State Ex Rel. Jeske v. Jeske

LOUIS J. CECI, J.

(dissenting). I dissent for the reason that I do not believe that the state is either authorized or required to represent a non-AFDC recipient for the modification of a child support order. My disagreement with the majority’s analysis of sec. 46.25(7), Stats., commences with its determination that it is ambiguous. Section 46.25(7) provides for state representation to any individual "to establish or enforce a support or maintenance obligation.” This section delineates those services for which representation will be provided and unambiguously excludes representation for modification. Because the legislature specifically defined those services for which it would provide representation, the doctrine of expressio unius est exclusio alterius should apply as an indication that the services not included within the express enumeration were intended to be excluded. See, e.g., State ex rel. Harris v. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974).

Additionally, I disagree with the majority’s position that the fact that the state provides services for the modification of support obligations to public assistance recipients pursuant to sec. 767.32(4), Stats., requires the provision of such services to nonreci-pients as a condition of federal aid. In this regard, I note that sec. 46.25(1), indicates that the provisions of its child support program are to be fashioned in accordance with federal statutes and regulations. However, the federal assistance law set forth under 42 *378U.S.C. sec. 654(6)(A) does not, as a condition for the receipt of federal assistance, require a state to provide representation to non-AFDC recipients for the modification of child support awards. Rather, sec. 654(6)(A) provides that the state must provide "child support collection” services established under the state’s child support plan to individuals who are not eligible for such aid. Neither the provisions of 42 U.S.C. sec. 654 which set forth that which must be contained within a state’s child support plan, nor the provisions of sec. 46.25, which articulates Wisconsin’s plan consistent with the federal law, requires representation for modification of support awards. While sec. 767.32(4), provides for state representation for support award modification, this provision is not within the plan articulated under sec. 46.25 which triggers the equality of services provisions of sec. 654(6).

Interestingly, the majority has failed to cite to any authority which supports its position that the provision of services for the modification of a child support award is included within the provisions of 42 U.S.C. sec. 654(6). In fact, the only case which I have been able to locate which interprets sec. 654(6) to include modification services is a decision of the Minnesota Court of Appeals in Krogstad v. Krogstad, 388 N.W.2d 376, 384 (Minn. Ct. App. 1986), which decided this issue without supporting analysis.

Finally, the chronology of the enactment of the Wisconsin statutes relating to child support services reinforces an interpretation of sec. 46.25(7) which does not include modification services to non-AFDC recipients. Specifically, sec. 46.25(7) was enacted in 1979, pursuant to ch. 221, sec. 362, laws of 1979, whereas sec. 247.32(4), Stats, (renumbered as sec. 767.32(4)), was adopted in 1977 under ch. 418, sec. 747s, laws of *3791977. Accordingly, when sec. 46.25(7) was adopted with language referring to the establishment and enforcement of child support obligations, there existed in place a scheme under sec. 767.32 which segregated "revisions” of judgments from provisions related to the establishment and enforcement of child support. It is a well-established proposition that the legislature is presumed to enact legislation with "full knowledge and awareness of existing statutes.” State ex rel. McDonald v. Douglas County, 100 Wis. 2d 569, 578, 302 N.W.2d 462 (1981). Had the legislature intended to include modification of child support awards within the child support services provided to non-public assistance recipients under sec. 46.25(7), surely the legislature would have specifically used the language of "revision” or "modification,” as it had elsewhere.

Accordingly, I dissent for the reason that I believe the majority has broadened the scope of the state’s authority or duty to represent non-AFDC recipients beyond the scope of both state and federal law. It should be noted that the fiscal ramifications of this unwarranted tinkering are unknown.