation of a
           court order to produce the financial information for the basis for a child
           support determination, that required Annette's attorney to spend additional
           time gathering financial information. Jay's "intentional conduct fully
           warranted the court's awarding of attorney fees so as to compensate
           counsel" for the additional time spent. Needless to say the court believed
           Jay had an ability to pay.


      B.   Request to Modify Child Support Based on Change in HSS 80 Not
           Frivolous Action Warranting Attorneys Fees -- Beaupre

           See discussion at II.A. above on the child support issue.

           The trial court had denied Sandra's request for attorney's fees and costs
           under '814.025, Stats. The appellate court upheld that decision noting
           that the analysis under '814.025(3)(b) as to whether there is a good faith
           argument for an extension, modification or reversal of existing law depends
           upon what a reasonable party knew or should have known, which is a
           question of fact for the trial court. Whether the knowledge of the facts
           would lead a reasonable party to conclude that an action is frivolous,
           however, is a question of law. Although Eric's position may have been
           unpersuasive, the court found that he did not "slide over the line that
           divides impermissibly frivolous arguments from those that are merely
           labored." (Citation omitted). The court remanded, however, for a
           determination as to whether the award of legal fees for the appeal was
           necessary under the Bloomer case.

      C.   Ex-spouse Who is Unable to Pay Her Own Attorney Fees Due to Her
           Career Choices and Overtrial Will Not Receive Contribution to Fees from
           Ex-husband Even Though She Has a Need and He Has the Ability to Pay --
           Nelson

                                        17.
              See discussion at I.A. on custody and placement and II.E. on child support.

           Although Susan won on custody, she lost on child support and the
           appellate court agreed that Paul should not have to pay her fees even
           though he had an ability to pay and she had a need for his help. The trial
           court was concerned that Susan had not made the most of her education,
           had put herself in a position where she could not afford the fees by not
           pursuing a career and had chosen to litigate rather than striving for
           compromise. Susan argued that this showed that the trial court was biased
           against her for her choice to stay at home and not work outside of the
           home. On appeal, however, in upholding the lower court, the appellate
           court interpreted the trial court's statements to mean that Susan had
           engaged in overtrial.
VII.   PATERNITY . . . PATERNITY . . . PATERNITY

       A.     Trial court Erred When It Held a Pre-blood Test Hearing on the Best
              Interests of the Minor Child. In re the Paternity of Baby Doe,

              Thomas brought a petition for paternity and alleged that he had consensual
              intercourse with Kimberly. Kimberly moved that the petition be dismissed
              because intercourse was not consensual, she fears for her safety, and
              another man was considered the father by the child. Before blood tests
              results were disclosed, the court conducted a best interests hearing. The
              court concluded that if Thomas was the father, the child was as a result of a
              sexual assault, and as a matter of law, it was not in the child=s best interests
              to the child for paternity proceedings to continue. The court granted the
              motion to dismiss.

              The court held that sacs. 767.45(1), and 767.48(1)(a), Wis. Stats. are plain
              and unambiguous. They expressly provide the alleged father the right to a
              determination of paternity, regardless of the circumstances of the case.
              There is no provision for a best interest hearings, and therefore, the trial
              court erred.

              The mother and the guardian argued that the court=s decision denied Baby
              Doe equal protection. In the case of a challenge to the paternity of a
              presumed father, the court does conduct a best interests hearing and can
              deny blood tests. They argued that the same should apply to Baby Doe.
              The court concluded that the statute differentiates between children born to
              a marriage and born out of wedlock. The distinction is rationally related to
              the legislative purpose of seeking to maintain an existing father-child
              relationship, and to preserve family unity. Therefore, sec. 767.458(am)
              applies only to children born to a woman while she was married and does
              not violate the principles of equal protection.

       B.     A child and a Mother Do Not Have an Absolute Identity of Interest
              Allowing the Application of Res Judicata, and a Fundamental Fairness Test
              Can Override the Application of Collateral Estoppel. In re the Paternity of
              Amber J.F.,
                                            18.
     This case is an extension of the earlier case of Chad M.G. v. Kenneth J.F.,
     194 Wis.2d 690, 535 N.W.2d 97 (Ct. App. 1995)(mother and child are not
     in privity and claim preclusion does not bar subsequent action). Lynn
     commenced a paternity action against Richard. The child, Amber, was not
     named as a party and no guardian ad litem was appointed. Even though
     blood tests showing a probability of paternity of 99.97% was admitted, the
     jury unanimously concluded that Richard was not the father.

     Approximately 10 years later, Amber brought a paternity action. Michael
     claimed res judicata and collateral estoppel, and the petition was dismissed.

     In regard to res judicata, the court essential applied Chad M.G. In regard
     to collateral estoppel, the court explained that collateral estoppel can be
     applied offensively or defensively. The court applied a five factor
     fundamental fairness test to determine if the action should continue.
     Although the court stated the test is applied in a case-by-case setting, the
     bottom line was stated as follows: Although the burden on the state and the
     respondent involves time and money, the benefit to the child will affect the
     child=s personal status throughout the child=s lifetime. Therefore,
     fundamental fairness bars the use of issue preclusion to prevent the child
     from proceeding with another action against the respondent.

     PRACTICE NOTE: This case confirms what some attorneys have been
     saying in the last year: proceed at great risk if not joining a minor child in
     the paternity action. See also In re the Paternity of Mahonia M.M., 202
     Wis. 2d 461, ___ N.W.2d ___ (Ct. App. 1996).

C.   A Jury=s Verdict Finding Of No Paternity Can be Reversed. Lily R.A.P.

     In 1988, the state commenced a paternity action against Michael wherein
     three blood tests were conducted. The range of the probability of paternity
     was 95.9% to 99.9%. The action was dismissed without prejudice. The
     state subsequently brought another action in 1993 and the blood tests
     showed a probability of paternity of 99.69%. Summary judgment was
     denied because Michael claimed he never had intercourse with Lisa. The
     court disallowed jury instructions which stated that Michael was rebuttably
     presumed to be the father based upon sec. 767.48(am), Stats. The jury
     found that Michael was not Lily=s father. The trial court set aside the
     verdict on the ground that it was not supported by any credible evidence.
     The court reasoned that there was no evidence in the record that any
     person other than Michael had access to Lisa during the conceptive period.

     The denial of summary judgment was upheld. The court determined that
     mere denial of intercourse, where access during the conceptive period is
     established and no other potential fathers are identified, is sufficient to
     rebut the presumption under sec. 767.48(am), Stats.

     In regard to the sufficiency of the evidence and the judgment

                                   19.
notwithstanding the verdict, the court determined, as a matter of law, that
it is not necessary for the respondent in a paternity petition to produce
evidence of who the real father is in order to sustain a verdict of non-
paternity. Otherwise, the burden of proof would be impermissibly shifted.

However, the appellate court reversed because of the failure to include the
jury instructions that Michael was rebuttably presumed the father. The
court concluded that sec. 767.48(am), Stats., was ambiguous. It
determined that if a combination of all of the genetic tests, rather than any
one single test, results in a probability of paternity of 99.0% or higher, then
the jury instructions should follow.

PRACTICE NOTE: In a footnote, the court suggested that the parties
consider joining the child as a party pursuant to In re Paternity of Amber J.
F. Should every paternity action join the child?




                             20.
VIII. PROCEDURE . . . PROCEDURE . . . PROCEDURE

     B.   The Family Court has the Authority to Join Third Parties for Certain
          Equitable Claims Where Joinder is Necessary to a Just and Complete
          Adjudication of the Cause of Action. Zabel

          The wife sought to join her husband=s mother as a third-party in the divorce
          action. The wife claimed that property titled in mom=s name was marital
          property and subject to division. The wife claimed that the husband used
          marital assets to purchase the property, to build and maintain the property,
          and to pay the taxes. She also alleged the property was titled in mom=s
          name to avoid division in the event of a divorce.

          The court of appeals held that third party joinder actions are available to
          the family court. Procedural rules governing other civil actions are to
          govern divorce cases except where explicitly excepted. Further, because
          the property in question was worth over $100,000 and may constitute the
          majority of the marital estate, third-party joinder is appropriate to provide a
          complete adjudication. The court also held that a jury trial was not
          required because the requested remedies were equitable in nature.




                                       21.

				
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