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§ 948.22, Nonsupport — Modification of Support Payments – Factors: Incarceration

State v. Terry L. Dumler, 2003 WI 62, affirming summary order
For Dumler: Todd G. Smith


¶ 1.… The central issue before this court is whether the circuit court erroneously exercised its discretion in refusing to reduce Dumler’s child support payments in light of Dumler’s incarceration and resulting change in income. Although we find it appropriate for a court to consider incarceration when reviewing a request for modification, we find that the fact of incarceration by itself neither mandates nor prevents modification. Incarceration is one factor that should be considered, but the determination should be made on a case-by-case basis, looking at the totality of the relevant circumstances. We conclude that under the circumstances presented in this case, the circuit court properly exercised its discretion under Wis. Stat. § 767.32 (1999-2000) in finding that the facts in this case did not constitute a substantial change in circumstances sufficient to warrant modification.

Dumler is a roofer. His support order is $543 per month. His prison wages are $45 per month, after deductions for court fines. He’s serving a three year sentence, and absent support reduction he’ll have a support arrearage of $25,000 when released. What factors convinced the court to keep Dumler in an arrearage slough so deep he’ll never get out? Well, the court pays lip service to certain irrefutable platitudes: a support obligor shouldn’t have incarceration rewarded with reduced obligation, ¶30; parents are duty-bound to support their children, ¶31; public policy stresses the importance of child support, ¶32. All true enough, but equally applicable to all cases. Indeed, these considerations lead to nothing more than another incontestable conclusion drawn by the court: incarceration doesn’t automatically support reduction in support. ¶34. (“Incontestable,” because Dumler doesn’t seem to argue otherwise, nor does the dissent, ¶50.) Turning to the specific facts, the court acknowledges that $25,000 – the arrearage upon release – “is a great deal of money,” but not so much so that payment over time would be unreasonable. ¶36. Dumler’s incarceration won’t “prohibit his reentry into the workforce.” ¶44. Moreover, at the time of his request for support modification, Dumler had little more than one year to serve, leading the court to suggest “that a longer period of incarceration may well tip the balance in favor of modification and make the refusal to modify payments an erroneous exercise of discretion on the part of the circuit court.” ¶46 and id., n. 12. These are all pretty tepid reasons for upholding the refusal to reduce support – which isn’t to say that the court plainly means to rubber-stamp refusals to modify; to the contrary, that the court’s affirmance is so labored suggests an outer boundary and not a laissez passer to uncharted territory.


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