COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 20, 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(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. 96-0238
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF
PAMELA
COUNTER AND ROBERT
COUNTER:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
ROBERT COUNTER,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Florence County:
ROBERT A. KENNEDY, Judge. Affirmed.
LaROCQUE, J. Robert Counter appeals an order that among
other things requires that he pay a child support arrearage of $9,782.82 or
serve 120 days in jail. Robert argues
that the order constitutes a punitive sanction rather than a remedial sanction,
and that the court abused its discretion when it ordered him to either borrow
the money or go to jail. He also
contends that he was denied the right to call witnesses in his behalf at the
hearing on the petition for contempt sanctions. This court rejects Robert's contentions and affirms the order.
Robert first contends
that an order that he pay the arrearage based upon a finding that he has the
ability to borrow the money was an abuse of discretion because the ability to
do so is contingent on the approval of the lender. He cites State ex rel. N.A. v. G.S., 156 Wis.2d
338, 456 N.W.2d 867 (Ct. App. 1990), as authority for his contention. G.S. points out that a
contempt sanction is remedial if the defendant is committed unless and until he
performs the affirmative act required by the court order. Id. at 341, 456 N.W.2d at
869. The purge condition must spell out
what the contemnor must do "and that action must be within the power of
the person." Id. at 342, 456 N.W.2d at 869. In G.S., the subject was
placed in jail and ordered to look for work; he could not comply. Id. Further, even if out of jail, this court noted that hiring is an
affirmative act by another individual and, therefore, not solely within the
contemnor's control. Id.
at 343, 456 N.W.2d at 869.
G.S. is
readily distinguished. The requirement
that a contemnor obtain a loan is not the equivalent of an order that he obtain
employment. It is true that like a
request for a job, a loan requires the assent of another. It is different, however, in that loans are
routinely approved on the basis of one's ability to repay it. Robert takes the mandate of G.S.
far too literally. In this case, the
court made an express finding that Robert had the ability to take out a
loan. Robert points to no basis for
this court to conclude that the court's finding was clearly erroneous. See § 805.17(2), Stats.
The record includes evidence that Robert has a legal interest in real
estate. He has shown no basis why, if
he cannot obtain the consent of the other owner, he cannot obtain partition and
a mortgage. The trial court properly
exercised its discretion by ordering Robert to serve a jail sentence in lieu of
obtaining the money to pay the arrearage.
Robert was not denied
the right to call witnesses. Robert did
not ask to call witnesses. He offers no
explanation why he did not inform the court that he wanted to do so. Absent such an explanation and a basis to
support it in the record, Robert waived his right.
By the Court.—Order
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.