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COURT OF APPEALS DECISION DATED AND FILED September 17, 2013 Diane M. Fremgen Clerk of Court of Appeals |
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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. |
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APPEAL from an order of the circuit court for Milwaukee County: elsa c. lamelas, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Angela F. appeals a circuit court order that:
(1) denied her request to reinstate a child support arrearage incurred by
Samuel R. that the family court commissioner expunged nearly six years earlier;
and
(2) modified Samuel R.’s monthly child support obligation without first
enforcing her discovery demand. We
affirm.
BACKGROUND
¶2 Angela
F. and Samuel R. are the parents of two nonmarital children, one born in
October 1990 and the other born in January 1994.[1] Angela F. was the custodial parent, and Samuel
R. was required to pay child support in an amount that has fluctuated over the
years pursuant to various orders imposing and modifying his obligation.
¶3 In
2005, Angela F. and Samuel R. filed a stipulation in which Angela F. forgave
$10,052.84 in child support arrears. The
family court commissioner approved the stipulation by order entered on November
21, 2005. Angela F., however, had second
thoughts about the agreement, and, in April 2006, she moved to reinstate the
arrearage. An assistant family court
commissioner denied her request on May 19, 2006. Angela F. did not file or serve a motion for
circuit court review of the commissioner’s decision.
¶4 In
December 2007, Angela F. moved to increase Samuel R.’s monthly child support
obligation. In the three years that followed, the parties
filed various motions and orders to show cause seeking modifications of Samuel
R.’s support obligation, and Angela F. on several occasions demanded disclosure
of financial documents from Samuel R. We
will not describe here each contentious step of the couple’s labyrinthine path
through the court system during this three‑year period. Our recitation of the history of this case is
limited to matters directly underlying the issues before us on appeal. Suffice it to say that the dominant theme of the
litigation was—and is—Angela F.’s contention that Samuel R. earns a
substantial amount of undisclosed income as a disc jockey and her corresponding
contention that a share of this hidden income should be paid to her as child
support.
¶5 In
March 2009, the parties appeared before the circuit court for a hearing. Angela F. had subpoenaed Antoine Nixon, who
she hoped would testify about Samuel R.’s purported hidden income, but Nixon
failed to respond to the subpoena. The
circuit court issued a body attachment for Nixon and adjourned the hearing
pending his appearance.[2]
¶6 Notwithstanding
the pendency of proceedings before the circuit court, the parties filed
additional motions to modify Samuel R.’s child support obligation and appeared
before an assistant family court commissioner for a hearing on December 21,
2010. In addressing the competing
claims, the commissioner observed that the parties had a history of filing motions
and requests for review while related or identical motions and requests for
review were already pending. The
commissioner explained that these overlapping submissions resulted in “layers
of confusion” that clouded the question of how much income Samuel R. earned. The commissioner lamented that the litigation
had “swollen into [a] near incoherent dispute,” and the commissioner observed
that “in large measure this was due to [Angela F.’s] ineffectual approach.” Our review of the record confirms the
accuracy of the commissioner’s observations.
¶7 Substantively,
the assistant family court commissioner declined to modify the monthly child
support order of $210 that was then in place.
The commissioner explained:
the issue of Samuel R.’s deejay income is pending
before the circuit court.... [Angela F.]
has claimed that
[Samuel R.] has deejay income for the past several years but has yet to prove
it to the circuit court’s satisfaction.
That very question is pending before the circuit court awaiting the
testimony of [] Nixon.... To further
exacerbate matters, [Samuel R.] then files a new motion as to support while one
is already pending.... Unless or until
the pending matters are resolved no further pleadings should be
entertained.
¶8 Angela
F., proceeding pro se, petitioned the
circuit court for de novo review. She also filed a discovery demand seeking
documents related to
Samuel R.’s alleged business interests.
¶9 The circuit court held a hearing on March 10, 2011.[3] During that proceeding, Samuel R. responded to Angela F.’s discovery demand with testimony that the personal income tax returns he had previously produced accurately reflected the entirety of his income.[4] He explained, personally and through his attorney, that the business Angela F. believes he owns ceased operation in 2007 because it did not produce any income. He further explained that articles of dissolution for the business are publicly available to Angela F. if she wants them. At the conclusion of the hearing, the circuit court declined to require Samuel R. to produce any additional documents.
¶10 In June 2011, Nixon
appeared before the circuit court, and it conducted the hearing adjourned in
March 2009. In response to questioning
by Angela F., Nixon testified that his work includes hiring entertainers to
perform at various events, but he denied hiring Samuel R. to perform at any
time. Further, Nixon testified that he
did not know whether Samuel R. had ever received payments from any source for
performing as a disc jockey.
¶11 Samuel
R. also testified. He explained that he was
earning $10 an hour working second shift in the shipping department of a
foundry. He acknowledged that he
performs as a disc jockey “on Saturdays every now and then,” but he maintained
that he does so as a hobby, receiving only nominal payments of $50.
¶12 Angela
F. sought to impeach Samuel R. with evidence of a 2008 contract in which he
agreed to perform as a disc jockey at a birthday party in exchange for
$350. Samuel R. testified, however, that
the contract was the product of a transaction arranged by Angela F. He explained:
“that’s the contract that [Angela F.] made up.... [She] had that person come in there and set
all of that up and—and I’ve never got paid.”
¶13 Angela
F. did not testify. Rather, she offered
argument that
Samuel R.’s $210 monthly child support obligation was too low because it did
not reflect Samuel R.’s undisclosed income.
She also asked the circuit court to reinstate the child support
arrearage expunged in 2005, suggesting that she had not knowingly and intelligently
entered the stipulation forgiving that arrearage.
¶14 The
circuit court deemed any effort to disturb the stipulation “a stretch,” and
declined to tamper with an agreement that the family court commissioner had
approved nearly six years earlier. The
circuit court further found reasonable Samuel R.’s offer to increase his
monthly child support payments from $210 to $410 and to pay a portion of the
cost of some orthodontic treatment for the younger child. The circuit court otherwise denied relief,
and Angela F. appeals.
DISCUSSION
¶15 We
construe the briefs that Angela F. submitted in this matter as presenting three
claims: (1) the circuit court should
have reinstated Samuel R.’s expunged child support arrearage; (2) the circuit
court should have ordered Samuel R. to comply with her discovery demands; and
(3) the circuit court erred in establishing Samuel R.’s monthly child support
obligation. The claims lack merit.
¶16 Angela
F. contends that the circuit court erred when it declined to set aside the 2005
stipulation and order expunging Samuel R.’s child support arrearage. We disagree.
In May 2006, an assistant family court commissioner denied her request
to set aside the stipulation and order, and Angela F. does not show that she
followed the applicable procedures for obtaining circuit court review of that
decision.[5]
¶17 “The
administration of the courts in Milwaukee [C]ounty is governed by the statutes,
supreme court rules, and local rules.” Dumer
v. State, 64 Wis. 2d 590, 597, 219 N.W.2d 592 (1974). Wisconsin
Stat. § 757.69(8) is the statute governing circuit court review of
a family court commissioner’s decision.[6] Pursuant to that statute, “[a]ny decision of
a circuit court commissioner shall be reviewed by the judge of the branch of
court to which the case has been assigned, upon motion of any party.” Id.
A motion is “an ‘application for an order.’” Kolupar v. Wilde Pontiac Cadillac, Inc.,
2003 WI App 175, ¶10, 266 Wis. 2d 659, 668 N.W.2d 798, aff’d in part and remanded, 2004 WI 112,
275 Wis. 2d 1, 683 N.W.2d 58 (citing State ex rel. Webster Mfg. Co. v. Reid,
177 Wis. 612, 616, 188 N.W. 67 (1922)).
The application is made “when it has been served and is filed.” Reid, 177 Wis. at 616. Angela F. does not show compliance with
§ 757.69(8) because she fails to demonstrate that she ever served and
filed an application to the circuit court for an order reversing the family
court commissioner’s decision of May 19, 2006.
¶18 A
Milwaukee County local rule also governed Angela F.’s efforts to obtain review
of the assistant family court commissioner’s May 2006 decision. See
Milwaukee County Local Rule XIII (2003), De Novo Review of Court Commissioner
Decisions and Orders.[7] Pursuant to the local rule, a party seeking
review of a 2006 court commissioner’s order was required, within fifteen days
after receiving an adverse decision, to “file a notice of motion and motion
before the judge assigned to the case requesting the judge to conduct a de novo review of any decision, order,
or ruling of any court commissioner.” See Local Rule XIII (A)(1). The local rule further required a party desiring
de novo review to serve the other
parties to the action with a copy of the motion for review and to file a
conformed copy of the motion with the family court commissioner. See
Local Rule XIII (3), (5). Angela F.
fails to show that she took these actions, let alone that she took them within
the time frame required. Accordingly,
the circuit court properly declined to disturb the commissioner’s decision.
¶19 We
recognize that the circuit court did not rely on Angela F.’s procedural
missteps as the basis for refusing to set aside the stipulation and order
expunging Samuel R.’s child support arrearage.
We may, however, affirm a correct circuit court ruling for reasons other
than those relied upon by the circuit court.
See State v. Cain, 2012 WI
68, ¶37 n.10, 342 Wis. 2d 1, 816 N.W.2d 177.
¶20 Moreover,
the circuit court’s decision to uphold the stipulation is proper on the
merits. When parties enter into a
stipulation governing child support obligations, “courts will attempt to give
effect to the parties’ intentions where the stipulation was entered into freely
and knowingly, was fair and equitable when entered into, and is not illegal or
violative of public policy.” May
v. May, 2012 WI 35, ¶36, 339 Wis. 2d 626, 813 N.W.2d 179.
¶21 Whether
to preclude a parent’s challenge to a child support stipulation rests in the
circuit court’s discretion. See id., ¶48. We will uphold a discretionary decision if
the circuit “court examined the relevant facts, applied proper legal standards,
and used a demonstrated rational process to reach a conclusion that a
reasonable judge could reach.” Id. Furthermore, when the circuit court does not
fully set forth its reasoning, “we may search the record to determine if it
supports the court’s discretionary decision.”
Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612
N.W.2d 737. We do so because the exercise
of discretion is critical to the functioning of the circuit court. See Olivarez v. Unitrin Prop. & Cas. Ins.
Co., 2006 WI App 189, ¶17, 296 Wis. 2d 337, 723 N.W.2d 131.
¶22 Here,
Angela F. argued that she did not knowingly enter the stipulation because she
did not know the precise amount of the arrearage she agreed to forgive when she
signed the document, and she asserted that Samuel R. filled in the amount
later. Samuel R., however, testified
that he and Angela F. discussed the amount of the arrearage and that Angela F.
agreed to forgive his debt so that he could buy a house. Angela F. did not testify, and thus offered
no evidence contradicting Samuel R.’s testimony.[8] See
Wis JI—Civil 100 (evidence is
testimony, exhibits, and stipulated facts).
We also observe that, even assuming that Samuel R. later added the exact
amount of his arrearage to the signed stipulation, the text of the document
reflects that Angela F. agreed to forgive “all” of his debt.
¶23 Angela
F. also fails to show that the stipulation is inherently inequitable or that it
is unlawful. See May, 339 Wis. 2d 626, ¶36. To the contrary, the law is clear that a
court-approved stipulation regarding arrearage forgiveness or compromise is
neither illegal nor contrary to public policy and may be enforced. See Motte v. Motte, 2007 WI App 111,
¶¶23-26, 300 Wis. 2d 621, 731 N.W.2d 294.
Here, Samuel R. remained obligated to pay on-going child support, the parties
remained free to seek modification of that order, and the family court retained
the authority to modify Samuel R.’s ongoing obligation as required for the best
interest of the children. Accordingly,
the record supports the circuit court’s discretionary decision to enforce the
stipulation.
¶24 Angela
F. next complains that the circuit court improperly denied her request for
discovery. Again, we disagree.
¶25 “The
standard of review of a discovery order is whether the [circuit] court
erroneously exercised its discretion.” Rademann
v. State DOT, 2002 WI App 59, ¶34, 252 Wis. 2d 191, 642 N.W.2d 600. Angela F. has the burden to establish an erroneous
exercise of discretion. See id. She has not carried that burden.
¶26 Samuel
R. explained to the circuit court that he had provided
Angela F. with his existing tax returns and with financial disclosure
statements. He testified that these
documents fully and accurately reflect his income.[9]
¶27 The
circuit court concluded that it could rely on Samuel R.’s testimony and the
documents that he produced to determine the income available for child
support. “On questions of credibility,
this court is bound by the trier of fact’s determinations.” Associates Fin. Servs. Co. of Wis. v. Hornik,
114 Wis. 2d 163, 169, 336 N.W.2d 395 (Ct. App. 1983). We therefore will not disturb the circuit
court’s conclusions that additional discovery was unwarranted and that the
testimony of Samuel R. and the personal tax returns that he produced are the
most reliable available evidence of his income.
¶28 Angela
F. last complains that the circuit court erred by increasing Samuel R.’s
monthly child support payments from $210 to $410 and that the circuit court
should have established a higher obligation “that was to [her]
satisfaction.” The determination of
appropriate child support is committed to the discretion of the circuit court. Randall, 235 Wis. 2d 1, ¶7. Thus, our standard of review is
deferential. See Olivarez, 296 Wis. 2d
337, ¶16. “Discretionary determinations
are not tested on appeal by our sense of what might be a ‘right’ or ‘wrong’
decision in the case. Rather, the
determination will stand ‘unless it can be said that no reasonable judge,
acting on the same facts and underlying law, could reach the same conclusion.’”
Id. (citations omitted). Our standard of review also requires that we
sustain the factual findings of the family court unless they are clearly
erroneous. See Sellers v. Sellers,
201 Wis. 2d 578, 586, 549 N.W.2d 481 (Ct. App. 1996). Further, when findings of fact are based on
the circuit court’s assessment of witness credibility, we defer to the circuit
court’s opportunity to make that assessment. See Jacquart v. Jacquart, 183
Wis. 2d 372, 386, 515 N.W.2d 539 (Ct. App. 1994).
¶29 Here,
Angela F. sought to prove that Samuel R. had hidden income by presenting
testimony from Nixon, but Nixon testified that “he didn’t know anything about
what amount of money [Samuel R.] earned, if any.” Angela F. also pointed to a 2008 contract for
Samuel R.’s services as a disc jockey, but the testimony revealed that the
contract memorialized only a sham agreement that she had arranged. The circuit court did not erroneously
exercise its discretion by rejecting Angela F.’s evidence as inadequate to
prove that Samuel R. had a significant stream of hidden income.
¶30 The
circuit court relied on Samuel R.’s testimony, wage information, and tax
returns to determine his earnings. The
testimony established that he earns $10 an hour as a laborer. In light of Samuel R.’s acknowledgment that
he received an occasional payment of $50 for performing as a disc jockey, the
circuit court concluded that his offer to pay an additional $200 each month
would result in an appropriate child support award. The circuit court recognized Angela F.’s
dissatisfaction with the amount ordered, but the circuit court explained that “despite
[Angela F.’s] various efforts, and the many opportunities to present the
necessary evidence in court, [Angela F.] simply has failed to present evidence
that establishes greater or hidden income by [Samuel R.] sufficient to warrant
relief.”
¶31 We
will not disturb the circuit court’s findings and conclusions in light of the record
here. Although Angela F. demonstrated
that Samuel R. on occasion performs as a disc jockey, she failed to prove that
his hobby is a meaningful source of income. The circuit court did not err in refusing to
base an order on Angela F.’s unsubstantiated suspicions.[10] For all of the foregoing reasons, we affirm.
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Although both children at the center of the parties’ dispute are now over the age of eighteen, the younger child was a minor throughout the circuit court proceedings underlying this appeal.
[2] The Honorable Karen Christenson presided over the March 2009 hearing and issued a body attachment for Antoine Nixon.
[3] The Honorable Elsa C. Lamelas presided over the 2011 circuit court proceedings in this matter.
[4] Samuel R.’s personal income tax returns for the years 2003-2009 are in the record.
[5] The arguments in Angela F.’s briefs at times suggest that Angela F. seeks to challenge in this court the 2005 order of the family court commissioner adopting the stipulation and to challenge the 2006 decision by an assistant family court commissioner refusing to set aside the stipulation. The family court commissioners’ decisions and orders entered in 2005 and 2006 are not before us. An appeal can be taken only from a judgment or order of a circuit court. See Wis. Stat. Rule 809.01(1) (2011-12). A court commissioner’s determination is not the equivalent of an order of the circuit court and cannot be appealed directly to the court of appeals. Dane Cnty. v. C.M.B., 165 Wis. 2d 703, 709, 478 N.W.2d 385 (1992). Accordingly, we consider only whether the circuit court erred when it declined to set aside the stipulation and order. All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[6] The text of Wis. Stat. § 757.69(8) is the same today as in May 2006.
[7] Current Milwaukee County local rules are publicly available through, inter alia, the website of the Wisconsin State Bar. The local rules in effect in 2006 are available using the Internet Archive Wayback Machine. See http://archive.org.
[8] Angela F. complains that the circuit court “erred by not allowing [her] to testify to [her] version of events under oath.” Angela F. points to nothing in the record substantiating her suggestion that the circuit court somehow prevented her from testifying. She appeared pro se, and, as a self-represented person, she could have called herself to the stand, but she did not do so. “[N]either a trial court nor a reviewing court has a duty to walk pro se litigants through the procedural requirements or to point them to the proper substantive law.” Waushara Cnty. v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d 16 (1992). In short, the circuit court bears no responsibility for Angela F.’s failure to call herself as a witness in support of her position.
[9] Angela F. complains that Samuel R. provided an “altered [personal] tax return for 2009.” Angela F. appears to refer to the portion of Samuel R.’s 2009 federal return where someone has inked over the bank account number and bank routing number included on the return to permit the direct deposit of an $11 tax refund. The masking of these numbers appears to conform with the parties’ practice. The copies of Samuel R.’s tax returns for other years in which the government owed him a refund also shield the bank account and bank routing numbers but do so by replacing those numbers with a series of typed “x’s.” Regardless, Angela F. does not suggest any way in which masking the bank account number and bank routing number affects the validity of the financial information provided in the 2009 tax return.
[10] We note with concern that Angela F. relies on unsupported innuendo about the circuit court itself as a basis for relief on appeal. Pointing to the circuit court’s reference to Samuel R.’s stage name when dismissing Samuel R. from the courtroom, Angela F. asserts that she “do[es] not understand [the circuit court’s] purpose” in mentioning his stage name “unless [the circuit court] plan[ned] to hire him to DJ ... or [to] do[] business outside of the courts.” An accusation that the circuit court reached its decision in light of undisclosed plans to do business with a litigant in the future is disrespectful to the circuit court and improper unless unimpeachably substantiated. We advise Angela F. that “disrespectful criticisms made in this court upon the judges of the court below, are offensive, not only to those courts but to [ours].” Hanson v. The Milwaukee Mechs.’ Mut. Ins. Co., 45 Wis. 321, 324 (1878).