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Legal News GavelThe Wisconsin courts take child support payments very seriously and demand that parents pay close attention to ensure that they are meeting their obligations. While many may think that child support is something that can be put on hold for a period of time while dealing with tough or unpredictable circumstances, the reality is that courts will allow parents very little leeway around their obligations to pay. This is illustrated in a recent decision before the Wisconsin Court of Appeals.

In Henson v. Henson, Mr. and Mrs. Henson became estranged in 2012. During a child support hearing that year, the Waushara County Child Support Agency petitioned the court to order Mr. Henson to pay child support to Mrs. Henson because the children were living with her at that time. After reviewing financial records and Mr. Henson’s income, Mr. Henson was ordered to pay $116 per week in child support.

In 2015, the child support agency moved to modify that child support order after Mr. Henson left his job and moved into self-employment. Based on the previous unemployment income he had received and his current self-employment, the agency made a recommendation that his child support be increased to $144 per month. Mr. Henson opposed this increase and argued that he had been diagnosed as diabetic and demoted at his old job after he was found unconscious. When he challenged the demotion, he was fired. He stated that although he was now self-employed, he had had difficulty in finding new work, and his unemployment benefits had run out. The court, however, followed the child support agency’s recommendation and raised Mr. Henson’s monthly child support obligations.

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Legal News GavelDuring a divorce, most couples think primarily about how the assets they have will be split up. They want to know who will get the house, the retirement accounts, and the most time with the kids. What many couples may not realize is that the debts of the family must also be split between the couple when they divorce, particularly when those debts are accrued during the marriage. A recent case before the Wisconsin Court of Appeals looks at how the repayment of credit card debt that arose during a marriage should be allocated between divorced spouses.

In Collison v. Wyderka, Andrew Wyderka and Allison Collison were married over a period of 12 years, starting in 2001. During that period of time, Allison accrued over $24,000 in credit card debt on a card that was in Andrew’s name. According to Allison, the debt was based on purchases made for the family and benefited all of the family members. Eventually, the card became delinquent and went to collections. Allison enlisted the help of her father, and he managed to negotiate the debt down to $7,500, which he paid off in full. Allison and Andrew promised to repay Allison’s father for the debt.

Shortly after the repayment, Andrew filed for divorce. During the pendency of the divorce proceedings, Allison’s father sent a letter to Andrew, demanding repayment of the debt. A small claims court action was eventually initiated. Allison’s father sought repayment of the debt. Andrew then sued Allison for her portion of the repayment, and Allison countersued Andrew, claiming that he had agreed to pay the debt in full.

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Legal News GavelWisconsin law and public policy give significant preference to marriage and marital families. The structures of family law and divorce revolve around the idea that a couple who love each other will get married, have children in wedlock, and later get divorced if needed.

Yet many couples, especially in recent years, have chosen to cohabitate, merge finances, and raise families together without ever officially marrying. When these couples break up, they don’t have the ability to utilize the divorce system in order to divide their property equally and fairly, and, as a result, one spouse sometimes gets the short end of the stick.

As a recent Wisconsin Supreme Court case makes clear, one remedy for this situation that the courts have adopted is to allow former partners in a relationship to seek unjust enrichment claims against the other when the assets of a relationship are not evenly divided.

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Legal News GavelAfter an initial order for child support is made, the obligation falls on the parties to ensure that any necessary child support payments are made on a monthly basis. When a party falls behind on child support payments, this is known as arrears. The party who is entitled to receive the outstanding child support can attempt to recover these arrears by negotiating payment with the party who is not yet paying, or, if not successful, they can file a motion with the court to recover the outstanding amounts, as well as penalties such as interest and attorneys’ fees.

In In Re The Marriage Of : Connie M. Weiland v. John D. Weiland, Mr. and Mrs. Weiland divorced in 1998 after several years of marriage. As part of their divorce, Mr. Weiland was ordered to pay child support to Ms. Weiland as well as to split uninsured medical expenses with her. Mr. Weiland’s employer was supposed to calculate and take child support out of Mr. Weiland’s paycheck, but at times the employer failed to withdraw the correct amount.

For unexplained reasons, Ms. Weiland waited until 2013 to raise unreimbursed medical expenses with the court, and only in 2015 did she file a contempt motion with the court, alleging that Mr. Weiland had not paid certain medical expenses and child support. The overall amount owed was approximately $9,000. Mr. Weiland had previously paid $355,000 in child support.

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Legal News GavelDuring the process of getting a divorce, most couples will consider whether either spouse should be entitled to receive spousal maintenance. Spousal maintenance is a payment that one spouse gives to the other in order for the spouse receiving the payment to keep up with the standard of living to which they are accustomed. Whether Wisconsin spousal maintenance should be awarded is based on the circumstances of the spouses at the time of the divorce, including the needs of the parties, the income of the parties, and the standard of living during the divorce.

When spousal maintenance is awarded, it is a finalized and defined amount of money that must be paid every month. However, spousal maintenance can be changed when a substantial change of circumstances occurs. Things like a medical condition, a special needs child, a job loss, or a move can all represent a substantial change of circumstances. A recent case before the Wisconsin Court of Appeals looks at whether a voluntary job change can also be a change of circumstances justifying a modification of spousal maintenance.

In Marriage of Purdy, Rande and Lisa Purdy divorced after 34 years of marriage. At the time of the divorce, Rande was working as a director of sales for a family liquor company and earning twice what Lisa was earning as a nurse at the Mayo Clinic. As a result of the disparity of their income, the court awarded Lisa $1,000 a month in spousal maintenance.

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In Wisconsin parental termination proceedings, a parent whose parental rights are at risk has the constitutional right to effective counsel, much as a criminal defendant has. This means that the parent must be adequately represented in court, and his or her counsel should not commit fundamental errors that prejudice the parent’s defense. When these types of errors occur, a parent may be able to have termination proceedings reopened if he or she can show that ineffective assistance occurred.

In In Re Termination of Parental Rights of A.RC and D.RC, the State of Wisconsin attempted to terminate the parental rights of D.C. D.C.’s two children, A. RC and D. RC, were removed from D.C.’s home after it was discovered that the children were being physically and sexually abused. D.C. was ultimately charged with felony crimes and sentenced to prison for this abuse. During that time, A. RC and D. RC were placed in a foster home, and conditions were set up for the eventual return of the two children to D.C. At the time, however, D.C. was barred from having contact with A. RC as a result of the criminal conviction, and thus he could not visit the kids or have significant contact with them.

About a year later, the state initiated proceedings to terminate D.C.’s rights based on his failure to meet the requirements for reunification and his failure to assume parental responsibility. During the termination proceedings process, D.C. was released from prison and acquired counsel. At an initial pretrial conference, D.C.’s counsel requested that special jury instructions be given to explain that D.C. could not fulfill his parental responsibilities because of the no-contact order and incarceration, rather than any intentional failure on the part of D.C. The judge concluded that he would consider the instructions but reserved the issue for trial. After the pretrial conference, the case was reassigned to a new judge, and the trial was pushed back. D.C. ended up with different counsel for the final trial, and, when the judge offered the standard jury instructions, D.C.’s new counsel did not request the special instructions previously offered by D.C.’s prior counsel. The jury ultimately determined that D.C.’s parental rights should be terminated.

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Legal News GavelWhen Wisconsin courts consider where to place children, their foremost concern is ensuring that the best interests of the child are respected and that the child is given the best opportunity to find a home environment that is safe and supportive. While sometimes this means that a parent rehabilitates his or her relationship with a child and they are reunited, other times it means that the courts must look to foster parents or adoption for the child. While adoption is never the first choice for a court, it is sometimes necessary when a parent cannot uphold his or her responsibilities.

In a recent Wisconsin child custody case, the court considered what to do when an initial plan for adoption falls through for a child and whether to consider reopening termination proceedings for a biological parent. In the case, M.G. was removed from the home of her mother, R.G., after she was found to be suffering from dehydration and malnutrition. In October 2015, the court held a hearing to impose conditions that R.G. needed to meet for the return of her child. R.G. failed to comply with the conditions, and in September 2016, a petition to terminate her rights was filed. R.G. failed to show up for the pretrial hearing and failed to attend the final dispositional hearing.

At the dispositional hearing, the court heard testimony from various parties that M.G. was doing well with her foster family and that it was anticipated that they would try to adopt her. The court determined that it was in the best interest of M.G. that R.G.’s parental rights be terminated and that she be transferred to the custody of the state, where she could then be adopted. Unfortunately, in March 2017, M.G. was transferred out of her foster family after it was discovered that her foster mother was physically abusing her. At this time, R.G. moved to reopen her disposition hearing on the basis of the new evidence that M.G. was no longer with her foster family. The State opposed the motion, and, after a hearing, the lower court ultimately concluded that the termination of R.G.’s parental rights should stand because the termination of rights was not contingent on M.G.’s foster family adopting her, but instead it was simply in her best overall interest to be adopted.

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Legal News GavelWith the importance of higher education in today’s society, many couples who are contemplating divorce must discuss not only how child support will be divided while their children are growing up, but also whether, and how, their children’s higher education expenses will be addressed. A recent Wisconsin child support case before the Wisconsin Court of Appeals looks at how to address college expenses when a marital settlement agreement is ambiguous about this responsibility.

In Marriage of North v. Farris, Ms. North and Mr. Farris divorced after four years of marriage. During the course of their marriage, they had two daughters together. Ms. North and Mr. Farris agreed to a marital settlement agreement during the course of their divorce, which included provisions for child custody and child support. The MSA also provided for the payment of higher education expenses. It stated that Mr. Farris would pay for five years of tuition and books, should their children go to the University of Wisconsin-Madison, and would split room and board with Ms. North.

The couple’s daughter Natalie attended the University of Wisconsin-Madison and took 10 semesters (five years) to graduate, plus three summer sessions. Ms. North sought reimbursement from Mr. Farris for these expenses, but Mr. Farris refused to pay for the last two semesters of Natalie’s schooling, saying that the MSA obligated him only to pay for five school years, or 10 semesters, which Natalie had already exceeded. Ms. North argued that the MSA required Mr. Farris to pay for five calendar years, regardless of the number of sessions or semesters Natalie completed.

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Legal News GavelWhile most couples enter into a divorce hoping to complete the process as amicably as possible, that is not always the case. Whether due to disagreements over money, accusations of cheating or other offensive conduct, or battles over custody, a Wisconsin divorce can quickly turn ugly. Name-calling and fights over possessions are one thing, but when a spouse’s actions go from that to verbal or physical harassment, it may be time to get a court involved.

In Zernia v. Zernia, Sharon Zernia did just that. After experiencing harassment from her ex-husband, she sought an injunction to stop any further harassing behavior. Sharon and John Zernia divorced in 2011, and the process was a very contentious one. Several years later, in 2015, John approached the Pastor at the church that Sharon and her family attended, and he had several meetings with the Pastor to alert him to immoral conduct in which he believed Sharon had engaged, including stealing items from his home and being a “sadly mentally ill” mother. John also printed and distributed 110 flyers at Sharon’s church that also made these allegations about Sharon. After Sharon learned of the flyers, she petitioned the court for an injunction against John to keep him from coming near her and from further harassing her.

At the injunction hearing, John argued that he did not intend to hurt Sharon but was merely acting in accordance with his Catholic beliefs, which required him to alert the church to Sharon’s allegedly immoral behavior. Sharon testified that she was alarmed by John’s behavior and was worried for her safety. The lower court found that while John’s efforts to reach out to Sharon’s Pastor were not harassing, the flyers that he left on cars were. Since there was no legitimate purpose to the flyers, the court granted Sharon an injunction against John. John appealed.

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Legal News GavelCourts considering the termination of parental rights often focus extensively on how termination will affect the child’s relationship with his or her parents and other relationships as well, such as connections with grandparents. Courts are always reluctant to cut off a child’s access to family members, even if those family members historically have not taken good care of the child. In considering the future of a child’s relationships, courts may sometimes seek information from foster parents or potential adoptive parents as to whether they are willing to continue to allow the child to have a relationship with his or her family members. In a recent Wisconsin child custody case before the Wisconsin Court of Appeals, the court looked at whether it is fair to consider these types of statements in termination proceedings.

In In Re N.L.P. and M.P.P., the Wisconsin Court of Appeals considered the termination of M.P.’s parental rights for failing to follow through on requirements that he maintain a closer relationship with his twin daughters, N.L.P. and M.P.P. The two girls were removed from the custody of their mother after they were discovered to have recently healed fractures that were not consistent with a fall. At the time, their mother had previously been reported for child welfare issues and was alleged to have left her children (ranging from seven years in age to infants) alone for extended periods of time. At the time, M.P. was living close to N.L.P. and M.P.P., but he had limited contact with them. He was also taking care of two other children at the time and was found to have difficulty supporting them alone. Accordingly, N.L.P. and M.P.P. were placed in foster care. A CHIPS order was implemented, and certain conditions were placed on M.P. before the girls could be returned home. These requirements included supervised visitation, parenting education, and therapy.

After several months, it was reported that M.P. was failing to meet the requirements imposed. He was inconsistent in his visits with his daughters, missed important educational and medical appointments, and did not always attend therapy. Caregivers also noticed that after unsupervised visits with his daughters, they would develop certain fears or tics, such as a stutter, that made them concerned about M.P.’s interactions with the girls. Accordingly, a year and a half later, a Petition for Termination of Parental Rights was filed against M.P. M.P. opted for a court trial, which took four days and included extensive evidence about M.P.’s actions and the girls’ situation. During the trial, the girls’ foster parents testified that they hoped that M.P. would continue a relationship with the girls even after the termination of parental rights, and they were open to accommodating that relationship. At the close of evidence, the trial court decided to terminate M.P.’s rights. M.P. appealed.

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