COURT OF APPEALS
DECISION
DATED AND FILED
June 26, 2008
David R. Schanker
Clerk of Court of Appeals
|
|
NOTICE
|
|
|
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.
|
|
Appeal No.
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
DISTRICT IV
|
|
|
|
|
In re the marriage of:
Cora L. Johnson v. Scott G. Johnson:
Mark Johnson,
Appellant,
v.
Cora L. Johnson,
Respondent.
|
|
|
|
|
|
|
|
APPEAL
from an order of the circuit court for Waupaca County: philip
m. kirk, Judge. Affirmed.
Before Higginbotham, P.J., Lundsten and Bridge, JJ.
¶1 PER CURIAM. Mark Johnson appeals an
order vacating a divorce judgment granted to Cora and Scott Johnson. Mark argues that the circuit court lacked
jurisdiction to vacate the judgment. Alternatively,
Mark argues that there was insufficient evidence to establish that Cora was not
a resident of Waupaca
County for the thirty
days preceding commencement of the divorce action. Mark also contends that judicial and equitable
estoppel should have barred the circuit court from vacating the judgment. Finally, Mark argues that the circuit court’s
decision should be overturned on public policy grounds. We reject Mark’s arguments and affirm the
order.
Background
¶2 Cora filed for divorce in Waupaca County
on January 17, 2006. Between the filing
of the divorce and the divorce judgment, Scott executed a Will directing that
his estate be awarded to Nicole Stanles, Scott’s step-daughter and Cora’s
natural born daughter. Scott also
appointed Stanles as executor of the estate, with Cora named as an alternate
executor. The couple were ultimately
divorced on September 7, 2006, and Scott died on October 6, 2006. After Stanles declined to act as executor for
the estate, Cora, as the named alternative, consented.
¶3 Cora moved to admit the Will into probate, and Mark Johnson,
Scott’s father, objected to admission of the Will as well as Cora’s appointment
as executor. The estate then moved to
reopen and vacate the divorce judgment for lack of jurisdiction, on the ground
that Cora was not a resident of Waupaca
County for thirty days
preceding the filing of the divorce petition.
The circuit court granted the motion to vacate, and this appeal follows.
Discussion
¶4 Mark argues that the circuit court lacked jurisdiction to
vacate the judgment of divorce. Citing Pettygrove
v. Pettygrove, 132 Wis. 2d 456, 393
N.W.2d 116 (Ct. App. 1986), and Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d
128 (1993), Mark contends that the court’s jurisdiction over the divorce matter
terminated upon Scott’s death. Pettygrove
and Cox,
however, are distinguishable on their facts.
¶5 In Pettygrove, the husband in a divorce
action died approximately one hour before the divorce judgment was
rendered. Pettygrove, 132 Wis. 2d at 458. The Pettygrove court concluded that “a
nonadjudicated divorce action does not survive the death of one of the
parties.” Id.
In Cox, Debbie Williams was nominated to serve as her step-child’s
guardian under her deceased husband’s will.
Cox, 177 Wis.
2d at 438. After her husband died,
Williams filed a petition for visitation in the divorce action between her
husband and his ex-wife. Id. at 437-38. Our supreme court ultimately affirmed the
circuit court’s denial of Williams’ petition.
Acknowledging that jurisdiction over divorce actions terminates upon the
death of one of the parties, the Cox court concluded: “It follows … that the circuit court’s postjudgment
authority over visitation [of the child] expired upon Dan’s death.” Id.
at 440.
¶6 The present case does not involve a situation where the court
granted a divorce judgment or otherwise sought to modify issues arising from a
divorce judgment after a party’s death.
Rather, the circuit court here addressed whether it had jurisdiction to
issue the divorce in the first instance.
We discern no error. Pursuant to Wis. Stat. § 767.301 (2005-06),
“[n]o action for divorce or legal separation … may be brought unless at least
one of the parties has been a bona fide resident of the county in which the
action is brought for not less than 30 days next preceding the commencement of
the action.” Fulfillment of the residency
requirement is a condition precedent to commencement of the divorce
action. Siemering v. Siemering,
95 Wis. 2d
111, 114-15, 288 N.W.2d 881 (Ct. App. 1980).
If the condition was not met, the action was never commenced. Id.
at 115.
¶7 Mark nevertheless argues that there was insufficient evidence
to establish that Cora was not a resident of Waupaca County for the thirty days
preceding commencement of the divorce action.
We disagree. Cora testified at
the motion hearing that she resided with Scott at their residence in Portage County
until “probably” mid-January 2006. Cora
then moved to a house in Waupaca
County. The court heard evidence showing that Cora
applied for a post office box in Waupaca
County on January 11,
2006. Cora’s cable television was
scheduled for installation on January 13, 2006, and her gas service began on
January 5, 2006. The tenant that
preceded Cora in the Waupaca
County house testified
that he did not move out of the house until January 1, 2006. Three witnesses testified that they helped
Cora move from the Portage County house to the Waupaca County
house sometime between the beginning to the middle of January 2006. Based on the evidence and Cora’s testimony,
the court found that Cora was not a bona fide resident of Waupaca County
for the requisite thirty days preceding the January 17, 2006 commencement of
the divorce proceedings.
¶8 Mark argues that although there is evidence establishing that
Cora resided in Waupaca County in early January 2006, there is no evidence
that Cora did not live in Waupaca
County prior to that
time. To the contrary, as noted above, Cora
testified that she resided with Scott in Portage County
until approximately mid-January 2006.
Further, witnesses testified that they helped Cora move from Portage County
to Waupaca County sometime between the
beginning to the middle of January 2006.
This evidence supports Cora’s claim.
To the extent Mark challenges the witnesses’ credibility, the circuit
court is the ultimate arbiter of both the credibility of the witnesses and the
weight to be given each witness’s testimony.
Pindel v. Czerniejewski, 185 Wis. 2d 892, 898, 519 N.W.2d 702 (Ct. App. 1994).
¶9 Mark also contends that judicial and equitable estoppel
should have barred the court from vacating the judgment. As Mark concedes, the doctrine of judicial
estoppel is intended to protect against a litigant playing “fast and loose with
the courts” by asserting inconsistent positions. See State v.
Fleming, 181 Wis.
2d 546, 557, 510 N.W.2d 837 (Ct. App. 1993).
Here, Cora testified that she had an eleventh-grade education and later
obtained her G.E.D. Cora further
testified that she did not know what “commencement” meant and has “a hard time
understanding lawyers.” The court
ultimately concluded:
[W]hen I hear her say that she doesn’t speak very good
lawyer language, that she doesn’t understand, that she just relies upon what
her attorney tells her, she doesn’t read documents before she signs them, she’s
one of those people that I believe that about.
The circuit court’s findings
demonstrate that Cora was not attempting to play fast and loose with the court.
Turning to Mark’s equitable estoppel
claim, “[t]he elements for equitable estoppel include (1) an action or non-action
that induces (2) reliance by another, either in the form of action or
non-action, (3) to his or her detriment.”
Russ v. Russ, 2007 WI 83, ¶37, 302 Wis. 2d 264, 734 N.W.2d 874. Mark does not explain, however, how it is
that Scott relied to his detriment on the divorce judgment. We therefore reject this argument.
¶10 Finally, Mark argues that the circuit court’s decision should
be overturned on public policy grounds.
Mark intimates that an affirmance of the circuit court’s order in this
case will somehow place undue influence on what he describes as “the previously
insignificant issue of residency.” Mark
lists a number of hypothetical scenarios he thinks will occur if we do not rule
in his favor and further emphasizes the impact this case may have on the
probate proceeding. As noted above,
however, fulfillment of the residency requirement is a condition precedent to commencement
of the divorce action. Siemering,
95 Wis. 2d at
114-15. A court must be able to reopen
and vacate a divorce judgment that was a nullity in the first instance. Mark’s arguments for a blanket rule to the
contrary are unfounded.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.