Marriage of Tyson v. Tyson
Marriage of Tyson v. Tyson
Opinion of the Court
This is an appeal from an order revising a divorce judgment by awarding maintenance of $59 per month. Because the divorce judgment waived maintenance, we conclude that sec. 767.32(1), Stats.,
Elizabeth and Keith Tyson were divorced in 1986, after a ten-year marriage. No children were born to the marriage. The trial court found that neither party was entitled to maintenance, and therefore awarded none.
We are thus required to interpret the effect of a divorce judgment which waives maintenance but designates a mortgage payment as "support." We conclude that the provision waiving maintenance controls. Section 767.32(1), Stats., unambiguously states that "a judgment which waives maintenance payments for either party shall not thereafter be revised or altered in that respect . . .." The trial court found that neither party was entitled to maintenance payments, and the judgment waived maintenance payments for both parties. In light of that finding, it would be inconsistent to
In addition, family support is a substitute for maintenance and child support. Corliss v. Corliss, 107 Wis. 2d 338, 348, 320 N.W.2d 219, 223 (Ct. App. 1982). There were significant federal income tax advantages to the payor of consolidated "family support" under Commissioner v. Lester, 366 U.S. 299 (1961). Legislative Council Note, 1977, Wis. Stat. Ann. sec. 767.261 (West 1981). Family support would provide the Tysons, a childless couple, no possible tax advantages that would not have also been available from maintenance.
We rejected a similar argument in Fessler v. Fessler, 147 Wis. 2d 1, 432 N.W.2d 103 (Ct. App. 1988). In Fes-sler, we examined a divorce judgment which terminated maintenance between the parties but also established periodic "support" payments. Id. at 5-7, 432 N.W.2d at 105-06. Relying on the language in the judgment, we held that the periodic payments could not be revised. Id. at 9, 432 N.W.2d at 106-07.
We conclude that the better rule is that divorce judgment provisions waiving maintenance take precedence over other provisions which arguably award or reserve maintenance payments. Knowledge of and compliance with this rule is uncomplicated, will lead to less litigation, and will provide certainty for divorcing couples and their attorneys. We thus reverse the trial court's order awarding maintenance and remand with instructions that the trial court dismiss Elizabeth's motion.
Section 767.32(1), Stats., provides, in part, that "a judgment which waives maintenance payments for either party shall not thereafter be revised or altered in that respect nor shall the provisions of a judgment with respect to a final division of property be subject to revision or modification."
The divorce judgment stated that "neither party is entitled to maintenance."
Keith also argued: (1) that the discharge of his debt in bankruptcy barred Elizabeth's claim for maintenance; and (2) that Elizabeth was estopped from bringing a motion to revise the judgment because she failed to meet her part of an obligation to pay a mortgage. In light of the disposition of this case, we need not reach these issues.
Section 767.261, Stats., provides, in part, that "[t]he court may make a financial order designated 'family support' as a substitute for child support orders under s. 767.25 and maintenance payments orders under s. 767.26." Family support orders may be modified under the "change of circumstances" doctrine. Legislative Council Note, 1977, Wis. Stat. Ann. sec. 767.261 (West 1981).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.