COURT OF APPEALS DECISION DATED AND RELEASED August 28, 1996 |
NOTICE |
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. |
Nos. 95-1456
95-3550
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In re the Marriage of:
CHRISTINA L.
RIEDLINGER,
Petitioner-Respondent,
v.
JOSEPH C. RIEDLINGER,
Respondent-Appellant.
APPEALS from a judgment
and an order of the circuit court for Kenosha County: BRUCE E. SCHROEDER, Judge.
Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. Joseph C. Riedlinger appeals from a judgment of
divorce and an order denying his request for the preparation of transcripts
without cost.[1] He argues that the custody and visitation
determination was a misuse of discretion, that the property division is unfair,
and that the trial court erred in determining that he was not indigent for the
purpose of obtaining transcripts. We
affirm the judgment and the order.
Both parties proceed pro
se in this appeal. Joseph's brief lacks
citation to the record and legal authorities.[2] The brief does not provide any guidance as
to what transpired in the more than twenty hearing dates over which the divorce
was tried. This court has reviewed the
record in an attempt to reconstruct the course of the proceedings and
presentation of evidence. Despite the
shortcomings of Joseph's brief, we have discerned several issues which we will
address.
The parties were married
in September 1984. An action for
divorce was filed in September 1989, when the parties' daughter was two years
old. Notably, because of protracted litigation
over custody, the judgment of divorce was not granted until March 2, 1995. The written judgment was entered on May 19,
1995.
Christina was awarded
sole legal custody and primary physical placement of the minor child. Joseph contends that custody should have
been awarded to him because he was the child's primary caregiver prior to the
parties' separation and while Christina traveled for business. He also suggests that it is eminently wiser
to award him custody because he is disabled and able to provide care when the
child would otherwise be with a day-care provider.
The discretion of a
trial court in making a custody and legal placement decision should not be
disturbed unless the trial court erroneously exercised its discretion with no
reasonable basis. See Bohms
v. Bohms, 144 Wis.2d 490, 496, 424 N.W.2d 408, 410 (1988). The exercise of discretion requires that the
trial court consider the facts of record in light of the applicable law to
reach a reasoned and reasonable decision.
See Hartung v. Hartung, 102 Wis.2d 58, 66, 306
N.W.2d 16, 20 (1981).
Joseph does not suggest
how the trial court erroneously exercised its discretion. He only expresses a disagreement with the
judgment of the court. We have reviewed
the transcript of the custody decision made on January 13, 1994.[3] The decision reflects a proper exercise of
discretion. The trial court considered
the positive and negative behaviors and influences of each parent. Contrary to Joseph's claim, the trial court
did not disregard the care and support Joseph provides to his daughter. It found that both parties were fit to be
the custodial parent. It reviewed the
testimony given by expert witnesses and expressed its reasons for rejecting
some of that testimony. In addition,
the court made supplemental findings indicating that the child's wishes and the
recommendation of the guardian ad litem were considered. No grounds exist to disturb the custody
determination.
Joseph contends that the
visitation schedule is unfair because he does not get July 4th visitation and
cannot pick up his daughter the night before a holiday. The trial court's decision made clear that
precise guidelines were needed to facilitate visitation because the parties had
demonstrated their inability to accommodate each other or work out agreeable
deviations to the visitation schedule.
The trial court was striving for consistency which would be easy for the
parties to follow. In light of the
trial court's concern that there be no deviation from its order, we cannot
conclude that the limits placed on visitation were unreasonable or a misuse of
discretion.
We review the property
division because Joseph asks that "all the financial belongings and
obligations in this case be reopened and reviewed including martial assets and
child support obligations." An
unequal division of property was made.
Christina was awarded the family residence, a time-share campsite, a
pop-up camper, two 1988 automobiles, a mutual fund account, and a pension
plan. Christina was also made
responsible for a bulk of the parties' debts, including payment of the $2391.18
balance of the guardian ad litem fees.
Joseph was awarded household furniture, personal belongings, guns and
tools in his possession, and two 1986 automobiles. He was ordered to pay an outstanding credit card debt.
The division of property
in a divorce is within the trial court's discretion, and we review for an
erroneous exercise of that discretion. Parrett
v. Parrett, 146 Wis.2d 830, 843, 432 N.W.2d 664, 669 (Ct. App.
1988). The trial court must begin with
the presumption that all marital property is to be divided equally between the
parties. See § 767.255(3), Stats.
However, the court may deviate from this equal division after
considering several statutory factors. Id. Those factors include the length of the
marriage, the property brought to the marriage by each party, and the
contribution of each party to the marriage, including economic and child care
services. Id.
The trial court
expressed several reasons as to why an unequal division of property was
justified. It noted that the marriage
had been very short. It found that
Christina had provided most of the economic contribution to the marriage while
both parties cared for the minor child.
It also found that Christina had expended substantial money in improving
the family residence after the parties separated and thus had increased the
value of the asset during the pendency of the action. It considered that Christina had paid the greatest percentage of
the guardian ad litem fees—a sum in excess of $6000. Christina also substantially reduced the marital debt while the
action was pending. The factors relied
on were appropriate and the decision was a proper exercise of discretion.
Joseph appears to
contest the findings that: (1) Christina's parents put up the money for a down
payment, closing costs, and a new furnace for the family residence; (2) the
pontoon boat was not a gift to the parties; (3) the time-share campsite was
purchased with funds Christina inherited; and (4) Christina actually incurred
the bills evidenced by receipts she produced for the purpose of improving the
family residence while the action was pending.
Joseph gives an alternative explanation for the events related to these
findings[4]
and further suggests that he received gifted or inherited antiques and gifts
from Christina which were not returned to him.
There is simply no basis for us to conclude that the trial court's
findings are clearly erroneous. In the
absence of a transcript, we assume that every fact essential to sustain the
trial court's decision is supported by the record. See Zintek v. Perchik, 163 Wis.2d 439, 480,
471 N.W.2d 522, 538 (Ct. App. 1991).
The next issue on appeal
is child support. Joseph was ordered to
pay 17% of his gross weekly income as child support. It is presumed that child support established pursuant to the
percentage standard is fair. Abitz
v. Abitz, 155 Wis.2d 161, 179, 455 N.W.2d 609, 617 (1990). The trial court may deviate from the
percentage standard only if the great weight of the credible evidence shows the
percentage standard to be unfair to the child or to any of the parties. Section 767.259(lm), Stats.
Joseph claims that the
support order is unfair to him because:
(1) the trial court erred in finding that he is capable and fit of
maintaining reasonable employment; (2) Christina earns substantially more money
than he does; (3) he is on disability for which his daughter receives a monthly
social security benefit in addition to the 17% withholding from his social
security benefit; and (4) he has another daughter who gets a part of his social
security benefit. For the purpose of
reviewing the judgment of divorce, the record is completely devoid of any
evidence that the parties' daughter receives social security benefits or that
Joseph pays support for another child.[5] The mere possibility that Christina earns
more than Joseph does not suggest that the application of the percentage
guidelines is unfair to Joseph. See
Luciani v. Montemurro-Luciani, 199 Wis.2d 280, 285, 544 N.W.2d 561,
563 (1996) (absent a payer's showing of unfairness by the greater weight of the
credible evidence, the percentage standards presumptively apply even where the
payee earns a substantially greater income than the payer).
In determining that
Joseph was truly able to work, the trial court considered the result of the
court-ordered independent physical examination, its observation of Joseph in
court, and a videotape of Joseph changing a tire. We are required to give due regard to the opportunity of the trial
court to resolve conflicts in the testimony which requires assessing the
credibility of the witnesses. See
Hughes v. Hughes, 148 Wis.2d 167, 171, 434 N.W.2d 813, 815 (Ct.
App. 1988). We must sustain the trial
court's finding.
Joseph contends he was
not allowed to present expert testimony that the videotape had been
altered. We cannot review this issue
adequately without a transcript of Joseph's offer of proof, if there was
one. However, Joseph's claim appears to
be that the videotape edited out periods of rest he found it necessary to take
while changing the tire and problems he encountered during the process. He admits that it was obvious from the video
that the tape had been stopped and started.
If it was obvious, there was no need for expert testimony on that
point. See State v.
Pittman, 174 Wis.2d 255, 268, 496 N.W.2d 74, 79, cert. denied,
510 U.S. 845 (1993) (determining whether expert testimony assists the fact
finder is a discretionary decision of the trial court).
Even if the video was
not representative of the length of time it took Joseph to change the tire,
that does not change the fact that the video demonstrated Joseph's ability to
lift, twist and bend contrary to his contention that he could not do so. If excluding the expert testimony was error,
it was harmless error. Error may not be
predicated upon a ruling which excludes evidence unless a substantial right of
the party is affected and the substance of the evidence was made known to the
judge by offer or was apparent from the context within which the questions were
asked. Section 901.03(1)(b), Stats.
Joseph's final claim
with respect to the trial court's finding that he could work is that the
determination is contrary to that made by the social security
administration. The trial court was
aware that Joseph's disability claim was pending when it rendered its
decision. It correctly noted that it
would not be bound by the determination of that agency.[6]
In conclusion, Joseph
failed to meet his burden of proving that the application of the child support
percentage guidelines was unfair to him.
We affirm the trial court determination of child support.
Joseph asserts that he
waited until the end of the case to submit his best evidence but that the trial
court cut him off. He contends that he
should have been allowed more time to present his "side of the story
without interruptions." The record
reflects that the child custody issue—the principle issue—was decided in
January 1994. Joseph's attorney was
allowed to withdraw in February 1994.
On March 10, 1994, Joseph appeared with new counsel. The trial continued on three separate
dates. It concluded on November 18,
1994, and the parties were to submit briefs by December 12, 1994. Joseph's attorney was permitted to withdraw
on December 22, 1994, and the time for filing the briefs was extended to
January 10, 1995. Joseph never filed a brief. Instead, he filed successive "order to
show cause" pleadings asserting that Christina had presented false
evidence with respect to the purchase and maintenance of the family
residence. Given that Joseph was
represented by counsel through the close of the evidence in the divorce trial
and chose not to file a brief, we reject his contention that the trial court
prematurely cut off his opportunity to present relevant evidence.
After Joseph commenced
this appeal, he requested the preparation of transcripts without cost. By an order of August 4, 1995, we remanded
that request to the trial court for resolution under State ex rel.
Girouard v. Circuit Court for Jackson County, 155 Wis.2d 148, 454
N.W.2d 792 (1990). In Girouard,
the supreme court held that § 814.29(1), Stats.,
provides that a person may prosecute an appeal without being required to pay
any fee, including a court reporter's transcription fee, upon the court's
approval of an affidavit that because of poverty the person is unable to pay
the costs of the appeal and that the person believes that he or she is entitled
to the redress sought. Girouard,
155 Wis.2d at 157-58, 454 N.W.2d at 796.
Not every appellant is entitled to the preparation of transcripts at no
cost. "The individual must be
found to be indigent by the court, and the person must present a claim upon
which relief can be granted." Id.
at 159, 454 N.W.2d at 797.
The trial court found
that Joseph was not indigent because he receives social security benefits and
is capable of working. "Indigency
primarily is a factual question. We
must accept a finding of fact by a trial court unless it is clearly
erroneous." State ex rel.
Richards v. Circuit Court for Dane County, 165 Wis.2d 551, 555, 478
N.W.2d 29, 31 (Ct. App. 1991). We have
sustained the trial court's finding that Joseph is able to work. Likewise, the trial court's finding that Joseph
is not indigent is not clearly erroneous.
We affirm the trial court's order denying the preparation of transcripts
without cost.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] By an order of February 27, 1996, we held that we do not have jurisdiction to review orders entered on June 20 and September 28, 1995, by the family court commissioner, as referenced in Joseph's notice of appeal. Those orders are not final orders within the meaning of § 808.03(1), Stats. State v. Trongeu, 135 Wis.2d 188, 191-92, 400 N.W.2d 12, 13 (Ct. App. 1986). Therefore, we do not address Joseph's challenge to the order regarding church attendance by the parties' minor child.
[2] Joseph includes numerous documents in his appendices which are not part of the record. He has not given any cross-reference to where the documents may have been offered as exhibits. An appellate court may review only matters of record in the trial court and cannot consider materials outside that record. South Carolina Equip., Inc. v. Sheedy, 120 Wis.2d 119, 125-26, 353 N.W.2d 63, 66 (Ct. App. 1984).
[3] The decision resulted in an order entered on May 5, 1994. The trial court adopted the May 5, 1994, custody order when it rendered the judgment of divorce on March 2, 1995.
[4] Joseph asserts that he received a $20,000 settlement for a pre-marriage work injury which was put into the parties' joint checking account. He contends that part of the down payment and the purchase of the campsite were made from the joint account.
[5] Although the trial court was aware that Joseph's claim for social security benefits was pending, a determination of benefits had not been made when the judgment of divorce was entered. Postjudgment occurrences which may support Joseph's contentions are not of record and are not relevant to review the already existing judgment.
[6] Joseph's reliance on the determination of an administrative agency cuts both ways. The trial court noted that Joseph's worker's compensation benefits had been terminated because of a determination that he was employable. To require reliance on one agency would require reliance on the other. The competing determinations would cancel each other.