Friday, September 29, 2006

Case Law Development: Agreements Waiving Child Support Arrearages or Estopping Parents from Asking for Modification if Children Change Residence are Void as against Public Policy

Mother and Father had entered into a child support agreement (incorporated into a decree) that provided that both parties were estopped from seeking to modify child support based on changes in the placement of the children.  The agreement also waived of any of Father's child support arrearages owed to that point.  In this later action, the trial court credited Father for the time that one of the sons had lived with him. Mother argued that Father should have been estopped from requesting a credit because of the previous stipulation that child support would not depend on the child's placement.  The trial court held the stipulation void as contrary to public policy because it purported to remove child support issues from the jurisdiction of the courts. The Court of Appeals of Wisconsin affirmed. However, the court, sua sponte, also held that the term in the parties' previous agreement waiving Father's prior arrearages was also void as against public policy. The court remanded for a calculation of arrearages. 

On its decision to void the second part of the agreement sua sponte, the court commented:

[Father] may object that we have reached out to discuss this issue even though neither of the parties addressed it before the circuit court or on appeal. We reject this. This court may consider issues sua sponte in order to correct errors of law. ...This is particularly so where it appears that an agreement is void as contrary to public policy. ... We will not close our eyes to the fact that the agreement [Father]properly insisted is void as against public policy was agreed to in consideration of an interlocking agreement forgiving [Father's] past arrearage, itself a violation of public policy.

Motte v. Motte, 2006 Wisc. App. LEXIS 880  (September 27, 2006)
Opinion on the web (last visited September 28, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/09/case_law_develo_11.html

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