In general, any revision of a child support order is prospective from the time that notice of one’s motion to revise child support is provided to the other party. In other words, retroactive revisions of child support are generally not allowed. However, since the Wisconsin Supreme Court’s decision in Frisch v. Henrichs, 2007 WI 102, child support payees have found a way to effectively receive a retroactive child support revision, albeit in the context of a contempt motion.
Child support orders generally require the payer to notify the Child Support Agency and the payee, in writing, within ten days, of any change of employment or substantial change in income. In Frisch v. Henrichs, a provision of the parties’ divorce judgment contained this requirement. The respondent in Frisch failed to notify either the Child Support Agency or the payee of a substantial change in income as required. The payee moved to have the payer held in contempt of court for his intentional failure to notify the payee of his substantial change in income. The Circuit Court found the payer in contempt of court and specifically found that the payer’s failure to produce the information in a timely manner, as required, permitted him to evade exposure to the possibility of a modification of his child support obligations and thereby deprive the payee and the children of their traditional remedies under statutory law. The court further found that it was not enough for the payer to provide the information at a late date prior to the contempt hearing. Rather, an essential element of the court’s order was that the payer provide the financial information in a timely manner. In Frisch, the Circuit Court found the payer in contempt and ordered as a purge condition that he pay $100,000 to the payee. On appeal, the Wisconsin Supreme Court affirmed the Circuit Court’s decision. Therefore, even though the statute disallows a retroactive revision of child support, Frisch allows the court in certain circumstances to compensate a child support payee for all or a portion of child support that the payer should have paid by means of a contempt of court motion.
Recently, our firm was involved in a similar case. In December 2001, the court made findings regarding a child support payer’s income and set the appropriate level of child support. The court order also required the payer to notify the Child Support Agency, in writing, within ten days, of any change of employment and of any substantial change of income affecting the ability to pay support. The payer did not disclose to payee any change of earnings until 2015, when the parties’ child was about to graduate from high school. Furthermore, the payer failed to notify the Child Support Agency of any change of income. In the meantime, the payee learned that the payer had experienced a substantial change in income since the time of the child support order. The court found the payer in contempt of court and ordered as an alternative purge condition that he pay $100,000 within 90 days, which he did. In addition, the payer was ordered to contribute a significant amount to payee’s attorney’s fees.
These cases show that, although statutory authority in Wisconsin does not allow retroactive changes in child support, a child support payee may, under the right circumstances, accomplish a similar result in the context of a contempt of court motion when the payer has failed to comply with the requirement to notify the payee of a change of employment or substantial change in income. These cases also make it incumbent upon the child support payer to strictly comply with the requirement to notify the Child Support Agency and/or the payee of any change of employment and change of income.