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COURT OF APPEALS DECISION DATED AND RELEASED June 6, 1996 |
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. 95-0211
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
MYRA LEVINE
(HEILPRIN),
Petitioner-Respondent,
v.
RICHARD HEILPRIN,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Dane County: JACK
F. AULIK, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Dykman, J.
PER
CURIAM. Richard Heilprin appeals from orders providing for the
execution of liens on a home he owned, and on his pension. The liens benefitted his former wife, Myra
Levine, and resulted from his failure to pay a $61,000 maintenance arrearage to
her. We affirm both orders. We also conclude that the appeal is
frivolous, and grant Levine's motion for costs and reasonable attorney's fees.
The parties divorced in
1985. In May 1994, in an order
addressing the arrearage and other maintenance questions, the trial court
ordered that Levine "shall have a lien against the Heilprin Law Offices'
profit sharing plan and a lien upon the respondent's residence at 6001 N.
Highland, Madison, Wisconsin as security for payment of the [arrearage], and
the court shall sign any further documents necessary to effectuate said
lien." Heilprin appealed from this
order, asserting, among other things, that the court erred by imposing a lien
on his pension. He did not raise an
issue concerning a lien on his real estate.
We eventually reversed that part of the trial court's order holding him
in contempt, but otherwise affirmed. Levine
v. Heilprin, No. 94-1327, unpublished slip op. (Wis. Ct. App. Sept. 14,
1995). Meanwhile, Levine's counsel
learned that a sheriff's sale of the real estate was scheduled for October 18,
1994. On October 5, he asked the court
to sign orders acknowledging the liens ordered in May, and providing for
execution of them against funds payable to Heilprin for the sheriff's sale, and
against the pension fund if the federal tax lien against it was lifted. Counsel for Heilprin received service of the
proposed orders on October 6. He
immediately objected to them and asked for a hearing. The court scheduled a telephone conference for October 12 to hear
the objections.
At that hearing,
Heilprin objected to the request for the orders because it was made by letter
and not motion, and because he had insufficient notice of Levine's arguments in
support of the order, which he heard for the first time at the hearing. The trial court gave him an additional five
days to submit any arguments he intended to make, and Heilprin did submit
additional material. Levine chose not
to. On October 18, the trial court
issued a decision rejecting Heilprin's objections and signed the lien
orders.
On appeal, Heilprin
argues that the trial court violated his due process rights by signing the lien
orders when he received insufficient notice of the motion, and by denying him
an evidentiary hearing. We disagree. The lien orders were nothing more than what
the trial court promised to sign in its May order. Heilprin cites no authority for the proposition that a formal
motion, with statutory notice and supporting papers, was necessary in such
circumstances. The liens were imposed
by the May order, and were no longer a disputed issue in the trial court. In that sense, signing the orders for
execution on the liens was merely a ministerial act of the court, and Heilprin
had no right to relitigate the matter at an evidentiary hearing. Even if he did, the argument is meritless
because he never attempted to raise any evidentiary issues. The sole issue he raised was one of
law—whether a stay imposed in Heilprin's first appeal, which then remained
pending, deprived the trial court of authority to order execution on the liens.
Additionally, Heilprin
cannot reasonably argue that the court denied him an opportunity to fully
present his objections. When counsel
was served with the proposed orders, the trial court scheduled a hearing six
days later on his objections and allowed five additional days to present
further argument. Heilprin has not
explained why, under those circumstances, he was constitutionally deprived of
notice and opportunity. As noted, he
presented only one straightforward and easily-resolved legal issue.[1]
Heilprin next argues
that the trial court erred by granting liens on the home and the pension. Those issues were resolved by the trial
court's May order, and this appeal was not timely as to that order. In any event, the pension issue was resolved
in Heilprin's first appeal, which was timely from the May order, and he could
have challenged the lien on his home as well.
He is not now entitled to a second appeal on those issues that were or
could have been decided in his first appeal.
Heilprin finally argues
that Levine and her counsel unlawfully and improperly interfered in settlement
negotiations in a separate litigation between Heilprin and a third party. The argument is made completely outside the
record in this appeal, and we therefore disregard it. Jenkins v. Sabourin, 104 Wis.2d 309, 313-14, 311
N.W.2d 600, 603 (1981).
Levine has moved for
costs and attorney's fees on the grounds that the appeal is frivolous. We may find an appeal frivolous if the party
or the party's attorney knew, or should have known, that the appeal lacked any
reasonable basis in law or equity and could not be supported by a good faith
argument for an extension, modification or reversal of existing law. Rule
809.25(3)(c)2, Stats. Applying that standard to all the arguments
Heilprin raises on appeal results in a finding of frivolousness. None have any basis in law and both Heilprin
and his attorney should have known that to be the case by applying fundamental
principles of law. On remittitur,
Levine may apply to the trial court for a determination of reasonable
attorney's fees on appeal.
By the Court.—Orders
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.