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COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 19, 1995 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0186-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
KELLY A. SVOMA,
Plaintiff-Respondent,
v.
RICK POSPISIL and
BONNIE POSPISIL,
Respondents-Appellants.
APPEAL from an order of
the circuit court for Rusk County:
FREDERICK A. HENDERSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Rick and Bonnie Pospisil appeal a trial
court postjudgment order that denied their second motion to modify a default
judgment.[1] The Pospisils have not appealed an earlier
trial court order denying their first motion to modify the default
judgment. In the default judgment, the
trial court ordered the Pospisils to pay Bonnie's sister, Kelly Svoma, child
support for their daughter, who has left the Pospisils' home and now lives with
Svoma, without a custody or guardianship order. The Pospisils argue that (1) Svoma had no standing to seek child
support and that (2) the child support should terminate at their daughter's
eighteenth birthday. We reject these
arguments and affirm the trial court's order.
Neither of the
Pospisils' arguments have merit. First,
they have waived their right to challenge Svoma's trial court standing. Although the Pospisils challenged Svoma's
trial court standing in their first postjudgment motion, they never appealed
the trial court order denying that motion.
Their notice of appeal sought to review only the trial court order
denying their second postjudgment motion; it did not identify the earlier trial
court order as part of the appeal.
Litigants' notices of appeal must identify the final orders that they
seek to appeal. See State
v. Ascencio, 92 Wis.2d 822, 825, 285 N.W.2d 910, 912 (Ct. App. 1979); see
also Rule 809.10(1)(a), Stats.
Although the Pospisils' second postjudgment motion also raised the
standing issue, this did not allow them to raise that issue in an appeal from
the second postjudgment order. They
forever lost the standing issue by not appealing the first postjudgment
order. See Ver Hagen v.
Gibbons, 55 Wis.2d 21, 25-26, 197 N.W.2d 752, 754-55 (1972).
Second, Ver Hagen
also bars the Pospisils from raising the child support issue. The Pospisils did not formally raise this
issue in their first postjudgment motion; their written motion raised only the
standing issue. Nonetheless, they
orally alluded to the child support issue near the hearing's end, after the
trial court had refused to consider the standing issue. This was sufficient to place the issue
before the trial court for purposes of the Ver Hagen
doctrine. When the trial court refused
to consider the standing and child support issues on the ground that it found
no mistake or excusable neglect, the Pospisils had an obligation to appeal the
trial court's first postjudgment order in order to preserve their right to
appellate review. Under the Ver
Hagen doctrine, they lost their appellate rights by foregoing an appeal
of the first postjudgment order, filing a second postjudgment motion, and then
appealing the trial court's second postjudgment order denying that motion.
In any event, regardless
of Ver Hagen, the Pospisils have no legal basis to terminate
their daughter's child support at her eighteenth birthday. The trial court rejected the Pospisils'
argument on the ground that the legislature had preempted courts on the issue
and deprived them of their discretion.
We therefore examine the applicable statute. Section 767.25(4), Stats.,
expressly provides that child support orders must continue until the child
reaches the age of nineteen, as long as she is pursuing accredited instruction
leading to a high school diploma. This
provision is clear, specific, and unambiguous on the child support question; it
therefore supersedes all other, more general child emancipation laws in the
specific realm of child support. See,
e.g., Estate of Cavanaugh, 191 Wis.2d 244, 262, 528 N.W.2d
492, 499 (Ct. App. 1995). Inasmuch as
the Pospisils' daughter is still pursuing high school studies, the trial court
correctly ruled that it had a statutory obligation to continue the child
support until her nineteenth birthday.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.