Suzanne R. May v. Michael T. May

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Appeal No. 2010AP177 Cir. Ct. No. 2006FA1556
WISCONSIN COURT OF APPEALS

DISTRICT IV
IN RE THE MARRIAGE OF:
SUZANNE R. May,
FILED
PETITIONER-RESPONDENT,
JAN 06, 2011
Vv.
A. John Voel ker
Acting Clerk of
MICHAEL T. May, Suprene Court
RESPONDENT-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Vergeront, P,J., Lundsten and Blanchard, JJ.

We certify this appeal to the Wisconsin Supreme Court to consider
the enforceability of child support stipulations that set a child support payment
amount, and then restrict the payor’ s right to request downward adjustments. The
published case law and our own experience suggest that these stipulations are
common. However, nearly all of the case law regarding this practice comes from
this court, without significant consideration of the subject by the Wisconsin
Supreme Court. In addition, a recent published opinion by this court appears to be
in conflict with a statement by the supreme court. Because greater clarity will be

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helpful to litigants, trial courts, and the family law bar, we certify this appeal
under WIS. STAT. RULE 809.61 (2007-08).1
The present case arises from the divorce of Michael May and
Suzanne May. A January 2008 post-judgment order contained a stipulation of the
parties that Michael would pay child support of $1203 per month. Michael and
Suzanne further stipulated that this “shall be the minimum amount due for a period
of no less than thirty-three (33) months … and Michael may not file for a
reduction in that amount for the full 33 month period.” Seventeen months later, in
June 2009, Michael moved for a reduction in the payment amount due to an
alleged involuntary loss of his employment. Suzanne opposed the motion, and the
court held that the thirty-three-month floor in the stipulation was not against public
policy and was otherwise enforceable. Michael now appeals.
Stipulations like the one in this case set a minimum child support
amount, regardless of changes in circumstances. This practice is referred to as
setting a “floor” on the support amount. The issue we certify is whether, or under
what circumstances, stipulations imposing a “floor” are unenforceable because
they are against public policy.
We begin by clarifying what this case is not about. The supreme
court has already held that “ceiling” stipulations are unenforceable. A “ceiling”
stipulation is one that prevents a support-receiving parent from seeking an increase
in payments, regardless of changed circumstances. See Frisch v. Henrichs, 2007
WI 102, ¶¶67-76, 304 Wis. 2d 1, 736 N.W.2d 85. Ceiling stipulations are against
1 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.

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public policy because they may deprive children of a needed increase in support,
and are therefore not in the best interest of children. Id.
The present case instead relates only to whether parties may stipulate
to a floor below which the support amount may not go. As far as we are aware,
this question has not been squarely presented to the supreme court. In Frisch, the
supreme court briefly addressed this point in a footnote. The court wrote:
“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.” Id., ¶74 n.23.
In contrast to the supreme court, this court has published several
opinions in which we considered a stipulation that set a floor. In 1989, we held
that a stipulation setting a child support floor did not violate public policy, but we
did not discuss the policy issues in great detail. Honore v. Honore, 149 Wis. 2d
512, 439 N.W.2d 827 (Ct. App. 1989). In 1997, we held that a stipulation setting
a floor on child support was against public policy when it contained no time limit
or opportunity for review. Krieman v. Goldberg, 214 Wis. 2d 163, 173-78, 571
N.W.2d 425 (Ct. App. 1997). In 2007, we held that a stipulation was against
public policy when it permanently prevented the paying parent from seeking a
reduction in the support amount, even though there had been a change in
placement. Motte v. Motte, 2007 WI App 111, ¶¶13-20, 300 Wis. 2d 621, 731
N.W.2d 294.
All of these cases preceded the supreme court’s footnote in Frisch.
Since that footnote, we have issued one more published decision addressing this
issue, Jalovec v. Jalovec, 2007 WI App 206, ¶¶10-20, 305 Wis. 2d 467, 739
N.W.2d 834.

No. 2010AP177
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In Jalovec, we held that a stipulation setting a four-year floor on
child support was against public policy. We relied in part on Frisch, which we
described as striking down “a stipulation requiring a four-year moratorium on
litigation, including a modification of child support.” Jalovec, 305 Wis. 2d 467,
¶19. We further relied on Krieman, which we described as saying that “a
provision preventing a child support review if the payor’s income changed was …
against public policy.” Jalovec, 305 Wis. 2d 467, ¶19. We concluded that the
combined result of those holdings meant the Jalovecs’ stipulation was against
public policy because, like Frisch, it was a four-year moratorium that did not
allow for changes and, like Krieman, it applied regardless of the payor’s reduced
income.
Of all of these cases, Jalovec is arguably the closest fact situation to
our present case. Here, the terms of the Mays’ stipulation place a thirty-three-
month floor on support that cannot be modified if, as now, the payor seeks
modification due to a reduction in income. The only potentially significant
difference from the facts in Jalovec is that the time period of the floor is
approximately one year less. We do not see an obvious reason why that difference
is sufficient, by itself, to distinguish this case from the result in Jalovec.
However, Jalovec appears to be inconsistent with the supreme
court’s footnote in Frisch. In Frisch, the supreme court made the blanket
statement that a child support floor of limited duration is not against public policy.
The supreme court explained that, unlike ceilings, a floor “ensures that a certain
amount of child support is received, which is in the best interests of the children.”
Frisch, 304 Wis. 2d 1, ¶74 n.23. In contrast, our Jalovec decision holds that a
child support floor of limited duration was against public policy. Our Jalovec

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decision does not appear to take into account the distinction drawn in Frisch
between floor stipulations and ceiling stipulations.
The party challenging the stipulation in this case, Michael, also does
not acknowledge the Frisch footnote, but he does dispute the policy conclusion
that a support floor is necessarily in the best interest of children. Michael argues
that a reduction in the payor’s support amount may be in the interest of the
children if both parents have placement. He argues that, if circumstances change
in a way that causes support payments to reduce one parent to dire financial straits,
it will impede that parent’s ability to provide for the children during their
placement time with that parent. Because many cases now include shared
placement, he argues, it is against public policy for payor parents to enter
stipulations for unchangeable support levels that may turn out to be unsustainable.
An additional reason for the supreme court to provide guidance on
this subject relates to the duration of such stipulations. Michael argues that the
thirty-three-month period in the stipulation is improper because that durational
limit is not tied to a point in time when it would be logical to reexamine support.
This argument is consistent with language in at least one of our decisions, Wood v.
Propeck, 2007 WI App 24, 299 Wis. 2d 470, 728 N.W.2d 757.
In Wood, we interpreted our own prior decisions as holding that a
support payor may agree and be bound to a floor amount of child support for a
limited period of time, if the term of the limitation is short, and it is tied to a point
in time when it would be logical to reexamine both parents’ financial
circumstances. Id., ¶20. The limited time period part of the Wood holding is
supported by our decision in Krieman. But the part of the duration requirement
that Michael relies on—that the duration be tied to a point in time when it would

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be logical to reexamine both parents’ financial circumstances—is more
problematic.
In Wood, we did not explain why the “tied to” duration requirement
is needed. Instead, we appeared to believe that the requirement had already been
imposed in Krieman and Honore. Wood, 299 Wis. 2d 470, ¶20. We now
question whether Wood’s “tied to” holding accurately reflects those two cases.
We do not mean to suggest that the requirement is a bad idea—only that it appears
to have entered our jurisprudence without careful consideration. Thus, if the
supreme court takes up the propriety of such stipulations, litigants, trial courts, and
the family law bar would benefit if the court also addresses this “tied to” duration
issue.
In summary, we believe that the tension between Jalovec and the
Frisch footnote, and the uncertain foundation of our “tied to” duration
pronouncement in Wood, provide an opportunity for the supreme court to directly
and fully address the issue of child support “floor” stipulations.

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