COURT OF APPEALS DECISION DATED AND FILED |
NOTICE |
December 2, 1998 |
This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports. |
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin |
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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT II |
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In
re the Marriage of: Paula
Steinmetz,
Petitioner-Appellant, v. Thomas
Steinmetz,
Respondent-Respondent. |
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APPEAL from an order of the circuit court for Waukesha County: patrick c. haughney, Judge. Affirmed.
Before Snyder, P.J., Brown and Anderson, JJ.
PER CURIAM. Paula Steinmetz appeals from a circuit court order denying her § 806.07, Stats., motion to reopen the judgment divorcing her from Thomas Steinmetz.[1] Because we conclude that the circuit court did not erroneously deny the motion, we affirm.
The final hearing on the parties’ divorce occurred in August 1996. The parties entered into a stipulation regarding the issues between them. The court approved the stipulation, granted a judgment of divorce, and directed Paula’s counsel to prepare findings of fact, conclusions of law and the judgment of divorce. In November 1996, with new counsel, Paula moved the court under § 806.07, Stats., to reopen the judgment of divorce[2] claiming that her counsel did not properly prepare her for the final hearing, did not provide her with any information relating to that hearing, was himself not properly prepared for the hearing, and that she felt undue pressure to accept an unreasonable and inequitable settlement.
After a hearing, the circuit court denied the motion to
reopen. In its ruling, the court
borrowed the criminal law doctrine of ineffective assistance of counsel, see
Strickland v. Washington, 466 U.S. 668 (1984), and noted that divorce
counsel did not testify at the hearing on Paula’s motion to reopen. Because the testimony of trial counsel is
essential to an ineffective assistance determination, see State v.
Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979), the
court concluded that the absence of counsel’s testimony precluded relief from
the divorce judgment. Paula appeals.
The circuit court
erroneously applied the criminal law doctrine of ineffective assistance of
counsel to this divorce case.
Nevertheless, we may sustain the circuit court’s decision for other
reasons. See Bence v. Spinato,
196 Wis.2d 398, 417, 538 N.W.2d 614, 620 (Ct. App. 1995). We conclude that a § 806.07, Stats., motion was not the proper
vehicle for seeking relief due to divorce counsel’s allegedly deficient
representation.
In Village of
Big Bend v. Anderson, 103 Wis.2d 403, 404, 308 N.W.2d 887, 888 (Ct.
App. 1981), we held that a party in a civil case who alleges poor performance
by trial counsel has a remedy by way of an action for legal malpractice against
counsel, not by reversal of the adverse judgment, which would be a remedy
against the opposing party. “A civil
litigant whose rights have been adversely affected by a negligent attorney may
hold that attorney liable for any monetary losses caused by the
negligence.” Id. at 406,
308 N.W.2d at 889. We apply the holding
of Village of Big Bend to Paula’s § 806.07 motion alleging
poor performance of her divorce counsel.[3]
By the Court.—Order affirmed.
This opinion will not be published. See Rule 809.23(1)(b)5, Stats.
[1] We acknowledge that the circuit court did reopen the judgment for the limited purpose of valuing Thomas’s 401(k) plan. The parties have advised the court that a settlement has been reached regarding this asset.
[2] The written judgment was not entered until February 4, 1997, after Paula’s previous counsel failed to prepare the document as ordered in August 1996.
[3] The discussion in Village of Big Bend v. Anderson, 103 Wis.2d 403, 408, 308 N.W.2d 887, 890 (Ct. App. 1981), regarding the possibility of seeking relief under § 806.07, Stats., due to trial counsel’s deficient representation acknowledges that a court may reopen a judgment in the interests of justice. But the rationale behind Village of Big Bend is that an innocent opposing party should not bear the burden of a new trial because the other party’s lawyer was ineffective. The facts must be so unconscionable that the interests of justice demand overriding the Village of Big Bend policy. That has not been raised or argued here.