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COURT OF APPEALS DECISION DATED AND RELEASED MARCH 18, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-3292-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
SALLY R. DIX,
Petitioner-Respondent,
v.
JOHN PATRICK STYER,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Dunn County:
DONNA J. MUZA, Judge. Affirmed.
Before LaRocque, Myse
and Mangerson, JJ.
PER CURIAM. John Styer appeals a judgment granting his
former wife a domestic abuse injunction.[1] He argues that the evidence is insufficient
to support the injunction and that the trial court erroneously limited
cross-examination. We affirm the
judgment.
After an evidentiary
hearing, the trial court granted a domestic abuse injunction against Styer for
a period of two years. Section
813.12(4), Stats., provides that
the court may grant an injunction if all of the following occur:
1. The petitioner files a petition alleging the elements set forth
under sub. (5)(a).
2. The petitioner serves upon the respondent a copy of the petition and
notice of the time for hearing ....
3. After hearing, the judge or family court
commissioner finds reasonable grounds to believe that the respondent has
engaged in, or based upon prior conduct of the petitioner and the respondent
may engage in, domestic abuse of the petitioner.
The court shall consider
the potential danger posed to the petitioner and the pattern of abusive conduct
of the respondent but "may not base his or her decision solely on the
length of time ... since the relationship ended." Id. Domestic abuse is defined as the
following conduct or threat to engage in the following conduct: intentional
infliction of physical pain, physical injury or illness; the intentional
impairment of physical condition; or a violation of § 940.225(1), (2) or (3), Stats., (sexual assault). Section 813.12(1)(a), Stats.
Sally Dix filed a
petition requesting the injunction and alleging that she feared for her safety
based upon Styer's past violence. It
stated that he pled guilty to two felonies, false imprisonment and bail
jumping, based upon incidents committed against her. Styer was served with the notice of hearing and petition.
At the November 4, 1996,
injunction hearing, without objection, the trial court took judicial notice of
Styer's two 1993 criminal convictions for false imprisonment and bail jumping,
as well as judicial notice of the parties' divorce proceeding. Dix testified that the false imprisonment
charges arose out of an incident in which Styer waited in her vehicle until she
came out of work. He told her that he
had a gun and that she would do what he told her to do. Dix testified that the bail jumping charges
were brought when Styer was out on bail on the false imprisonment charges. He contacted Dix's sister and told her that
he had hired somebody to do severe harm to Dix and her family if she did not
come back to be his wife.
Dix testified that since
the divorce, Styer violated the custody decree by transporting the children
himself rather than having another family member do it. Dix also testified that on October 13, 1996,
Styer brought the children to her home, came into her home and stayed for
forty-five minutes, despite her requests that he leave. Dix further testified that because of a ch.
48, Stats., proceeding involving
her children and Styer, she is "concerned that [Styer is] upset about
these ... allegations. And I'm
concerned that he's going to take it out on me and my children, but more
specifically today for me." She
also testified that within the last six months, Styer has indicated that
several things wrong in his life are her fault. Based upon his history, she perceived this to be a threat.
Styer denied that he
blamed Dix for several things wrong in his life. He also testified that he may have spent time at her house when
returning the children, but that he did not recall being asked to leave. The trial court found that there were reasonable
grounds to believe that Styer has engaged or based on his prior conduct might
engage in domestic abuse of Dix. The
court granted the injunction. Styer
appeals.
We reject Styer's
argument that the evidence is insufficient to support a domestic abuse
injunction. This issue requires the
application of a set of facts to a statutory standard, a question of law we
review de novo. See Kania
v. Airborne Freight Corp., 99 Wis.2d 746, 758-59, 300 N.W.2d 63, 68
(1981). Although the trial court made
no specific factual findings, we may assume that the court's findings would
have been consistent with its decision to grant the injunction. See Sohns v. Jensen, 11
Wis.2d 449, 453, 105 N.W.2d 818, 820 (1960).
The trial court, not the appellate court, assesses the weight and
credibility of the testimony. Section
805.17(2), Stats.
Dix's testimony
discloses four incidents that support the injunction: (1) the false
imprisonment conviction; (2) the bail jumping conviction; (3) Styer's remaining
at Dix's home for forty-five minutes despite her requests that he leave; and
(4) his recent statements that several things wrong in his life are Dix's
fault.
The first two incidents
constitute domestic abuse in the form of threats to inflict physical
injury. See
§ 813.12(1)(a)4, Stats. The trial court could reasonably infer that
the second two incidents indicate a continuing pattern of manipulation and
intimidation, demonstrating potential danger posed to Dix. Cf. State v. Friday,
147 Wis.2d 359, 370-71, 434 N.W.2d 85, 89 (1989) ("It is not within the
province of ... any appellate court to choose not to accept an inference drawn
by a factfinder when the inference drawn is a reasonable one."). Based on Dix's testimony, the trial court
was entitled to find "reasonable grounds to believe that [Styer] has
engaged in ... domestic abuse" of Dix.
Section 813.12(4)3, Stats. This determination supports the injunction.
Next, we reject Styer's
claim that the trial court erroneously limited his cross-examination of
Dix. Styer complains that the court
sustained objection to the following question:
"And he's ... not acted violently towards you since then?"
A lack of violent acts
is not necessarily a defense under § 813.12, Stats.,
because a "threat" to inflict physical pain or injury also
constitutes domestic abuse. Section
813.12(1)(a)4, Stats. Second, testimony that Styer did not act
violently at certain times does not necessarily lead to the inference that he
did not act violently at other times.
Third, Dix had
previously testified on cross-examination that the "last time that Pat
physically acted violently towards me was during the times that he was charged
with his felonies ... [a]pproximately two and a half years ago." Therefore, because the information sought by
further cross-examination was already before the court, the court's ruling did
not prejudice Styer. See §
901.03(1), Stats. (error may not
be predicated upon an evidentiary ruling unless a substantial right of the
party is affected). The record does not
support Styer's claim of reversible error.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.