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COURT OF APPEALS DECISION DATED AND RELEASED July 2, 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. 96-0173
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
DONNA L. FORTIN,
Petitioner-Respondent,
v.
EUGENE E. ZEGAROWICZ,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Dunn County:
JAMES A. WENDLAND, Judge. Affirmed.
MYSE, J. Eugene Zegarowicz
appeals an order finding him in contempt for failure to pay child support
arrears as ordered by the trial court.
The contempt order imposed a sixty-day jail term with purge provisions
requiring Zegarowicz to file a full financial disclosure statement with signed
authorizations to verify the financial information disclosed, and to pay $400
per month for the next twelve months as partial payment on the arrears. Zegarowicz contends that the trial court
erroneously exercised its discretion by: (1) finding him in contempt for
failure to pay child support arrears without evidence or findings as to his
ability to pay; (2) imposing a sixty-day jail sentence without evidence
that he had the ability to comply with the purge provisions; and (3) awarding
Fortin attorney fees without a finding of Zegarowicz's ability to pay and
Fortin's need for contribution to fees.
This court rejects Zegarowicz's arguments and affirms the order.
Zegarowicz and Fortin
were divorced in 1966. Pursuant to the
divorce judgment, Zegarowicz was ordered to pay $260 per month child support
for the three minor children born of their marriage. In 1972, the judgment was modified to require the payment of $300
per month, $260 for current child support and $40 for arrears. All three children were emancipated as of
July 1975. While Zegarowicz has
practiced law in New York for years, he suffered a stroke in September 1994 and
has not practiced since.
In March 1995, Fortin
filed a motion to enforce the child support provisions of the divorce
judgment. Zegarowicz did not appear
personally, but filed an affidavit in response to Fortin's motion and was
represented by counsel at the hearing.
The trial court found that the principle amount of child support unpaid
pursuant to the terms of the divorce judgment totaled $16,320. A subsequent calculation, including
interest, determined the full amount of the arrearage to be $51,816. The trial court ordered Zegarowicz to
contribute $500 toward Fortin's attorney fees and to pay the total amounts for
arrearages and attorney fees within sixty days of the hearing.
At the expiration of
sixty days, Fortin filed a motion for remedial contempt because Zegarowicz had
not paid the arrearage or attorney fees.
Zegarowicz did not appear at the contempt hearing but was represented by
counsel. At the hearing, the trial
court ruled that Zegarowicz's affidavit offered by his attorney was hearsay and
would not be considered by the court.
Zegarowicz offered no other evidence at the hearing. Fortin testified that Zegarowicz had only
made a $100 payment since the previous court hearing. The trial court found that the $100 payment was contemptuous in
and of itself. The trial court also
found that Zegarowicz had the opportunity to come into court on two occasions
and failed to either appear personally or by telephone and therefore had not
made himself available for cross-examination as to his true net worth and
income. Therefore, the trial court
found Zegarowicz in contempt and sentenced him to sixty days in jail with purge
provisions requiring him to file a full financial disclosure statement with
signed authorizations to verify the financial information disclosed and to pay
$400 per month for the next twelve months as partial payment on the
arrears. The trial court further
ordered Zegarowicz to pay $250 in attorney fees to Fortin's attorney as costs
for bringing the contempt action.
Zegarowicz appeals this order.
Zegarowicz first
contends that the trial court erred by finding him in contempt without evidence
or findings as to his ability to pay.[1] The trial court's use of its contempt power
is reviewed for an erroneous exercise of discretion. State ex rel. N.A. v. G.S., 156 Wis.2d 338, 341,
456 N.W.2d 867, 868 (Ct. App. 1990).
This court will sustain the discretionary determination as long as it is
the product of a rational mental process based on the reasoned application of
the appropriate legal standard to the relevant facts. Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 471,
326 N.W.2d 727, 732 (1982). Where the
trial court fails to set forth its reasoning, this court independently reviews
the record to determine whether there is a basis for the trial court's
decision. WPS Corp. v. Krist,
104 Wis.2d 381, 395, 311 N.W.2d 624, 631 (1981).
"[A] person may be
held in contempt of court for failure to pay money only where the failure to
pay is willful and not the result of an inability to pay." Balaam v. Balaam, 52 Wis.2d
20, 29, 187 N.W.2d 867, 872 (1971).
Because this was a civil contempt proceeding, the burden of proof was on
Zegarowicz to show that his conduct was not contemptuous. Id. at 30, 187 N.W.2d at
872. Accordingly, Zegarowicz had the
burden to show either that his failure to pay was not willful or that it was
the result of an inability to pay.
Zegarowicz contends that
there was no evidence or finding of his ability to pay. Zegarowicz, however, ignores the rule that
the burden was on him to prove that his failure to comply was not
contemptuous. Zegarowicz did not
produce any evidence in support of a defense of an inability to pay more than
the $100 payment toward the arrears.
While Zegarowicz's attorney offered an affidavit into evidence showing
Zegarowicz's income and expenses, the trial court struck the affidavit from the
record as hearsay. The trial court in
its order found that Zegarowicz had opportunities to appear either personally
or by telephone and failed to do so and therefore had not made himself
available to be cross-examined regarding his true net worth and income. Based on the trial court's finding and the
fact that the record reflects that Zegarowicz failed to produce any evidence of
his inability to pay, this court concludes that the trial court did not
erroneously exercise its discretion by finding Zegarowicz in contempt.
In addition,
Zegarowicz's affidavit supports the trial court's finding that the $100 payment
was contemptuous in and of itself.
While the affidavit was hearsay for the purposes Zegarowicz wished to
use it, the trial court could consider the affidavit an admission for the
purpose of determining that Zegarowicz had income and the ability to make more
than the $100 payment. See §
908.01(4)(b), Stats. A finding that Zegarowicz had the ability to
make payments greater than the $100 payment is a finding of fact this court
reviews under the clearly erroneous standard.
See § 805.17(2), Stats.
The affidavit discloses
that Zegarowicz receives pension and social security income in excess of $2,000
per month. The affidavit further
indicates that Zegarowicz makes a $315 per month mortgage payment from which
the court may infer that he is the owner of a home. According to the affidavit, Zegarowicz had in excess of $200 per
month after his monthly expenses.
Further, his monthly expenses included rent, telephone and yellow pages
advertisement for his law office that he has not used since his stroke
totalling $465 per month. From these
facts, the trial court may reasonably assume that the payment of $100 over a
sixty-day period was an unreasonable effort toward discharging over $50,000 of
child support arrears. Therefore, this
court concludes that the trial court's finding of fact is supported by the
evidence in the record and not clearly erroneous.
Next, Zegarowicz
contends that the trial court erroneously exercised its discretion by imposing
a sixty-day jail term without evidence that he had the ability to comply with
the purge provisions. Zegarowicz contends
that there is no evidence that he can pay $400 per month toward the
arrears.
It is true that the
general statement of law is that the purge conditions must be within the power
of the contemnor. G.S.,
156 Wis.2d at 342, 456 N.W.2d at 869.
Zegarowicz, however, misunderstands the requirements of the purge
provisions. The requirement that the
provisions be reasonable does not require a finding that the person found in
contempt can meet the terms of the purge order from his current income. Purge provisions that require the person in
contempt to borrow money, liquidate assets or take other steps to meet
conditions required to purge are not unreasonable merely because they cannot be
paid from current cash flow.
The touchstone of the
purge provision is its reasonableness, not the ability to meet the conditions
from any specific asset or source of income.
Here the court required a $400-per-month payment as well as financial
disclosures. Based upon a substantial
period of time practicing law, pension and social security income in excess of
$2,000 per month and the evidence that he is the owner of a home, this court
concludes that the $400-per-month cash requirement is reasonable. Therefore, this court concludes that there
is no merit to Zegarowicz's contention that the trial court erroneously
exercised its discretion by formulating the conditions necessary for Zegarowicz
to purge himself of the contempt finding.
Finally, Zegarowicz
contends that the trial court erred by ordering him to pay $250 toward Fortin's
attorney fees as costs for bringing the contempt action. Zegarowicz argues that the court must make a
finding of his ability to pay and Fortin's need for contribution to fees before
such an order can be entered.
Zegarowicz, however, confuses the award of attorney fees at the time of
divorce with the trial court's powers in a remedial contempt hearing. Section 785.04(1)(a), Stats., permits the trial court to
impose a sanction of payment of a sum of money sufficient to compensate a party
for a loss suffered as a result of the contempt of court. A person may be awarded attorney fees
incurred while prosecuting a contempt action as losses. Seymour v. Eau Claire,
112 Wis.2d 313, 320, 332 N.W.2d 821, 824 (Ct. App. 1983). Because there is no requirement that there
be a finding of need and an ability to pay before the trial court may exercise
its remedial contempt powers in regard to attorney fees, we reject Zegarowicz's
argument.
Because this court concludes
that the trial court did not erroneously exercise its discretion by finding
Zegarowicz in contempt, by formulating the conditions necessary to purge his
contempt or by awarding attorney fees, the order is affirmed.
By the Court.—Order
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.