|
COURT OF APPEALS DECISION DATED AND FILED December 18, 2012 Diane M. Fremgen Clerk of Court of Appeals |
|
NOTICE |
|
|
|
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. |
|
APPEAL from orders of the circuit court for Milwaukee County: elsa c. lamelas, Judge. Affirmed and cause remanded with directions.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Frederick C. Hooker, Jr., pro se,
appeals from orders modifying his periods of physical placement with his minor
children, holding him in contempt of court for failing to comply with prior
court orders, and requiring him to pay $2406.50 in attorney’s fees incurred by
Paula Nelson-Hooker in pursuit of the contempt finding.[1] We affirm the orders. We also conclude that Hooker’s appeal is
frivolous and that he must pay the costs and attorney’s fees that Nelson-Hooker
incurred to respond to his claims in this court. We remand to the circuit court for a
determination of the amount of those costs and fees.
BACKGROUND
¶2 Hooker
and Nelson-Hooker were divorced on March 31, 2004. The judgment of divorce entered on April 14,
2004, established their rights and responsibilities, including custody and
placement of the couple’s two children.[2] Litigation, however, continued. In an order dated June 19, 2006, a family
court commissioner discussed the post-judgment proceedings:
[t]here have been at least twelve (12) court hearings on post judgment matters since the divorce (thirty-two if one counts the hearings in the related domestic abuse/felony and misdemeanor cases....)
The immediate question has to be – how can any one family’s troubles necessitate so much attention and so many resources with so little progress? The unfortunate answer is that all it apparently takes is one manipulative, bad-intentioned litigant. The common denominator in this series of destructive, ongoing conflicts is Frederick Hooker [J]r.’s unwillingness to do what he is supposed to. He refuses to take his responsibilities as a father and as a litigant seriously. He initiates repetitious and frivolous legal actions pursuing stale and baseless claims as if the legal process were intended for his private recreation.
¶3 We
need not describe the three years of disputes and litigation in this matter that
followed the court commissioner’s remarks and that are reflected in the very
substantial record presently before us.
We rejoin the parties on June 25, 2009, when the circuit court entered
an order entitled “Final Order Modifying Placement.”[3] As pertinent here, the order permitted Hooker
periods of unsupervised placement one afternoon each week and, commencing in
January 2010, overnight placement with the children on alternating weekends
from 3:30 p.m. on Friday until 5:00 p.m. on Sunday. The order also directed that “neither party
shall physically discipline the children.”
¶4 Less
than one month after the circuit court entered the June 2009 order, Hooker
moved to hold Nelson-Hooker in contempt for violating it. After a hearing, the circuit court entered an
order in November 2009 finding Hooker’s claims frivolous, declaring that he had
overlitigated the case, and requiring him to pay Nelson-Hooker’s trial counsel $612.50
in attorney’s fees.
¶5 In
February 2010, Nelson-Hooker filed the motion that underlies this appeal. She sought to modify physical placement of
the children by terminating Hooker’s weekend and overnight placement because
Hooker left the children home alone during his weekday placement. She also sought to hold Hooker in contempt of
court on three grounds: (1) he owed
$22,522.24 in delinquent child support; (2) he had violated the court order of
June 2009 barring him from physically disciplining the children; and (3) he had
violated the court order of November 2009 requiring him to pay her attorney’s
fees. The circuit court held a hearing
to address her claims.
¶6 Jessica
Ramstad, a social worker employed by the Bureau of Milwaukee Child Welfare,
testified about investigating allegations that Hooker had mistreated his
sons. When she interviewed the boys,
they confirmed that Hooker left them home alone during visits and struck them
with a belt.
¶7 Hooker
was the only other witness who testified at the hearing. He admitted that he gave each child “one slap
of the belt” on a single occasion, but he maintained that he did so before the
circuit court entered the order forbidding physical discipline. He explained that the punishment was
appropriate because the children were taunting him, saying that he could not
spank them without going to jail. Hooker
also acknowledged leaving the children home alone, although he maintained he
did so for only brief periods.
¶8 Hooker
then admitted that he “ha[d] not picked up [the] children from school [on] any
Fridays in 2010 at 3:30.” He claimed
that his copy of the June 25, 2009 order, which he did not produce, directs him
to meet his children on Fridays at 5:00 p.m. at the Glendale police
department. He acknowledged that he had
not contacted Nelson-Hooker’s attorney or the guardian ad litem to resolve any uncertainty about where and when he should
meet the children, and instead he had forfeited all of his weekend placement in
2010.
¶9 Hooker
next conceded that he owed $22,450.89 in unpaid child support and that he had
not paid any of the attorney’s fees owed to Nelson-Hooker’s trial counsel. He said that he was “in a hole” financially
and that he had hoped to obtain a stay of the November 2009 order requiring him
to pay opposing counsel’s fees.
¶10 The
circuit court reviewed the testimony in detail and made findings that Hooker
was “less than credible” and “not reliable.”
After noting that more than two years had passed since entry of the
initial order for physical placement, the circuit court concluded that Nelson-Hooker
had established a substantial change in circumstances by showing that Hooker
hit his children, left them home alone, and unreasonably failed to exercise any
weekend placement. The circuit court
determined that modification of the placement order was in the best interests
of the children and terminated Hooker’s weekend and overnight placement.
¶11 The
circuit court also determined that Hooker failed to offer an adequate
explanation for neglecting to pay his court-ordered financial obligations. The circuit court therefore found Hooker in
contempt of court. Upon that finding,
the circuit court ordered Hooker to pay $2406.50 in attorney’s fees that
Nelson-Hooker incurred pursuing enforcement of the earlier court orders.
¶12 Hooker
appeals. He challenges the circuit
court’s order modifying placement and the order requiring him to pay fees of
$2406.50 to Nelson-Hooker’s trial counsel.[4]
DISCUSSION
¶13 Nelson-Hooker
contends that Hooker’s appeal is frivolous.
See Wis. Stat. Rule 809.25(3) (2009-10).[5] Whether an appeal is frivolous is a question
of law. Howell v. Denomie, 2005
WI 81, ¶9, 282 Wis. 2d 130, 698 N.W.2d 621. An appeal is frivolous if “the ‘party ... knew,
or should have known, that the appeal ... [had no] 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.’”
Id. (citation omitted, one set of ellipses added, brackets in Howell). We apply an objective standard: “what should a reasonable person in the
position of this pro se litigant know
or have known about the facts and the law relating to the arguments
presented.” Holz v. Busy Bees Contracting,
Inc., 223 Wis. 2d 598, 608, 589 N.W.2d 633 (Ct. App. 1998). We may require Hooker to pay sanctions for
pursuing a frivolous appeal only if we conclude that his entire appeal is
frivolous. See Baumeister v. Automated Prods., Inc., 2004 WI 148, ¶26, 277
Wis. 2d 21, 690 N.W.2d 1. Before we
may conclude that Hooker’s entire appeal is frivolous, we must determine that each
of his arguments is frivolous. See id., ¶27 With these principles in mind, we turn to
Hooker’s contentions on appeal.
¶14 We
first examine Hooker’s challenge to the decision modifying physical placement
of the children. Hooker contends that
the circuit court erred by applying the wrong statutory standard when
considering the issue, and then erred again by wrongly concluding that
Nelson-Hooker satisfied that standard.
¶15 The
decision to modify an order for physical placement of a child rests in the
circuit court’s discretion. Hughes v. Hughes, 223 Wis. 2d 111, 119, 588
N.W.2d 346 (Ct. App. 1998). Where,
however, a party contends that the circuit court erroneously exercised its
discretion by applying an incorrect legal standard, we review that contention de novo.
Id. at 120.
¶16 Motions to modify child placement orders are
governed by Wis. Stat. § 767.451. See
Stumpner
v. Cutting, 2010 WI App 65, ¶4, 324 Wis. 2d 820, 783 N.W.2d
874. The timing of a motion seeking a
substantial modification dictates which of two statutory standards is
applicable.[6]
A motion for a substantial modification
filed within two years of an order entered under Wis. Stat. § 767.41 is governed by
§ 767.451(1)(a), which describes a higher standard than that used to
address a motion seeking a substantial modification filed at other times. See § 767.451(1)(a)-(b). Hooker contends that the circuit court should
have considered Nelson-Hooker’s motion to modify placement under the higher
standard described in § 767.451(1)(a).
He believes that this standard is applicable because Nelson-Hooker filed
her motion in 2010, within two years after the circuit court entered the June 2009
placement modification order. He is
wrong.
¶17 Wisconsin Stat. § 767.451(1) is
clear and unambiguous in its application to this case. Section 767.451(1)(a) expressly governs
motions seeking child placement modifications within two years of orders
“entered under [Wis. Stat. §] 767.41.”[7] Placement modification orders, however, are
not entered under § 767.41. Rather,
placement modification orders are entered under § 767.451. See
Stumpner,
324 Wis. 2d 820, ¶4. Accordingly,
the 2009 placement modification order did not establish the start of a two-year
period for purposes of § 767.451(1)(a).
Hooker offers his suggestion to the contrary without suggesting any
reasonable basis for his position in law or equity. The argument is frivolous. See Howell, 282 Wis. 2d 130, ¶9.
¶18 The
standard governing modification of child placement applicable here is set forth
in Wis. Stat. § 767.451(1)(b). That provision permits modification of a
custody or placement order if the circuit court finds that “[t]he modification
is in the best interest of the child” and “[t]here has been a substantial
change of circumstances since the entry of the last order affecting” custody or
placement. Id. We turn to Hooker’s claim that Nelson-Hooker
failed to satisfy this standard.
¶19 Whether
Nelson-Hooker established a substantial change in circumstances under Wis. Stat. § 767.451(1)(b) is a
question of law that we decide de novo. See Pero v. Lucas, 2006 WI App 112, ¶23, 293 Wis. 2d 781,
718 N.W.2d 184.[8] When conducting our review, however, “we must
‘give weight to a [circuit] court’s decision’ because the determination is
‘heavily dependent upon an interpretation and analysis of underlying facts.’” Id.
(citation and one set of quotation marks omitted).
¶20 Hooker
asserts that “nothing in the record or evidence indicated that circumstances
had changed substantially” since entry of the June 2009 order. A substantial change of circumstances “requires
that the facts on which the prior order was based differ from the present
facts, and the difference is enough to justify the court’s considering whether
to modify the order.” Licary
v. Licary, 168 Wis. 2d 686, 692, 484 N.W.2d 371 (Ct. App.
1992). Here, the circuit court found
that circumstances changed substantially when Hooker hit his children with a
belt, left them unsupervised during visits, and unreasonably failed to exercise
periods of placement.
¶21 Hooker
contends that hitting his children did not constitute a substantial change of
circumstances because the beatings took place before the circuit court entered the
June 2009 order barring physical discipline. The circuit court, however, did not believe
Hooker’s testimony about the timing of the beatings, finding instead that his
testimony “ma[d]e little sense.... He
says the children were laughing at him because he was ... prohibited from
hitting them; and yet he says this incident took place before the court’s order
prohibiting hitting.” The circuit court
was entitled to reject Hooker’s illogical assertion that he hit his children
because they were taunting him about a prohibition that had not yet been
imposed. “Sorting out the conflicts and
determining what actually occurred is uniquely the province of the [circuit]
court.” State v. Owens, 148
Wis. 2d 922, 930, 436 N.W.2d 869 (1989).
¶22 Hooker
next contends that leaving his children alone in his apartment is not a
substantial change of circumstances because he did so only for short
periods. The circuit court, however, did
not consider this factor in a vacuum. Hooker
fails to offer any legal reason why flouting a circuit court order barring
corporal punishment together with absenting himself from visits while leaving
his small children home alone was not a substantial enough change in
circumstances as to warrant consideration of a placement modification,
particularly when coupled with an additional finding that he unreasonably
failed to exercise his weekend placement.
Indeed, unreasonable failure to exercise periods of placement alone
constitutes grounds to modify a physical placement order at any time. See
Wis. Stat. § 767.451(2m). Hooker’s argument that “nothing” demonstrates
a substantial change of circumstances thus lacks a reasonable basis and is
frivolous. See Howell, 282 Wis. 2d 130, ¶9.
¶23 Hooker
also challenges the circuit court’s conclusion that modifying placement based
on the substantial change of circumstances shown in this case served the best
interests of his children. We affirm a
circuit court’s discretionary determination to modify placement when the
circuit court applies the correct legal standard to the facts of record and
reaches a reasonable result. Hughes, 223
Wis. 2d at 120. We search the
record for reasons to sustain the circuit court’s exercise of discretion. Id.
¶24 The
factors that a circuit court must consider when initially establishing physical
placement are listed in Wis. Stat. § 767.41(5). In proceedings to modify periods of physical
placement, the circuit court must consider those factors in § 767.41(5)
that are relevant to the child. See Wis.
Stat. § 767.451(5m); see also
Landwehr
v. Landwehr, 2006 WI 64, ¶¶3, 31, 291 Wis. 2d 49, 715 N.W.2d 180. We assess the circuit court’s conclusion by examining
whether the circuit court properly considered and weighed appropriate factors. See Pero,
293 Wis. 2d 781, ¶23.
¶25 Here,
the circuit court viewed with concern Hooker’s decision to leave his young
children alone in his apartment. The
circuit court emphasized that the building also housed a restaurant, increasing
the risk of a fire in the home. This
troubled the circuit court because the children were very young and were “left
to manipulate a deadbolt” in an apartment without a telephone land line. See
Wis. Stat. § 767.41(5)(am)6.
(court to consider age and developmental needs of children).
¶26 The
circuit court explicitly found Ramstad credible and took into account her
testimony regarding Hooker’s supervision of the children. See Wis. Stat. § 767.41(5)(am)15.
(court to consider reports of appropriate professionals). Ramstad told the circuit court that the
children “knew that they were alone, and that they had no access to means of
help.” See § 767.41(5)(am)5. (court to consider children’s adjustment
to, inter alia, the home and the
community). In the circuit court’s view,
Ramstad’s testimony supported the conclusion that leaving the children alone in
an apartment contravened their best interests.
Relatedly, the circuit court took into account the fears of
Nelson-Hooker and the guardian ad litem
that Hooker’s questionable level of supervision posed a risk to the children
that would be magnified during any future overnight visits. See
§ 767.41(5)(am)1.-2. (court to consider wishes of parent, and wishes of
children as expressed by the guardian ad
litem).
¶27 The
circuit court was disturbed that Hooker hit his children. See
Wis. Stat. § 767.41(5)(am)3.
(court to consider parent’s interaction with children). The circuit court did not credit Hooker’s
testimony that he struck the children because they were taunting him, but the
circuit court concluded that this rationale for a beating, even if genuine, was
simply inadequate to justify the actions.
See id.
¶28 Finally,
the circuit court considered Hooker’s decision to forego all periods of weekend
placement in 2010 rather than contact Nelson-Hooker about the meeting time and
place for commencing those placement periods.
See Wis. Stat. § 767.41(5)(am)4. (court to consider amount
and quality of time that parent spent with children in the past). The circuit court found that Hooker was
“feigning ignorance” of the placement schedule described in the June 2009
placement order, and the circuit court deemed his conduct a “determined lack of
cooperation.” In the circuit court’s
view, Hooker’s decision not to make inquiries about his weekend placement and
to forfeit it instead was “part of the tussle, part of this tug of war in which
[Hooker] has shown a continuing inclination to participate.” See
§ 767.41(5)(am)10.-11. (court to consider level of cooperation between the
parents and whether each parent can support the other parent’s relationship
with the children).
¶29 The
circuit court found that the evidence was sufficient to overcome any
presumption that leaving the placement order unchanged would serve the best
interests of Hooker’s children. Cf. Landwehr, 291 Wis. 2d 49, ¶12
(noting a rebuttable presumption in favor of the status quo in some
circumstances when a parent seeks a change in child custody or placement). The circuit court determined that the credible
evidence required terminating Hooker’s weekend and overnight placement in the
best interests of the children.
¶30 Hooker
seeks to challenge the circuit court’s decision by pointing to his own
testimony and arguing that the circuit court erroneously assessed the
evidence. We need not summarize his
allegations.[9] His approach cannot prevail, because the
circuit court did not believe him. “‘[I]t
is well settled that the weight of the testimony and the credibility of the
witnesses are matters peculiarly within the province of the [circuit] court
acting as the trier of fact.’” State
v. Young, 2009 WI App 22, ¶17, 316 Wis. 2d 114, 762 N.W.2d 736
(citation omitted). We defer to “the
superior opportunity of the [circuit] court to observe the demeanor of
witnesses and to gauge the persuasiveness of their testimony.” See Kleinstick
v. Daleiden, 71 Wis. 2d 432, 442, 238 N.W.2d 714 (1976). An appeal premised on a bare request to
reweigh witness credibility is frivolous.
See Lessor v. Wangelin, 221
Wis. 2d 659, 669, 586 N.W.2d 1 (Ct. App. 1998).
¶31 The
circuit court thoughtfully and appropriately exercised its discretion in
modifying placement, and therefore we may not disturb the decision. See
Hartung
v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981) (our inquiry
is whether the circuit court exercised discretion, not whether the circuit
court could have exercised discretion differently). Because Hooker’s position is nothing more
than a request that we reassess the credibility of the witnesses, his challenge
to the circuit court’s exercise of discretion lacks legal or factual support. His claim is frivolous. See
Lessor,
221 Wis. 2d at 669.
¶32 Hooker
states in his opening brief that this appeal includes “a constitutional
challenge [to] the reduction of the boys’ placement with their father.” Hooker does not discuss or develop this
constitutional challenge further, and we will not develop it for him. See
Techworks,
LLC v. Wille, 2009 WI App 101, ¶27, 318 Wis. 2d 488, 770 N.W.2d
727. Because Hooker offers his
constitutional claim without including any support or analysis, we conclude
that the claim is frivolous. See Howell, 282 Wis. 2d 130, ¶9.
¶33 We
turn to Hooker’s contention that the circuit court erred by awarding
Nelson-Hooker her attorney’s fees. He
first asserts that the circuit court did not give reasons for the award. To the contrary, the circuit court required
Hooker to pay opposing counsel’s fees because it found Hooker in contempt of
court for failing to pay both his child support and the attorney’s fees
previously ordered. The circuit court
may order a party found in contempt of court to pay the attorney’s fees
incurred by an opposing party who pursued the finding. Benn v. Benn, 230 Wis. 2d 301,
315, 602 N.W.2d 65 (Ct. App. 1999). Accordingly, Hooker’s contention that the
circuit court did not give reasons for its decision lacks any legal or factual support. His claim is frivolous. See
Howell,
282 Wis. 2d 130, ¶9.
¶34 Next,
Hooker asserts that the amount of attorney’s fees awarded was
unreasonable. The assertion is
completely conclusory. Indeed, Hooker
fails to acknowledge the applicable standard for assessing attorney’s fees
following a finding of contempt. See Benn,
203 Wis. 2d at 315 (stating that, upon a finding of contempt, a circuit
court may impose a monetary payment sufficient to compensate a party who
suffered loss, including attorney’s fees incurred, as a result of the
contempt). Instead, he directs our
attention to Ondrasek v. Ondrasek, 126 Wis. 2d 469, 483, 377 N.W.2d 190
(Ct. App. 1985), and Thorpe v. Thorpe, 108 Wis. 2d 189,
198, 321 N.W.2d 237 (1982). Neither case
discusses an award of attorney’s fees pursuant to a finding of contempt, and no
good-faith argument exists that these cases provide any meaningful guidance on
that issue. The contention that Ondrasek
and Thorpe
bar the fee award here is frivolous. See Howell,
282 Wis. 2d 130, ¶9.
¶35 Hooker
suggests in his reply brief that the circuit court failed to make necessary
findings about Nelson-Hooker’s need for a contribution towards her attorney’s
fees or about his ability to pay. “[T]here
is no requirement that the circuit court make findings in regard to need and
ability to pay before exercising its remedial contempt powers.” Benn, 230 Wis. 2d at 315. Hooker’s argument to the contrary is
frivolous.[10]
See
Howell, 282 Wis. 2d 130,
¶9.
¶36 Each
of Hooker’s arguments lacks a reasonable basis in law and fact, and Hooker
presents no good-faith basis for his positions.
We therefore conclude that his entire appeal is frivolous. See
Baumeister,
277 Wis. 2d 21, ¶27. Although Hooker
is self-represented, that status does not confer a license to ignore the legal
principles that govern a dispute nor does it permit a litigant to burden this
court and the opposing party with meritless arguments. See
Waushara
Cnty. v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d 16 (1992). Accordingly, we affirm the orders he
challenges, and we remand this matter to the circuit court with directions to
determine the amounts that Hooker must pay in costs and attorney’s fees as a
sanction for pursuing a frivolous appeal.
By
the Court.—Orders affirmed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The circuit court entered two orders on the same day, one directing Hooker to pay $2406.50 in attorney’s fees and the other holding him in contempt and resolving issues related to physical placement of his children. Hooker’s notice of appeal refers to an “order” of the circuit court, but the text of the notice of appeal reflects his intent to challenge components of both orders. The notice of appeal brings both orders before this court. See Rhyner v. Sauk Cnty., 118 Wis. 2d 324, 326, 348 N.W.2d 588 (Ct. App. 1984).
[2] At the time of the divorce, Hooker and Nelson-Hooker had one eighteen-month-old son and Nelson-Hooker was pregnant with the couple’s second son, later born in August 2004. A circuit court may establish custody and placement of a child before the child’s birth. See Steinbach v. Gustafson, 177 Wis. 2d 178, 188-89, 502 N.W.2d 156 (Ct. App. 1993). The circuit court did so in this case.
[3] The June 25, 2009 order did not disturb the order, in place since 2005, awarding Nelson-Hooker sole legal custody of the children.
[4] Hooker’s appellate brief does not include any argument challenging the circuit court’s determination that Hooker was in contempt of court.
[5] All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[6] Wisconsin Stat. § 767.451 provides, in pertinent part:
(1) Substantial Modifications. (a) Within 2 years after final judgment. Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the final judgment determining legal custody or physical placement is entered under s. 767.41, unless a party seeking the modification ... shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:
....
2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.
(b) After 2-year period. 1. [A] court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:
a. The modification is in the best interest of the child.
b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
[7] As relevant here, an order determining periods of physical placement is entered under Wis. Stat. § 767.41 when a divorce judgment is rendered. See § 767.41(1)(b) (requiring circuit court to enter an order providing for custody and placement of minor children when rendering a judgment of divorce). As stated earlier in this opinion, the circuit court entered a judgment of divorce in this matter on April 14, 2004.
[8] Several of the cases we discuss in the body of this opinion examine provisions in Wis. Stat. § 767.24 and/or Wis. Stat. § 767.325. In 2005, the legislature renumbered those statutes as Wis. Stat. § 767.41 and Wis. Stat. § 767.451, respectively. See 2005 Wis. Act 443, §§ 94‑98, 160-63. A note published with the Act provides that “unless expressly noted, this bill makes no substantive changes in the statutory provisions treated by the bill. Substantive changes in the bill are identified in notes to the provisions substantively affected.” See id., prefatory note. Accordingly, we do not indicate whether the cases we cite in this opinion discuss the current or the predecessor statutes because such clarification is unnecessary in light of the provisions and propositions at issue.
[9] Hooker’s description of his testimony includes details that do not appear in the record.
[10] We normally do not consider issues raised for the first time in a reply brief because the opposing party has no chance to respond. See Northern States Power Co. v. National Gas Co., 2000 WI App 30, ¶21 n.6, 232 Wis. 2d 541, 606 N.W.2d 613. In this case, we chose to consider the argument because it lacks any legal or factual basis and therefore requires no response.