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COURT OF APPEALS DECISION DATED AND RELEASED August
31, 1995 |
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. 93-3406
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN RE
THE PATERNITY OF
TRAVIS
E. C.:
TRAVIS
E. C., BY HIS GUARDIAN
AD
LITEM DALE E. HUGHES,
Appellant,
v.
CARL
C.,
Respondent.
APPEAL
from orders of the circuit court for Sauk County: JOHN A. CURTIN, Judge. Vacated
and cause remanded with directions.
Before
Eich, C.J., Sundby and Vergeront, JJ.
PER
CURIAM. In this appeal, we decide that
a retired circuit court judge acting as a reserve judge but without assignment
may not enter findings of fact, conclusions of law and an order in an action
where he was the presiding judge before his retirement. We therefore vacate the order dismissing the
State's petition to determine the paternity of Travis E.C. and remand the cause
to the circuit court. On remand, the
circuit court may enter such findings, conclusions and order as it considers
are supported by the record. Because §
757.08, Stats., permits a
successor judge to continue proceedings begun before his or her predecessor,
the circuit court may hold such hearings and order such additional briefing as
it considers appropriate.
On
March 19, 1993, the Sauk County Circuit Court, Hon. Robert F. Curtin presiding,
orally granted respondent's motion to dismiss the State's petition to determine
Travis's paternity. The court ruled
that the State, acting through the Sauk County Child Support Agency, had failed
to prosecute the action. The court
therefore dismissed the action pursuant to § 805.03, Stats.[1]
On
March 29, 1993, respondent submitted proposed Findings and Order For Dismissal
to the court. Travis's guardian ad
litem objected to the findings and submitted proposed amendments, to which
respondent objected. The parties filed
extensive letter briefs.
Judge
Curtin retired before he could act further.
However, on September 20, 1993, Judge Curtin, acting as a reserve judge
but without assignment, entered findings of fact, conclusions of law, and an
order dismissing the State's petition.
Travis, by his guardian ad litem, appeals. He raises several issues.
Because we conclude that Judge Curtin could not act in the matter
without assignment pursuant to § 751.03(1), Stats.,[2]
we do not reach the remaining issues.
The
respondent argues that Judge Curtin orally granted respondent's motion on March
19, 1993, and his entry of the September 20, 1993 order was a ministerial
act. See Comstock v. Boyle, 134 Wis.
613, 617, 114 N.W. 1110, 1111 (1908).
We conclude that Comstock applies only where it is clear
that the court intends that judgment will be entered on its oral decision. Here, the court allowed extensive letter
briefs arguing the merits of its decision and considered amended findings which
would have made the dismissal order applicable to the State and Travis's mother
but would not have dismissed Travis's claim with prejudice. Regardless of the trial court's intent when
it made its oral decision, there remained issues to be decided before the court
entered judgment. Indeed, the trial
court in its oral decision did not address the guardian ad litem's principal
argument--that Travis had not failed to prosecute this action diligently and
his claim could not be dismissed with prejudice under § 805.03, Stats.
Nor did the court address that argument in its findings, conclusions and
order entered September 20, 1993.
We
conclude that Judge Curtin's order of September 20, 1993, was not merely a
ministerial act which formalized a final decision made during his term of
office. The matter should have been
disposed of by Judge Curtin's successor, the Hon. Patrick J. Taggert, pursuant
to § 757.08, Stats.[3] Judge Taggert's memorandum decision entered
December 17, 1993, denying the guardian ad litem's motion for relief from Judge
Curtin's order, does not cure the defect in Judge Curtin's order.[4] Under § 757.08, Judge Taggert must exercise
his own discretion; his memorandum decision was a review of Judge Curtin's
decision. On remand, Judge Taggert
shall proceed in this matter as directed by § 757.08.
By
the Court.--Orders vacated and
cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Section 805.03, Stats., provides:
For failure of any
claimant to prosecute or for failure of any party to comply with the statutes
governing procedure in civil actions or to obey any order of court, the court
in which the action is pending may make such orders in regard to the failure as
are just, including but not limited to orders authorized under s. 804.12 (2)
(a). Any dismissal under this section
operates as an adjudication on the merits unless the court in its order for
dismissal otherwise specifies for good cause shown recited in the order. A dismissal on the merits may be set aside
by the court on the grounds specified in and in accordance with s. 806.07. A dismissal not on the merits may be set
aside by the court for good cause shown and within a reasonable time.
[2] Section 751.03(1), Stats., provides:
The chief justice
of the supreme court may assign any active supreme court justice, court of
appeals judge or circuit judge to serve temporarily as a judge of the court of
appeals or any circuit court to aid in the proper disposition of business in
that court. The chief justice of the
supreme court may designate and assign reserve judges under s. 753.075 to serve
temporarily in the court of appeals or the circuit court for any county. While
acting under a temporary assignment, an active or reserve justice or
judge may exercise all the authority of the court to which he or she is
assigned.
[3] Section 757.08, Stats.,
provides:
No process, proceeding or action, civil or
criminal, before any court of record shall be discontinued by the occurrence of
any vacancy in the office of any judge or of all the judges of such court, nor
by the election of any new judge or judges of any such court, but the persons
so elected shall have power to continue, hear and determine such process,
proceedings or action as their predecessors might have done if no new election
had been held.