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COURT OF APPEALS DECISION DATED AND RELEASED July 9, 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. 95-2083
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
URBAN A. HUBERT, JR.,
Plaintiff-Appellant,
v.
SYLVIA C. HAMBY,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Outagamie County:
DENNIS C. LUEBKE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Urban Hubert appeals a judgment dismissing his
replevin action against Sylvia Hamby, his former girlfriend and the mother of
his child. Hamby, supported by a bill
of sale, persuaded the trial court that Hubert gave her his personal property
for her to sell and use the proceeds to support their child. Hubert argues that this finding is not
supported by the evidence and that the court improperly excluded parol evidence
challenging the bill of sale. He also
argues that Hamby should have been sanctioned for discovery abuse, the trial
court should have allowed Hubert to amend his pleadings after the trial and
that the court's failure to hold a pretrial conference was reversible
error. We reject these arguments and
affirm the judgment.
The record supports the
trial court's finding that Hubert gave Hamby the tools, sporting and camping
equipment, stereo and other personal property, without any agreement that Hamby
would return the property upon demand.
The trial court is the sole arbiter of the witnesses' credibility and
this court must accept its findings of fact if any reasonable view of the
evidence would support the findings. See
Cogswell v. Robertshaw Controls Co., 87 Wis.2d 243, 249, 274
N.W.2d 647, 650 (1979). The attorney
who drafted the bill of sale and a contemporaneous power of attorney testified
that these documents were executed to "facilitate providing for her and
possibly [their] child in the event [Hubert was] incarcerated ...." Hamby stated that the property was given in
recognition of Hubert's obligation to support the child and that the property
could be liquidated and the proceeds applied to the child support
obligation. This testimony, if believed
by the trial court, is sufficient to support its finding.
We need not determine
whether the trial court properly applied the parol evidence rule when it
excluded evidence challenging the bill of sale. The bill of sale stated that the transaction was for valuable
consideration. The trial court
disallowed testimony tending to establish lack of consideration. This testimony was given, however, in an
offer of proof. The trial court stated
that its finding that Hubert gave Hamby the property would not have changed had
it admitted proffered testimony.
Therefore, Hubert has not established any prejudice from the trial
court's refusal to admit the proffered testimony into evidence. See § 805.18(2), Stats.
The trial court properly
exercised its discretion when it refused to impose sanctions against Hamby for
discovery abuse. Excusing a party for
not complying with a discovery order constitutes a reasonable exercise of
discretion under some circumstances. See
Estate of Glass, 85 Wis.2d 126, 146, 270 N.W.2d 386, 396
(1978). Here, Hamby appeared without
counsel during some of the alleged discovery abuse. A lawsuit by a former boyfriend who is not in prison takes on the
appearance of harassment, justifying additional caution by the trial court. Much of the information sought was not
central to the trial court's resolution of this case. The court facilitated discovery by other methods rather than
imposing a severe sanction such as default judgment. Under these circumstances, the trial court's refusal to impose
discovery sanctions was well within its discretionary authority.
The court properly
refused to allow Hubert to amend the pleadings after the trial. Hubert sought to amend the pleadings to
allege a breach of contract or unjust enrichment arising out of the finding
that Hubert gave Hamby the property as a form of child support. Hamby brought a separate action for child
support. Hubert characterizes the
second action as a breach of contract and alternatively argues that Hamby was
unjustly enriched by receiving both child support and his personal property.[1] A child support obligation is not satisfied
by a one-time payment of goods that, after sale, would not support a child for
any appreciable time. The record does
not support Hubert's assertion that this initial payment was designed to
satisfy all future child support responsibilities. In addition, the amount of money that could be generated from
selling this property, when compared with the cost of raising a child, cannot
be reasonably described as an unjust enrichment. Amending the pleadings to conform with the evidence would have
provided Hubert no relief.
Finally, Hubert argues
that the trial court erred by refusing to hold a pretrial conference. The only potential prejudice to Hubert from
the absence of a pretrial conference involves his failure to timely amend the
complaint to allege alternative grounds for relief. Because we conclude Hubert is not entitled to relief even if the
grounds had been timely asserted, Hubert was not prejudiced by a lack of a
pretrial conference.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.