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COURT OF APPEALS DECISION DATED AND RELEASED November 7, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
96-2101-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
TERRY LEE RAILING,
Petitioner-Appellant,
v.
JACQUELINE S. RAILING,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Jefferson County: JOHN M. ULLSVIK, Judge. Affirmed.
ROGGENSACK, J.[1] Terry
Lee Railing appeals from an order of the circuit court of Jefferson County
directing him to pay $1,675.59 in attorney's fees and costs incurred by his
former wife, Jacqueline S. Railing, in proceeding on an order to show cause why
Terry should not be held in contempt of court for failing to pay monies required
under the judgment of divorce. Because
this court concludes that the court commissioner's implicit finding that Terry
was in contempt of court on January 9, 1996, was never properly appealed,
and that the circuit court did not abuse its discretion in finding that
Jacqueline reasonably incurred $1,675.59 in attorney's fees and costs to secure
Terry's compliance with the judgment of divorce, the order is affirmed.
BACKGROUND
Terry and Jacqueline
were divorced on July 6, 1994.
Their divorce judgment incorporated the stipulation of the parties,
which required each to contribute one-half of their child, Patricia's, college
tuition, room, board, books and fees, limited by the amount of those costs at
the University of Wisconsin-Madison.
Patricia started college
in August of 1995. After learning what
her costs and fees were, Jacqueline asked Terry to pay half. When he failed to do so, Jacqueline first
tried informally to persuade Terry to comply with his obligations under the
divorce judgment, and when those efforts were unsuccessful, Jacqueline brought
an order to show cause why Terry should not be held in contempt of court for
failing to comply with the judgment of divorce. Terry responded to Jacqueline's order to show cause with a motion
to revise the judgment.
On January 9, 1996,
Terry appeared in person before the court commissioner, who made the following
findings:
Patricia's college expenses through
January 31, 1996, totaled $4,054.54.
Petitioner (Terry) has not paid any of
his share of these expenses.
¼
(Terry) is ordered to deposit his share of the college expenses, a total of
$2,027.27, into Attorney Benskey's trust account by February 9, 1996 ¼
The
Petitioner has the ability to make the above ordered payments in 30 days by
borrowing against his assets ¼.
The
court commissioner also ordered Terry to pay a minimal contribution to Jacqueline's
attorney's fees. He held open the issue
of interest on the unpaid college expenses and attorney's fees for the period
after the January 9th hearing. The
court commissioner did not make a written finding about whether Terry was in
contempt of court. Additionally, he did
not hear Terry's motion to revise the judgment because the local rules for
Jefferson County require that motions to revise the judgment be heard by a
circuit court judge.
On January 19,
1996, Jacqueline moved the circuit court for a de novo review of
the portion of the family court commissioner's decision regarding Terry's
contribution to the attorney's fees she incurred as a result of his failure to
obey the divorce judgment. On
March 27, 1996, the Jefferson County Circuit Court held a de novo
review of the court commissioner's determination in regard to attorney's
fees. Jacqueline presented evidence of
$2,497.84 of attorney's fees and costs which she alleged were reasonably
incurred due to Terry's failure to comply with the divorce judgment. Terry presented expert witness testimony
that the fees and costs were excessive.
Prior to the hearing, Terry had paid his portion of Patricia's college
expenses.
At the conclusion of the
hearing, the circuit court reduced the amount of attorney's fees Jacqueline had
requested because it concluded some of the legal services were not reasonably
necessary, and thereafter it ordered Terry to pay $1,675.59. The court ordered payment under § 785.04(1)(a),
Stats., as a sum of money
sufficient to compensate Jacqueline for the fees she incurred as a result of
Terry's being in contempt of court on January 9, 1996.
Terry appeals,
contending that the circuit court could not find him in contempt of court on
March 27, 1996 because he was then in compliance with the judgment of
divorce; that the circuit court could not find him in contempt on
March 27th because he had no notice that contempt was to be a subject of
the March 27th hearing; and that the circuit court could not award
attorney's fees as a remedy for contempt because the fees were not
reasonable. We reject each of Terry's
arguments and affirm the order of the circuit court.
DISCUSSION
Scope
of Review.
We review the use of the
court's contempt power under the clearly erroneous standard and we will not set
aside a determination that a person has committed contempt of court unless the
findings which support that determination are clearly erroneous. N.A. v. G.S., 156 Wis.2d 338,
341, 456 N.W.2d 867, 868 (Ct. App. 1990).
In a like manner, we will uphold a trial court's determination of the
amount of attorney fees which are reasonable in a given case, unless the trial
court has erroneously exercised its discretion. Michael A.P. v. Solsrud, 178 Wis.2d 137, 153, 502
N.W.2d 918, 925 (Ct. App. 1993).
Contempt
of Court.
In order to be found in
contempt of court for failure to comply with a court order, one must receive
notice of the proceedings and have an opportunity to be heard. Additionally, the court must make findings
that the putative contemnor had the ability to comply with the court's order
but has not done so. Balaam v.
Balaam, 52 Wis.2d 20, 29, 187 N.W.2d 867, 872 (1971). In civil contempt proceedings, the burden of
proof is on the alleged contemnor. Id.
at 30, 187 N.W.2d at 872.
Terry argues that the
circuit court could not hold him in contempt of court because he had no notice
that anything other than attorney's fees were to be under review at the
March 27th hearing, and he also argues contempt was not available because
he was then in compliance with the divorce judgment. He cites Dennis v. Dennis, 117 Wis.2d 249, 344
N.W.2d 128 (1984), to support his lack of notice argument and State v.
King, 82 Wis.2d 124, 262 N.W.2d 80 (1978), to support his argument that
civil contempt is no longer available when one has come into compliance with a
court judgment.
In order to consider
Terry's arguments, it is necessary to understand what the circuit court was
asked to do on March 27th. Those
proceedings were a de novo review of only the issue for which
review had been requested, i.e., Terry's contribution to Jacqueline's
attorney's fees and costs pursuant to § 785.04(1)(a), Stats.
The circuit court did not disturb other determinations made by the court
commissioner for which a review had not been requested. Rather, it expressed what was apparent from
the uncontested findings of the court commissioner: that Terry was in contempt of court on January 9, 1996.
Prior to January 9th,
Terry had notice that Jacqueline had instituted a contempt action to enforce
the divorce judgment because he had received an order to show cause why he
should not be found in contempt of court[2]
for failing to pay half of Patricia's college expenses. Terry appeared at the hearing where the court
commissioner found that Terry had the ability to comply with the divorce
judgment by paying half of Patricia's $4,054.54 in college expenses, but had
not done so. He does not argue that he
was not afforded an opportunity to be heard on January 9th. The attorney's fees that were ordered then,
and reviewed de novo by the circuit court, were grounded in
§ 785.04(1)(a), Stats.[3] Although the court commissioner did not make
an explicit finding of contempt, it is implicit from the authority invoked in
the order to show cause; from the finding of ability to comply with the
judgment and failure to do so; and from the court commissioner's award of
attorney's fees.[4] Terry did not seek a de novo review
of any portion of that order; therefore, he may not now challenge those
findings on appeal. First Bank v.
H.K.A. Enters., 183 Wis.2d 418, 426-27 n.10, 515 N.W.2d 343, 347 (Ct.
App. 1994).
Terry next argues that
the circuit court erred because he was in compliance with the divorce judgment
on March 27th, and therefore, it does not matter what the facts were on January
9th. He cites State v. King,
which arose as the result of a labor dispute, to support his position. There, certain persons were enjoined from
striking, but disregarded the court's order and struck in defiance of it. After the striking workers had returned to
work and were no longer defying the court's order, the State initiated contempt
proceedings against the union and certain designated employees, for violating
the injunction. The supreme court
concluded that the remedy of civil contempt was not available because it
expired when the strike was settled. King,
82 Wis.2d at 138, 262 N.W.2d at 86.
This court does not find
King persuasive for at least two reasons. First, it was on January 9th that the
contempt hearing was held. Terry does
not argue that he was in compliance with the divorce judgment then. Since the circuit court was conducting a de novo
review of only the attorney fees issue on March 27th, Terry's contempt had
already been implicitly determined on January 9th. The remedy of civil contempt was available when the order to show
cause was filed and also when the court commissioner made its factual
findings. Therefore, King
is not controlling.
Second, to ignore the
fact that Jacqueline had to incur unnecessary attorney's fees and use scarce
judicial resources to force Terry's compliance with the divorce judgment, when
he had the ability to comply, would encourage contemptuous conduct rather than
voluntary compliance with court orders.
Therefore, the controlling date in regard to Terry's contempt is
January 9th. The circuit court
made this clear by stating that Terry was in contempt of court on
January 9, 1996, the date on which the family court commissioner heard the
motion for contempt. Terry does not
draw this court's attention to any portion of the record which would cause
those findings to have required additional testimony on March 27th. Therefore, this court concludes that the
remedy of civil contempt was available on January 9, 1996, and that the
court commissioner made explicit factual findings consistent with contempt of
court, from which findings Terry did not request a de novo
review. The circuit court's statement
that Terry was in contempt of court on January 9th was not a new factual
finding, but rather an acknowledgement of the court commissioner's contempt
finding, from which no review was sought.
Reasonableness
of Attorney's Fees.
The court may award
reasonable attorney fees and other litigation costs which were incurred in
connection with a contempt proceeding.
Section 785.04, Stats.; Town of Seymour v. City of Eau Claire,
112 Wis.2d 313, 320, 332 N.W.2d 821, 824 (Ct. App. 1983). Section 785.04 states in relevant part:
(1) Remedial sanction. A court may impose one or more of the
following remedial sanctions:
(a) Payment
of a sum of money sufficient to compensate a party for a loss or injury
suffered by the party as the result of a contempt of court.
The
circuit court has the inherent power to determine the reasonableness of
attorney fees. Harro, McAndrews
& Porter v. Gerhardt, 62 Wis.2d 179, 185, 214 N.W.2d 401, 404
(1974). This court independently
reviews attorney fees when they are challenged on appeal. Seymour, 112 Wis.2d at 321,
332 N.W.2d at 824. Factors which we
consider are the amount and type of services, the time required by the contempt
proceeding, the skill of the attorney, and the importance of the
litigation. Id.
Terry contends that the
trial court erred because it did not accept Attorney Martin Harrison's
testimony that the fees sought were "excessive". However, Attorney Harrison's testimony
showed he did not consider any of the costs that Jacqueline incurred, or the
parties' stipulation which had to be drafted to accommodate Terry's request for
a continuance, or the time the parties had actually spent in court
proceedings. He did agree that if Terry
had paid nothing toward Patricia's college expenses when the parties appeared
before the court commissioner that he could not have been in compliance with
the divorce judgment at that time.
The court carefully
considered Attorney Harrison's testimony and agreed that Terry should not be
required to pay Jacqueline's attorney's fees incurred to meet his motion to
modify the judgment. The court made
specific reductions in the requested fees in that regard, and awarded $822.25
less than Jacqueline requested. We have
reviewed the bill for legal services which details the time spent and the
hourly rates charged. Given the nature
of the proceedings, the fact that only Jacqueline had an attorney when most of
the fees were generated, and the appropriate reductions made by the trial
court, we conclude the trial court properly exercised its discretion. See Stan's Lumber, Inc. v.
Fleming, 196 Wis.2d 554, 572, 538 N.W.2d 849, 856 (Ct. App. 1995).
Terry also contends that
the amount of money which he owed, $2,027.27, was small by comparison to the
attorney's fees requested; and therefore, the fees in and of themselves were
unreasonable. His argument was
considered by the circuit court, which was concerned that the "sum seems
greater than its parts." However,
after studying each part of the bill from Jacqueline's attorney, it found that
most were reasonably incurred in order to obtain Terry's compliance with the
judgment of divorce. We find no error
in the circuit court's determination; and therefore, we affirm its decision in
regard to the remedy it applied, pursuant to § 785.04(1)(a), Stats.
CONCLUSION
By the Court.—Order
affirmed.
Not recommended for
publication in the official reports.