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COURT OF APPEALS
DECISION
DATED AND FILED
January 27, 2010
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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In re the marriage of:
Thomas W. Moore,
Petitioner-Appellant,
v.
Kathleen M. Kerlee, p/k/a Kathleen M. Ball (Moore),
Respondent-Respondent.
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APPEAL
from an order of the circuit court for Waukesha County: Donald
J. Hassin jr., Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Snyder, J.
¶1 PER CURIAM. Thomas W. Moore challenges the
circuit court’s determination that he accumulated a child support arrearage to
his former spouse, Kathleen M. Kerlee. Moore argues that the
parties’ April 2005 stipulation eliminated his child support obligation. We conclude that the stipulation was
ambiguous, and we agree with the circuit court that the parties did not intend
to eliminate Moore’s
monthly child support obligation. We
affirm the circuit court order.
¶2 At the time of the parties’ 2002 divorce, the circuit court
ordered Moore
to pay $900 per month in child support to Kerlee via wage assignment. In April 2005, the parties filed a
pre-printed form captioned “Stipulation and Order to Amend Judgment for
Support/Maintenance/Custody/Placement.” In the stipulation, the parties
acknowledged Moore’s
bi-weekly child support obligation.
Paragraph 1.b. of the stipulation stated: “Child support shall be changed as
follows: Thomas W. Moore shall pay $0;
Thomas Moore will pay [Kerlee] directly as soon as this is amended.” In paragraph 1.c.2., the stipulation stated:
“Thomas W. Moore will pay me directly.
Both parties go above and beyond for the children and its never been a
forced issue for Thomas W. Moore to pay child support.” Paragraph 2, family support, stated: “Thomas W. Moore shall pay $0, paying
[Kerlee] directly.” The circuit court
approved the parties’ stipulation without a hearing.
¶3 In September 2007, Kerlee moved the circuit court to modify
child support to an amount based upon the percentage guidelines and to obtain
payment of a child support arrearage. As
grounds, Kerlee alleged that Moore’s
income had increased substantially, but he ceased paying the $900 in monthly
child support based on his view that Kerlee had to repay him sums he provided
to her for a house downpayment.
¶4 Kerlee testified that the original child support order was
for $900 per month. When she was
purchasing a house, Moore
offered to provide $25,000 toward the downpayment. In exchange, Moore wanted to end his wage assignment for
child support, and Kerlee agreed.
However, Kerlee did not agree with Moore’s
determination to reduce his child support payments to $600 per month to repay
the $25,000, but she acquiesced because she believed that Moore would seek to modify placement if she
did not accept the reduced payments, and she could not afford to litigate such
a motion. Thereafter, Moore also paid Kerlee’s credit card debt and
reduced his child support payment to $300 per month. In 2006, Moore made a $900 mortgage payment for Kerlee
after she injured herself and could not work.
Moore and Kerlee did not have any agreement to treat the various
payments from Moore
as loans or as a basis to reduce child support.
Kerlee would not have taken the funds from Moore had she known he expected
repayment. Kerlee believed the payments
were gifts.
¶5 Moore
testified that that he provided Kerlee with $25,000 for a downpayment on a
house and $6850 to cover her credit card debt.
Having provided these sums, Moore
reduced his $900 monthly child support payment to $600 to recoup the
funds. According to Moore, in exchange for the $25,000, Kerlee
agreed to terminate the wage assignment for child support. Moore
later agreed to pay off Kerlee’s credit card debt, and Kerlee agreed to a
further reduction in child support to $300 per month. In June 2006, Moore made a $904 mortgage payment for
Kerlee. In late 2006, Moore resumed paying $600 in child support
per month. Moore denied threatening that he would move
to modify placement if Kerlee did not repay him.
¶6 The circuit court found that the parties agreed in 2005 to
terminate the wage assignment. However,
child support was the entitlement of the children, and was not reducible to
repay Moore. The court found that the downpayment, the
credit card debt payment and the mortgage payment were gifts, not legal offsets
against Moore’s
child support obligation. The court
criticized Moore’s
use of his child support obligation as a debt collection device. The court found that Moore was $16,500 in arrears in child support
and ordered him to pay $250 per month toward the arrearage. In addition, Moore would pay future support of $1100 per
month.
¶7 Moore sought reconsideration
arguing that the circuit court had overlooked the true meaning of the 2005
stipulation which, in Moore’s
view, eliminated not only the wage assignment, but his entire child support
obligation. The court found that the
2005 stipulation was inconsistent: the
stipulation states that Moore
would pay Kerlee directly, but also expresses that amount as “$0.” In the court’s view, the only reasonable
interpretation of the stipulation was that the $900 monthly child support
payments were to be paid directly to Kerlee rather than paid via wage
assignment. Both parties testified that
they had agreed to terminate the wage assignment at the time they executed the
stipulation. The court denied Moore’s reconsideration
request.
¶8 On appeal, Moore
argues that the 2005 stipulation unambiguously relieved him of his $900 per
month child support obligation. The
construction of a stipulation presents a question of law, which we decide
independently of the circuit court. Duhame
v. Duhame, 154 Wis.
2d 258, 262, 453 N.W.2d 149 (Ct. App. 1989).
Whether the stipulation is ambiguous is also a question of law. See Rosplock v. Rosplock, 217 Wis. 2d 22, 30, 577
N.W.2d 32 (Ct. App. 1998). Language is
ambiguous if it is reasonably susceptible of more than one meaning. See Duhame, 154 Wis. 2d at 266. Where the language of the stipulation is
ambiguous, the trial court may consider extrinsic evidence to ascertain the
parties’ intent. See id.
¶9 We agree with the circuit court that the 2005 stipulation is
ambiguous. The stipulation is internally
inconsistent: the stipulation states
that Moore shall pay Kerlee $0, but also states
that Moore
shall pay Kerlee directly. Because the
stipulation is reasonably susceptible of more than one meaning relating to the
child support obligation and/or the cessation of the wage assignment, the
parties’ intent was relevant.
¶10 After hearing testimony, the circuit court found that Moore’s miscellaneous payments were not made for the
benefit of the children, and Moore’s
attempt to recover these amounts by reducing child support was in the nature of
debt collection, an inappropriate treatment of the child support
obligation. More importantly, the court
found that the payments were gifts, as Kerlee testified, and that the parties
had agreed to terminate the wage assignment, nothing more. These findings are not clearly erroneous, and
they were based upon a credibility determination which was the circuit court’s
to make as the fact finder. See Wallen v. Wallen, 139 Wis. 2d 217, 224, 407
N.W.2d 293 (Ct. App. 1987).
¶11 The findings regarding the parties’ intent inform the
construction of the stipulation, and the findings dovetail with the principles
governing child support. Parents must support their children. Rottscheit v. Dumler, 2003 WI 62,
¶31, 262 Wis.
2d 292, 664 N.W.2d 525. “[C]hild support
is paid to benefit the child, not the custodial parent. The custodial parent receives support
payments in trust to be used for the child’s welfare.” J.J.G. v. L.H., 149 Wis. 2d 349, 358, 441
N.W.2d 273 (Ct. App. 1989). Moore’s payments were
gifts, and the stipulation relieved him of the wage assignment but not the
child support obligation.
¶12 Moore
seems to suggest that Judge Hassin, who presided over Kerlee’s child support
modification and arrearage motion, was bound by the 2005 stipulation approved
by Judge Mawdsley. We disagree. Judge Hassin had the authority to construe
the 2005 stipulation. Cf. Starke
v. Village of Pewaukee, 85 Wis. 2d
272, 283, 270 N.W.2d 219 (1978) (successor judge may modify or reverse
predecessor’s rulings); Dietrich v. Elliott, 190 Wis. 2d 816 823-24, 528
N.W.2d 17 (Ct. App. 1995). “[T]he power
to modify a judicial ruling belongs to the court, not to any individual
judge.” Dietrich, 190
Wis. 2d at
822. The circuit court docket entries do
not indicate that Judge Mawdsley held a hearing or otherwise took evidence
before approving the 2005 stipulation.
Therefore, Judge Hassin properly construed the stipulation as part of
the subsequent child support proceedings.
See Starke, 85 Wis.
2d at 283.
¶13 Kerlee
contends that this appeal is frivolous.
We do not agree. The issues on
appeal are not the types of issues that Moore
knew or should have known were “without any reasonable basis in law or
equity….” Wis. Stat. Rule 809.25(3)(c)2. (2007-08).
¶14 The appellant’s brief contains the required certification by
counsel, Kate Neugent, that the appendix contains “portions of the record
essential to an understanding of the issues raised, including oral or written
rulings or decisions showing the trial court’s reasoning regarding those
issues.” Wis. Stat. Rule 809.19(2)(b).
Attorney Neugent contested whether Moore
had a child support obligation after the 2005 stipulation and whether the
circuit court erred in construing the 2005 stipulation. Attorney Neugent, however, did not include in
the appendix copies of the relevant portion of the transcripts of the motion
hearings at which these issues were addressed.
These transcripts were essential to understand the issues Attorney
Neugent raised, and it is self-evident that the appendix, at minimum, should
have included the relevant portions of these transcripts. Consequently, we conclude that Attorney
Neugent filed a false certification.
¶15 The purpose of an appendix certification is to foster increased
compliance with Wis. Stat. Rule
809.19(2)(a) and thereby improve the quality of appendices filed with appellate
courts. See State v. Bons, 2007
WI App 124, ¶21, 301 Wis. 2d 227, 731 N.W.2d 367. There, we held that “[f]iling a false
certification with this court is a serious infraction not only of the rule, but
it also violates SCR 20:3:3(a) (2006).
This rule provides, ‘A lawyer shall not knowingly: (1) make a false statement of fact or law to
a tribunal.’” Bons, 301 Wis. 2d 227,
¶24. By attesting that counsel complied
with the appendix rules when counsel did not, counsel made such a false
statement. This omission places an
unwarranted burden on the court and “‘is grounds for imposition of a penalty or
costs on a party or counsel, or other action as the court considers
appropriate. Wis. Stat. § 809.83(2) (2005-06).’” Bons, 301 Wis.
2d 227, ¶25. Accordingly, we sanction
Attorney Neugent and direct that she pay $150 to the clerk of this court within
thirty days of the release of this opinion.
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.