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COURT OF APPEALS
DECISION
DATED AND FILED
July 24, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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In re the Paternity of K.J.P.:
Jerome E. Parrish,
Petitioner-Respondent,
v.
Diana L. Mendoza,
Respondent-Appellant.
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APPEAL
from an order of the circuit court for Richland County: Edward
Leineweber, Judge. Affirmed in part; reversed in part and cause remanded with directions.
Before
Higginbotham, P.J., Dykman and Lundsten, JJ.
¶1 PER CURIAM. Diana Mendoza appeals an order
denying her motion for relief from two child support orders. Mendoza
contends the trial court erroneously exercised its discretion by failing to
apply the proper criteria and by basing its decision on its own experience
rather than on facts of record. We agree
that the trial court erred with respect to one of the child support orders and
certain aspects of the other order, and therefore reverse in part and remand
with directions that the trial court exercise its discretion in a manner
consistent with this opinion.
BACKGROUND
¶2 The present appeal arises out of an underlying paternity
action dating back to 1992, which determined Jerome Parrish to be the father of
Mendoza’s
daughter, Kelli. In 2000, Parrish
obtained primary placement of the child by stipulation. Mendoza
moved to regain primary placement in August 2004, but failed to appear at a
status hearing or to pay the guardian ad litem deposit. Meanwhile, Parrish moved for an unspecified
amount of child support. After Mendoza failed to appear at another hearing, the trial
court issued an order dated January 5, 2006, which dismissed Mendoza’s motion for a change of placement
due to a failure to prosecute, and also ordered her to pay $151.75 per month in
child support, based on 17% of a full-time, minimum wage job. This court affirmed the January 5, 2006 default
order on direct appeal.
¶3 On October 10, 2006, while her appeal was still pending, Mendoza moved to modify
the child support order pursuant to Wis.
Stat. § 767.32 (2003-04).
The appellate record does not include a transcript from the modification
hearing, and docket entries suggest that the transcript may never have been
produced. However, minutes from the
hearing indicate that the court admitted one exhibit which has been included in
the appellate record. The exhibit was a
notice of an award from the Social Security Administration informing Mendoza that she was
eligible for a monthly disability benefit from September 1, 2006, onward. The ALJ who considered Mendoza’s
claim rejected an assertion that her back problems met the disability criteria,
but found that Mendoza’s
impairments due to a bipolar disorder were “severe” according to the disability
criteria, and that “despite medication management and ongoing therapy, she
continues to exhibit numerous symptoms, which affect her ability to perform
even basic work activity.” The ALJ relied upon the report of Dr. Ashraf Ahmed
stating that Mendoza
was “very unstable” and that her symptoms included
appetite disturbance/weight change; illogical
thinking/loosening of association; decreased energy/chronic fatigue;
generalized persistent anxiety; somatization unexplained by organic
disturbance; pathological dependence/passivity; difficulty thinking or concentrating;
sleep disturbance; personality change; manic syndrome; recurrent panic attacks;
anhedonia; hostility/irritability; mood disturbances/lability; and social
withdrawal/isolation.
On November 30, 2006, the trial
court issued a decision reducing the child support order to $64 per month, and
set up a schedule for Mendoza
to pay $1,000 in arrears by March 1, 2007, another $1,000 in arrears by
September 1, 2007, and the balance of her arrears by December 11, 2007.
¶4 On April 26, 2007, Mendoza
filed a motion under Wis. Stat.
§ 806.07 (2005-06)
seeking relief from both the January 5, 2006 and November 30, 2005 orders.
The trial court denied the motion, concluding that there had been no
substantial change in circumstances since the last order and that Mendoza had failed to
establish any other basis for relief under § 806.07.
STANDARD
OF REVIEW
¶5 Wisconsin Stat.
§ 806.07(1) allows the trial court to reopen an order or judgment for
various reasons, including:
(g) It is no
longer equitable that the judgment should have prospective application; or
(h) Any other
reasons justifying relief from the operation of the judgment.
Subsection (g) applies when there has been a change in
circumstances. Connor v. Connor, 2001 WI
49, ¶40, 243 Wis.
2d 279, 627 N.W.2d 182. The catchall
provision in subsection (h) requires a showing of “extraordinary circumstances”
taking into account:
whether the judgment was the result of the
conscientious, deliberate and well-informed choice of the claimant; whether the
claimant received the effective assistance of counsel; whether relief is sought
from a judgment in which there has been no judicial consideration of the merits
and the interest of deciding the particular case on the merits outweighs the
finality of judgments; whether there is a meritorious defense to the claim; and
whether there are intervening circumstances making it inequitable to grant
relief.
Id.,
¶41 (citation omitted). We review the
trial court’s decision whether to reopen a judgment under the standard for
discretionary decisions, considering whether the trial court reasonably
considered the facts of record under the proper legal standard. Nelson v. Taff, 175 Wis. 2d 178, 187, 499
N.W.2d 685 (Ct. App. 1993).
DISCUSSION
¶6 Although the parties have largely organized their briefs
around the subdivisions of Wis. Stat.
§ 806.07 at issue, we believe it makes more sense to organize our own
analysis around each of the two orders from which Mendoza sought relief.
January 5, 2006 Order
¶7 The January 5, 2006 order denied Mendoza’s motion to modify placement based on
her failure to prosecute, and granted Parrish’s counter-motion for child
support. It went on to set support in
the amount of $151.75 per month based on an application of the standard
guideline amount to the minimum wage, without taking any evidence. Because this order was subsequently amended,
it is no longer in effect. Therefore, Wis. Stat. § 806.07(g) dealing
with prospective application is not applicable, and the only question is
whether the order should have been set aside under subsection (h) based on
extraordinary circumstances, thus vacating the arrearages that accumulated
while the order was in effect.
¶8 The trial court did not address four of the five extraordinary
circumstances factors—namely, whether Mendoza had deliberately acquiesced in
the decision she was attempting to set aside; whether she had been afforded the
effective assistance of counsel; whether the trial court had considered the
merits of the decision before entering the order; and whether there were any
subsequent circumstances which would render relief inequitable. See
Connor,
243 Wis. 2d
279, ¶41. Although the court did
consider one factor—whether Mendoza
in fact had a meritorious position to advance—its analysis of that factor was
flawed for reasons we will discuss below and was not weighed against the other
factors. Furthermore, the trial court’s
statement that resolution of the motion was “not about” Mendoza’s lack of counsel was an error of
law, since the effective assistance of counsel is one of the relevant factors. Therefore, the record does not demonstrate
that the circuit court properly exercised its discretion by applying the
relevant law when denying relief from the January 5, 2006 order.
¶9 We may affirm a decision even when the trial court has relied
upon the wrong rationale, if we can determine for ourselves that the facts of
record provide a basis for the trial court’s decision. State v. Gray, 225 Wis.
2d 39, 51, 590 N.W.2d 918 (1999).
However, we see no such basis here.
¶10 The first extraordinary circumstance factor favors relief
because the order setting child support was entered over Mendoza’s objection, not as the result of a
stipulation or any other deliberate choice on her part. Nor does the record show that Mendoza’s failure to appear at the child support hearing
was deliberate; she called to explain that her car had broken down in Appleton on her way to the hearing from Green Bay.
¶11 The second factor favors relief because Mendoza did not have
the benefit of any counsel—much less effective representation—despite her
ongoing attempts to obtain an attorney.
We note that the inability to afford counsel is not determinative, in
and of itself. However, Mendoza’s lack
of counsel takes on added significance here, where Mendoza had documented
mental health issues and was also unable to be present at the hearing herself,
but was apparently subsequently able to obtain pro bono assistance.
¶12 The third factor also favors relief because the trial court
entered an order on child support without taking any evidence on the financial
circumstances of either party.
Furthermore, it set child support in an amount that had not been
specified in the motion, giving Mendoza
no notice that she would be required to pay an amount in excess of the
guideline percentage of her actual income based upon an imputed earning
capacity. In other words, the merits of
the child support motion had plainly not been litigated before the trial court
entered the January 5, 2006 order.
¶13 With regard to whether there was a meritorious defense to
Parrish’s oral request to have child support calculated based on the minimum
wage, the trial court essentially stood by its original earning capacity
decision, stating:
I
think that the evidence in this case does today and always has supported the
finding that Ms. Mendoza is capable of seeking and maintaining some form of
gainful employment. That is established
in the record of Dr. Dervish [who had concluded that Mendoza’s disc problems
did not preclude employment involving only light lifting], it’s established in
her own testimony [that Mendoza was planning to seek employment because she
could not pay her bills] ….
Furthermore,
ADHD is not a disability in and of itself on this record simply because it
might exist to some extent nor is a bipolar condition. There are plenty of people who are gainfully
employed who wrestle with ADHD and [have a] bipolar condition. To simply say that you have these conditions
doesn’t mean that you are not capable of maintaining gainful employment….
¶14 We agree with Mendoza
that this discussion shows the trial court improperly substituted its own life
experience for facts of record. The
court had accepted the Social Security Administration’s disability decision
into evidence at a prior hearing, and the determination contained therein that
Mendoza suffered from a severe bipolar condition that prevented her from
maintaining gainful employment was uncontested by any other testimony or
evidence. It is true that a court is not
required to accept the credibility of even uncontested evidence. Here, however, the trial court did not cite
any specific reason it had to question the credibility of the disability award
or the expert opinion upon which it was based.
Instead, the court simply offered its own opinion that a bipolar
condition does not constitute a disability and that “plenty of people” with
bipolar disorder are gainfully employed.
However, the severity of an individual’s bipolar condition is a matter
of expert medical opinion, not common knowledge. Similarly, the percentage of people in the
general population who are able to maintain gainful employment while suffering
the same degree of bipolar symptoms as Mendoza is a factual issue which cannot
be determined in the absence of any evidence in the record on that
subject. See State v. Sarnowski, 2005 WI App 48, ¶¶15-16,
280 Wis. 2d
243, 694 N.W.2d 498 (court erred in using personal experience obtaining
carpenter as measure for availability of carpentry work in community).
¶15 In addition, we note that the trial court reduced the child
support award from $151.75 to $64 per month after taking evidence on the matter
on November 7, 2006. While we do not
have the transcript from that hearing, such a substantial reduction suggests in
and of itself that Mendoza
did in fact have some meritorious defense to the amount of child support
imposed in the initial order.
¶16 Finally, we do not see any facts in the record that suggest
there are intervening factors which would make relief from the January 5, 2006 child
support order inequitable. For instance,
there is no information that Mendoza’s
actual income has increased or that Parrish’s income has declined. The trial
court did note that Mendoza
testified that she was considering looking for employment. A willingness to look for employment, however, has no bearing on the expert opinion
that Mendoza’s
bipolar disorder is severe enough to prevent her from maintaining gainful employment.
¶17 In sum, we see no facts of record which would support denying Mendoza’s motion to set
aside the January 5, 2006 order under Wis.
Stat. § 806.07(1)(h).
Therefore, we remand with directions that the trial court grant relief
from that order and vacate any arrearages which accumulated between January 5,
2006 and October 6, 2006—the effective date of the subsequent child support
order.
November 30, 2006 Order
¶18 The November 30, 2006 order reduced the child support award to
$64 per month. Again the trial court did
not discuss the factors under subsection (h) when refusing to grant relief from
that order. However, because we do not
have the transcript from the hearing that preceded the November 30, 2006 order,
we cannot tell how many of the “extraordinary circumstances” factors may be
present. For instance, we do not know
what, if any, amount of child support Mendoza
may have testified that she would be able to pay, or upon what facts the trial
court relied in setting the amount that it did.
Since it appears from Mendoza’s arguments both in the trial court and on
appeal that the November 30, 2006 award may have been close to 17% of Mendoza’s
actual non-exempt income at that time as shown on her own exhibit, the imputed
income problem discussed above would not appear to come into play, and it is
not clear what other defense she may have had on the merits. We therefore assume that the record supports
the reduced child support award on its merits.
See Fiumefreddo v. McLean, 174 Wis. 2d 10, 27, 496 N.W.2d 226 (Ct. App.
1993) (“[W]hen an appellate record is incomplete in connection with an issue
raised by the appellant, we must assume that the missing material supports the
trial court’s ruling.”). Accordingly, we
affirm the trial court’s refusal to grant retroactive
relief under Wis. Stat.
§ 806.07(1)(h) from the November 30, 2006 order—aside from the accumulated
arrears incorporated from the prior order which we have already discussed. In other words, there has been no showing on
this record that Mendoza is entitled to relief from the $64 child support award
in effect from October 6, 2006 (the date she moved to modify the original
award) until April 26, 2007 (the date she moved for relief from both child
support awards).
¶19 We next consider whether the trial court properly refused to
grant prospective relief under Wis. Stat. § 806.07(1)(g) from the
November 30, 2006 child support order.
As mentioned above, that subsection applies when there has been a change
of circumstances that render it no longer equitable that the order has prospective
effect.
¶20 Mendoza
testified at the hearing that her cognizable income had decreased from $512 to
$419 a month between the November 7, 2006 and August 14, 2007 hearings. That represents an 18% drop in income. The trial court seems to have reasoned that
this change in actual income was immaterial because Mendoza could still be expected to seek
employment. We have already explained
why that finding was contrary to the undisputed fact of record that Mendoza was receiving
government disability payments because her severe bipolar disorder rendered her
unable to maintain employment.
Furthermore, although we cannot know the specific calculation the court
used in reaching the $64 figure without the missing transcript, the fact that
the figure is well below the original minimum wage calculation the court
employed suggests that the court may already have taken Mendoza’s actual
cognizable income into account in some fashion when setting the last child
support order. If that is the case, then
the significant change in Mendoza’s
income would indeed appear to represent a change in circumstances. We conclude that the record does not show
that the trial court properly exercised its discretion in deciding whether to
grant prospective relief from the November 30, 2006 order pursuant to Wis. Stat. § 806.07(1)(g). On remand, the trial court should reconsider
the issue of prospective relief based upon Mendoza’s actual cognizable income for child
support purposes.
CONCLUSION
¶21 In sum, we affirm the trial court’s refusal to grant
retroactive relief from the November 30, 2006 order, but reverse its refusal to
grant retroactive relief from the January 5, 2006 order and its refusal to grant
prospective relief from the November 30, 2006 order. We therefore remand with directions that the
court set aside any arrears that are attributable to the January 5, 2006 order
and reconsider the appropriate amount of child support that should have been
paid from April 26, 2007, onward, based on Mendoza’s actual cognizable income.
By the Court.—Order affirmed in
part; reversed in part and cause remanded with directions.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.