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COURT OF APPEALS DECISION DATED AND RELEASED APRIL 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(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. 95-3161-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
ex rel. STATE OF
ARIZONA
and MICHELLE R. D.,
Petitioners-Respondents,
v.
BRIAN L. NOWAK,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Oconto County:
LARRY L. JESKE, Judge. Affirmed
in part; reversed in part and cause remanded with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Brian Nowak appeals two orders in this
child support proceeding.[1] Nowak raises two issues: (1) whether the trial court had exclusive
jurisdiction to proceed on a Uniform Support Petition when the State of Arizona
had previously entered judgment and ordered child support, and (2) whether the
trial court had the power to modify the Arizona child support order.
Because the State does
not dispute Nowak's contention that the Arizona judgment was void for lack of
notice and due process, and because Nowak was properly served in the Oconto
County proceedings, we conclude: (1)
The trial court properly obtained personal and subject matter jurisdiction to
determine paternity and set child support, and (2) the trial court erroneously
recognized and modified the void Arizona judgment. We therefore affirm in part, reverse in part and remand to the
trial court to determine paternity, set support, and other proceedings
consistent with this opinion.
The underlying facts are
undisputed. Nowak lives in
Wisconsin. Kristina D. and her mother,
Michelle R. D., live in Maricopa County, Arizona. In September 1989, the Superior Court for Maricopa County entered
a default paternity judgment against Nowak, finding him to be the father of
Kristina D. and ordering him to pay $207 per month child support commencing
October 1, 1989.
In May 1991, the Arizona
judgment was registered in Oconto County, Wisconsin. In October 1991, upon Nowak's motion and under § 767.65(40), Stats., 1991-92, the Oconto County
Circuit Court vacated the registration upon its finding that Nowak was deprived
of notice and due process with respect to the Arizona proceeding. The order vacating the registration of the
Arizona judgment
found that the State of Arizona failed to
provide notice to respondent, Brian Nowak, of a proceeding to set aside an
order of the Arizona Court of dismissal from their inactive calendar concerning
support. As a result of such failure
respondent was not given due process to respond to State of Arizona's motion to
reopen the foreign case.
IT
IS THEREFORE ORDERED that respondent's motion to vacate the Registration of the
Support Order from the State of Arizona is hereby granted.[2]
In June 1994, the State
of Arizona and Michelle, Kristina's mother, initiated this action in Oconto
County by filing a uniform support petition under ch. 769, Stats. (effective April 30, 1994). The petition noted that the 1989 Arizona
paternity and support order "WAS VACATED IN WI ON 10/1/91" and
requested that the court (a) establish paternity, (b) establish child support
and (c) enter a judgment for past support.
Nowak moved to dismiss
the petition for lack of jurisdiction.
The court determined that it had personal jurisdiction over Nowak
because he was served personally with the summons and petition in this state. It concluded that it had subject matter
jurisdiction under § 769.305, Stats.,
to issue, enforce or modify a support order or determine parentage or order
compliance with a support order.
However, notwithstanding
the 1991 order vacating the registration of the 1989 Arizona judgment, the
trial court also concluded that it was required to recognize Arizona's judgment
under §§ 769.205(4) and 769.207(1)(a), Stats. It further
concluded that under § 769.315, Stats.,
Nowak was not allowed to raise paternity as a defense. The trial court entered a second order that
Nowak participate in a child support program and modified the amount of support
set by Arizona. Nowak appeals these two
orders.
Nowak argues that the
trial court is without jurisdiction to proceed on the Uniform Support Petition
because Arizona had entered a 1989 default judgment on these same issues and
ordered child support. Nowak relies on
§ 769.205(4), Stats., which
provides: "A tribunal of this state shall recognize the continuing,
exclusive jurisdiction of a tribunal of another state that has issued a child
support order under a law substantially similar to this chapter." Nowak argues that the trial court is
powerless to modify the Arizona support order, see § 769.611(1), Stats., and may enforce the Arizona
support order, but only if registered. See
§ 769.601, Stats.[3] We disagree.
Nowak's argument
requires statutory interpretation, which presents questions of law that we
review de novo. See State v.
Michels, 141 Wis.2d 81, 87, 414 N.W.2d 311, 313 (Ct. App. 1987). The primary source of interpretation is the
common and approved usage of the statutory language itself. Hartlaub v. Coachmen Indus.,
143 Wis.2d 791, 797, 422 N.W.2d 869, 871 (Ct. App. 1988). Statutes are to be given a reasonable
interpretation and not one that will work an absurd result. In re J.A.L., 162 Wis.2d 940,
963, 471 N.W.2d 493, 502 (1991). A
cardinal rule is to favor a construction that will fulfill the purpose of the
statute over a construction that defeats the manifest object of the act. In re Estate of Halsted, 116
Wis.2d 23, 29, 341 N.W.2d 389, 392 (1983).
Section 769.205(4), Stats., presupposes the entry of a valid judgment or
order. Orders or "[j]udgments
entered contrary to due process are void." Neylan v. Vorwald, 121 Wis.2d 481, 488, 360 N.W.2d
537, 540 (Ct. App. 1984) (citations omitted).
A void judgment or order is something very different from a valid
one. Id. at 496, 360
N.W.2d at 544. "[I]t is legally
ineffective[,] may be collaterally attacked at any time in any proceeding,
state or federal [and] it should be treated as legally ineffective in the
subsequent proceeding. Even the party
which obtained the void judgment may collaterally attack it." Id. A void judgment cannot be validated by consent, ratification,
waiver or estoppel. Id.
at 495, 360 N.W.2d at 544. This
principle is "of ancient and universal application." Id. We conclude that the term "order" in § 769.205(4) must
be interpreted to mean a "valid order" to avoid an absurd result.
In
his appellant brief, Nowak states:
"It is the position of the appellant that the trial court's order
vacating the registration relating to the [Arizona] 1989 child support order
remains in effect." We agree. Indeed, because Nowak has previously taken
the position that the Arizona judgment was void, he cannot now be heard to
claim otherwise. A deliberate choice of
trial strategy is binding, and appellate error based upon such strategy will
not be considered by a reviewing court, "even if it backfires
...." State v. McDonald,
50 Wis.2d 534, 538, 184 N.W.2d 886, 888 (1971). A party may not assume one position during litigation and later
argue that the court's acceptance of that position was error. In re H.N.T., 125 Wis.2d 242,
253 n.7, 371 N.W.2d 395, 400-01 n.7 (Ct. App. 1985).
Upon Nowak's 1991
motion, the trial court applied then effective § 767.65(40), Stats., 1991-92, and vacated
registration of the Arizona judgment.
The order vacating the Arizona registration of judgment was never
appealed and remains in effect. Neither
party disputes that the Arizona judgment was entered without notice and
contrary to due process, rendering it void.[4] An order issued contrary to due process is
not an order issued "under a law substantially similar to this
chapter." Section 769.205(4), Stats.
Because the Arizona judgment is void, it is not recognized under
§ 769.205(4). We need not give
full faith and credit to the void judgment of another state. Arizona's invalid judgment does not preclude
Wisconsin from establishing paternity and support.
The trial court
correctly determined that it had personal jurisdiction because Nowak was
personally served, see § 769.201(1), Stats.,
and subject matter jurisdiction. See
§ 769.305(2), Stats.; cf.
In re H.N.T., 125 Wis.2d at 244-45, 371 N.W.2d at 396-97 (the constitution
and statutes define and limit a court's jurisdiction). Because the 1989 Arizona judgment is a
nullity, the trial court may proceed on the uniform support petition to
determine paternity and support. See
§ 769.305, Stats.[5]
By the Court.—Orders
affirmed in part; reversed in part and cause remanded with directions. No costs on appeal.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[2] The Honorable John M. Wiebusch rendered the 1991 order vacating registration of the 1989 Arizona judgment.
[3] The State, through Oconto County corporation counsel, agrees that § 769.611(2), Stats., requires registration of a support order from another state before the trial court can consider modification, and that "the trial court could not modify the State of Arizona child support order because the court did not comply with the requirements of Sec. 769.611 Wis Stat." It states that it is prepared to follow whatever procedure we require.