COURT OF APPEALS DECISION DATED AND FILED May 30, 2012 Diane M. Fremgen Clerk of Court of Appeals |
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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 from an order of the circuit court for Milwaukee County: Bonnie L. Gordon, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
¶1 PER CURIAM. Martin Hying appeals pro se a post-divorce
remedial contempt order that was entered against him due to his repeated
violations of previous court orders. He
challenges the order on several grounds.
We reject his arguments and
affirm the order.
¶2 Martin
and Kimberly Hying were divorced in November 2007. They have one child, age two and
one-half at the time of the divorce. Since the dissolution of their marriage, the
issues of their child’s placement and custody have been reviewed as provided by
the parties’ marital settlement agreement, which was incorporated into the judgment
of divorce. The circuit court entered a
written order modifying the child’s placement and custody on February 22, 2010
(hereafter “placement order”).[1]
¶3 On
March 5, 2010, the circuit court held a hearing on an allegation that Martin
was in contempt of the court’s placement order.
The court concluded that Martin had violated the order because he took
the child to a doctor when it was not an emergency.[2] Accordingly, the court entered a written order
on June 18, 2010, requiring Martin to pay Kimberly’s attorney fees for bringing
the contempt motion as well as the guardian ad litem’s fees for appearing at
the hearing.
¶4 On
June 18, 2010, the circuit court held another hearing on allegations that
Martin was in contempt of court.
Pursuant to a stipulation between the parties, the court entered a
written order on July 8, 2010, adjourning the contempt motions against Martin for
ninety days, with the understanding that they would be dismissed if there were
no further violations. The court also
entered a separate written order that same day, addressing Martin and
Kimberly’s access to the child’s therapy records, the terms of the child’s
placement, and the requirement that Martin pay the fees he owed to the guardian
ad litem.
¶5 On
September 7, 2010, the circuit court held yet another hearing on allegations
that Martin was in contempt of court. The
court continued the matter until December 15, 2010, at which time both parties
testified. After hearing testimony from
the parties, reviewing relevant statutes and cases, and considering the attorneys’
proposed findings of fact and conclusions of law, the court issued an oral
decision on February 4, 2011, finding Martin in contempt of court. It then entered a written order on March 30,
2011.
¶6 In
its written order finding Martin in contempt, the circuit court cited the
following behavior which violated previous court orders: (1) taking the child to the dentist without
Kimberly’s approval; (2) enrolling the child in soccer without Kimberly’s
approval; (3) attending activities for the child (e.g., dance dress rehearsals, swim lessons) that were not open to
the public; (4) giving the child baths immediately before her transition to
Kimberly; (5) failing to call Kimberly five minutes before returning the child;
(6) failing to allow Kimberly and the child to leave a public event before
leaving himself; and (7) failing to pay Kimberly’s attorney and the guardian ad
litem fees as ordered by the court.[3]
¶7 The
circuit court made two other determinations of note in its written order. First, it concluded that Martin had engaged
in overtrial by refusing to comply with previous court orders. Second, it found that Martin’s continuous,
willful, and intentional disregard of the placement order required the court to
make limited modifications to ensure that the best interests of the child were
met.
¶8 Based
upon these determinations, the circuit court ordered Martin to pay both
Kimberly’s attorney and the guardian ad litem reasonable attorney fees
attributable to overtrial. It further
ordered that all of the placement transitions be arranged and facilitated by
Professional Services Group. Finally, it
ordered Martin to serve 150 days in the House of Corrections unless he purged
the contempt by paying the fees owed to the respective parties. Martin now appeals the March 30, 2011 order.[4]
¶9 On
appeal, Martin presents several challenges to the circuit court order.[5] He questions the court’s authority to act in
this case while the matter was under appeal.
He questions the court’s ability to impose the purge condition that it
did. He questions the court’s
determination of overtrial in the case.
Finally, he questions the court’s exercise of discretion in several instances.
¶10 Whether
the circuit court had authority to act in this case involves the interpretation
and application of statutes, which are questions of law that we review de
novo. See Hefty v. Strickhouser,
2008 WI 96, ¶27, 312 Wis. 2d 530, 752 N.W.2d 820.
¶11 Whether
the circuit court’s granting of a purge condition exceeded its authority is
also a question of law that we review de novo.
State ex rel. Larsen v. Larsen, 165 Wis. 2d 679, 682-83,
478 N.W.2d 18 (1992).
¶12 Whether
excessive litigation occurred resulting in overtrial is a mixed question of fact
and law. Zhang v. Yu, 2001 WI App 267, ¶11, 248 Wis. 2d
913, 637 N.W.2d 754. Whether excessive
litigation occurred is a question of fact, and the circuit court’s findings on
the matter will not be reversed unless they are clearly erroneous. Id.
Whether the facts as found constitute
unreasonably excessive litigation resulting in overtrial is a question of law. Id.
¶13 Finally,
discretionary decisions, are
reviewed for an erroneous exercise of that discretion. Madison Metro. Sch. Dist. v. Circuit Court
for Dane Cty., 2011 WI 72, ¶34, 336 Wis. 2d 95, 800 N.W.2d 442. We will affirm a court’s discretionary
decision if it “‘examined the relevant facts, applied a proper standard of law,
and using a demonstrated rational process, reached a conclusion which a
reasonable judge could reach.’” Id.
(citation omitted).
¶14 Martin
first contends that the circuit court erred when it conducted a hearing on a
matter under appeal. Martin notes that
the record in this case was transmitted to this court for resolution of appeal
No. 2010AP914. Accordingly, he argues
that the circuit court lacked authority to act in this case until that appeal
was resolved and the record was returned.
¶15 The
Wisconsin Statutes provide circuit courts with authority to act in matters
under appeal in several instances, including when it comes to the enforcement
of its orders and holding those in contempt for failing to comply. For example, Wis.
Stat. § 808.07 (2009-10)[6]
provides that “[a]n appeal does not stay the execution or enforcement of the
judgment or order appealed from except as provided in this section or otherwise
expressly provided by law.” Moreover, Wis. Stat. § 808.075(4)(d)9.-10.
allows the court to enforce payment or financial obligations, including
attorney fees, in cases under Wis. Stat. Ch.
767 through the power of contempt. Given
these provisions, the circuit court had authority to exercise its jurisdiction
over Martin and enforce its previous orders.[7] Likewise, it had authority to enforce
Martin’s payment obligations to Kimberly’s attorney and the guardian ad litem
through its powers of contempt. Consequently,
we reject Martin’s first argument.
¶16 Martin
next contends that the circuit court erroneously exercised its discretion by
failing to review the authoritative record before rendering its decision. Again, Martin notes that the record in this
case was transmitted to this court for resolution of appeal No. 2010AP914.
¶17 Although
it is true that the circuit court did not possess the record at the time of its
decision, it does not follow that it erroneously exercised its discretion in
ruling without it. As noted in its
written order, the court was “provided with copies of all orders and
transcripts necessary for it to render a decision on issues before it.” The court then lists those orders and
transcripts that it relied upon.[8] Reviewing those documents, which are
contained in the record, we are satisfied that the court examined the relevant
facts necessary to reach its decision. Accordingly,
we find no erroneous exercise of discretion.
¶18 Martin
next contends that the circuit court erroneously determined that his actions
had resulted in overtrial. He notes that
he was represented by counsel and denies that he engaged in any unnecessary
litigation.
¶19 The overtrial doctrine may be invoked in family law cases when one party’s unreasonable approach to litigation causes the other party to incur extra and unnecessary fees. See Ondrasek v. Ondrasek, 126 Wis. 2d 469, 484, 377 N.W.2d 190 (Ct. App. 1985). Here, the circuit court’s determination of overtrial was grounded in Martin’s repeated violations of previous circuit court orders. These violations prompted multiple contempt motions and hearings, which caused both Kimberly’s attorney and the guardian ad litem to incur unnecessary fees. Based on the circuit court’s reasoning, which is supported by the record, we find no error in the determination of overtrial.
¶20 Martin
next contends that the circuit court erroneously exercised its discretion when
it failed to consider his ability to pay fees owed to Kimberly’s attorney and
the guardian ad litem when establishing the willful nature of the alleged
contempt. In support of his argument, he
cites his subsequent filing for Chapter 7 bankruptcy, which occurred a month
after the court’s oral decision.
¶21 At
the contempt hearing, the circuit court learned through Martin’s testimony and
financial statement that he made over $90,000 a year and had approximately
$57,119.32 in his 401K. Despite these
resources, Martin had not made any payments to Kimberly’s attorney or guardian
ad litem as required by previous court orders. The court listened to Martin’s excuses[9]
for not paying and found him not to be credible. Based upon this credibility determination[10] and
the information that was before the circuit court at the time of the hearing, we
find no erroneous exercise of discretion.
¶22 Martin
next contends that the circuit court erred when it imposed immediate
imprisonment as a remedial sanction unless he purged the contempt by paying the
fees owed to the respective parties.[11] Martin complains that the timing of the
court’s order, which was issued on a Friday afternoon, had the practical effect
of requiring him to spend three days in jail because he lacked access to a bank
or visitors until the following Monday.
¶23 Remedial
sanctions must be purgeable. See Diane
K.J. v. James L.J., 196 Wis. 2d 964, 969, 539 N.W.2d 703 (Ct. App.
1995). The purge conditions must be
feasible and within the contemptor’s power to meet. Larsen, 165 Wis. 2d at 685; State
ex rel. V.J.H. v. C.A.B., 163 Wis. 2d 833, 845, 472 N.W.2d 839
(Ct. App. 1991).
¶24 Reviewing
the circuit court’s purge condition in this case, we are satisfied that it met
these criteria. Although Martin may have
encountered some initial difficulties in arranging the required payments, the
feasibility of the court’s purge condition is reflected in the fact that Martin
successfully made the payments within several days of the order.
¶25 Martin
next contends that the circuit court erroneously exercised its discretion in
ordering that all of the transitions of the child be arranged and facilitated
by Professional Services Group. Martin
maintains that the order is unnecessary and questions the ability of
Professional Services Group to carry it out.
¶26 We
conclude that the circuit court properly exercised its discretion in modifying
the placement order in such a manner. The
modification was justified by Martin’s continuous, willful, and intentional
disregard of the previous placement order.
If Martin does not believe that the Professional Services Group can
carry out the court’s order, he can move the court to modify the order to allow
for a different organization or person to facilitate the placement exchanges.
¶27 On a final note, we take this opportunity to briefly address
the attacks that Martin makes on the circuit court and the other attorneys involved
in this case. In his brief, he accuses
them of various transgressions, including acting with prejudice and engaging in
felonious behavior. We caution Martin that he must stop these unfounded allegations. Disagreeing with an outcome is one thing but,
as we have remarked on other occasions, venom, arrogance, and ad hominem
attacks are inexcusable and will not be tolerated. See Strook v. Kedinger, 2009 WI App 31,
¶6, 316 Wis. 2d 548, 766 N.W.2d 219.[12]
By
the Court.—Order affirmed.
This opinion will not be
published. See Wis. Stat. Rule
809.23(1)(b)5.
[1] Martin appealed the placement order in appeal No. 2010AP914. On April 6, 2011, this court affirmed that order. See Hying v. Hying, No. 2010AP914, unpublished slip op. (WI App April 6, 2011).
[2] Paragraph 1 of the placement order provides Kimberly with exclusive decision making authority regarding the child’s healthcare.
[3] Paragraph 1 of the placement order provides Kimberly with exclusive decision making authority regarding the child’s healthcare. Paragraph 6 of the placement order provides Kimberly with exclusive decision making authority regarding the child’s activities. Paragraph 7 of the placement order provides that a non-placement parent may not attend a non-public activity of the child’s. Paragraph 10 of the placement order provides that Martin would not give the child baths immediately before her transition. The additional placement terms put in place by the July 8, 2010 order require that a parent who is delivering the child at the end of a placement period shall call the other parent five minutes before returning the child and that if the parties are attending a “public event” with the child, the parent with placement will leave the event with the child before the non-placement parent. Finally, three of the four prior orders directed Martin to pay attorney fees to either Kimberly’s attorney or the guardian ad litem or both.
[4] In his appendix, Martin includes multiple orders that occurred after he filed his notice of appeal. Because these orders are not properly before this court, we do not address any arguments relating to them.
[5] In presenting these challenges, Martin also makes arguments that he failed to raise in the circuit court. We decline to address those arguments in this opinion. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727 (issues not preserved generally will not be considered on appeal).
[6] All references to the Wisconsin Statutes are to the 2009-10 version.
[7] The fact that Martin was appealing one of the orders (the placement order) from which he was found in contempt does not alter our analysis. After all, a party may be held in contempt for failing to obey a court order even if that same order is clearly erroneous. Anderson v. Anderson, 82 Wis. 2d 115, 118-19, 261 N.W.2d 817 (1978).
[8] In its written order, the circuit court also lists the statutes and case law it relied upon. Additionally, it indicates that it reviewed historical data contained in the judgment roll, the parties’ testimony, and the attorneys’ proposed findings of fact and conclusion of law.
[9] Not all of Martin’s excuses were financial. Indeed, he admitted to the circuit court that he was not paying the guardian ad litem’s bills in part because, in his view, the guardian ad litem was engaging in “contemptuous behavior” for interfering with his access to the child’s therapy records. Of course, as Kimberly’s attorney explains in her brief, the guardian ad litem was not authorized to provide the child’s therapy records to Martin due to the July 8, 2010 court order denying their access to both parents.
[10] We defer to the circuit court’s credibility determinations. Wis. Stat. § 805.17(2).
[11] Martin did ask for 24 hours to make arrangements to have the payments made. The circuit court denied this request, stating, “you’ve had months; and quite frankly, with [the guardian ad litem’s] fees, years to comply with the Court’s order. You will now have to meet your purge while incarcerated.”
[12] To the extent we have not addressed an argument raised on appeal, the argument is deemed rejected. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) (“An appellate court is not a performing bear, required to dance to each and every tune played on an appeal.”).