Case may clarify the enforceability of child support agreements that set minimum payments

By Joe Forward, Legal Writer, State Bar of Wisconsin

Jan. 11, 2011 – After the divorce, Michael May agreed to pay Suzanne May no less than $1,203 per month in child support for no less than 33 months. But after 17 months, May requested a downward adjustment to account for an involuntary loss of employment.

A circuit court denied May’s request, concluding that the 33-month “floor” was not against public policy and therefore enforceable. May appealed.

Now, the District IV Wisconsin appeals court has certified the case to the Wisconsin Supreme Court to determine whether stipulations that impose a minimum payment (floor) are unenforceable as against public policy.

In Wisconsin, “ceiling” stipulations are unenforceable. That means a support-receiving parent can seek an increase in child support payments, even if the parties stipulated to a maximum payment, if there has been a change in circumstances.

But, according to the appeals court, the supreme court has never squarely decided whether floor payment agreements are unenforceable.

In Frisch v. Henrichs, 2007 WI 102, 304 Wis. 2d 1, 736 N.W.2d 85, the supreme court said in a footnote that: “Stipulating to a minimum amount for a limited period of time does not violate public policy because it ensures that a certain amount of child support is received, which is in the best interests of the children.” But that was not the holding of the case.

Before Frisch, the appeals courts had determined that a child support floor violates public policy if there is no time limit or opportunity for review, or permanently prevents a paying parent from seeking a reduction despite a change in placement.

After Frisch, the appeals court ruled in Jalovec v. Jalovec, 2007 WI App 206, 305 Wis. 2d 467, 739 N.W.2d 834, that a four-year floor violated public policy.

“Jalovec appears to be inconsistent with the supreme court’s footnote in Frisch,” the appeals court wrote in May v. May, 2010AP177 (Jan. 6, 2010) (certification).

May argues that support floors may not be in the best interest of the child in shared placement arrangements. Changed circumstances could negatively affect a paying parent’s ability to provide for the children when placed with that parent, May argues.

The supreme court is also asked to decide whether a 33-month (two years, nine months) floor period constitutes a “limited period of time.” May argues that such a period violates public policy “if not tied to a point in time when it would be logical to reexamine support.”