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Hamilton v. Hamilton5/30/2003
REVIEW OF A DECISION OF THE COURT OF APPEALS 2002 WI App 89 Reported at: 253 Wis. 2d 805, 644 N.W.2d 243 (Ct. App. 2002-Published)
Oral Argument: November 6, 2002
REVIEW of a decision of the Court of Appeals. Affirmed.
. This is a review of a published decision of the court of appeals, which reversed a Dane County Circuit Court decision denying Walter Junior Hamilton's (Walter) motion to dismiss the State's action to collect unpaid child support.
. Walter was divorced in 1970 and ordered to pay child support for his two children. The child support judgment was amended in 1977. The State filed an independent action to collect Walter's child support arrearages in 2000, almost 30 years after the original judgment, more than 20 years after the amended judgment, and more than 15 years after Walter's youngest child reached the age of majority.
. Walter's case raises questions about the application of statutes of limitations to child support collection actions. The issue presented is whether the State, as an assignee of Walter's deceased former wife, filed a timely action to collect child support arrearages in 2000. Payments missed between 1970 and June 30, 1980, are not at issue. See infra , n.8. Thus, the specific questions of law are: (1) Does Wis. Stat. § 893.40 (2001-2002) apply to independent actions to collect child support not paid after July 1, 1980, and (2) if § 893.40 applies, when does the 20-year limitations period in the statute begin to run?
. We hold that Wis. Stat. § 893.40, which became effective on July 1, 1980, governs the time within which a party may bring an independent action to collect child support arrearages that accumulated after the statute's effective date. In addition, we conclude that, under the statute, an action brought to enforce a child support judgment must be commenced within 20 years of the date when the judgment is entered. The period of limitation begins to run upon entry of judgment, irrespective of whether any payment under that judgment has been missed.
. The last judgment ordering Walter to pay child support was entered on November 9, 1977. Consequently, the State had until November 9, 1997, to commence an action against Walter to collect arrears that accrued after July 1, 1980. Because the State's action to collect arrearages was not initiated until May 2000, it must be deemed untimely and barred under Wis. Stat. § 893.40.
I. BACKGROUND FACTS
. The relevant facts of this case are not in dispute. Walter and Elaine Hamilton were divorced in Grant County on June 22, 1970, after approximately five years of marriage. The divorce judgment required Walter to make payments to Elaine every two weeks: $10.00 as alimony and $20.00 for each of their two children as child support. By 1977 Walter was residing in Dane County. On November 9, 1977, the Dane County Circuit Court entered an order amending the judgment, pursuant to a stipulation by the parties. This order expunged all alimony arrearages and eliminated Walter's future obligation to pay alimony, but it revised Walter's child support payments to a fixed sum of $50.00, to be paid every two weeks until further ordered by the court. The 1977 order was the last court order regarding child support directed at Walter prior to the commencement of this action.
. The youngest Hamilton child reached the age of majority on April 4, 1985. From the date of the original divorce judgment in 1970 through April 1985, Walter failed to make a substantial number of child support payments.
. Elaine died on June 7, 1989. She did not file any enforcement actions to collect on Walter's child suppo
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