COURT OF APPEALS DECISION DATED AND RELEASED September 14, 1995 |
NOTICE |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1327
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
MYRA LEVINE
(HEILPRIN),
Petitioner-Respondent,
v.
RICHARD HEILPRIN,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Dane County: JACK F. AULIK, Judge. Affirmed in part; reversed in part and
cause remanded with directions.
Before Eich, C.J.,
Dykman and Sundby, JJ.
PER
CURIAM. Richard Heilprin appeals from a postjudgment order in
this divorce action. The issues relate
to maintenance, arrearages, and contempt.
We reverse the contempt portion of the order, but otherwise affirm.
In the order appealed
from, the trial court terminated Heilprin's obligation to pay maintenance until
further order, held him in contempt and sentenced him to six months in jail for
his failure to pay maintenance arrearages of $61,578.40. The contempt was to be purgeable by payment
of $1,000 per month. We stayed the
contempt portion of the trial court's order pending appeal.
Contempt proceedings may
be either punitive or remedial. See
ch. 785, Stats. This proceeding was commenced on the motion
of Myra Levine, Heilprin's former spouse.
Heilprin argues that the proceeding was "unquestionably" punitive
because she sought his incarceration.
Because the proceeding was punitive, Heilprin argues, it was not
properly commenced by motion and he was not afforded the process due in such
proceedings. We reject the
argument. Imprisonment is available as
a sanction in a remedial contempt action.
Section 785.04(1)(b), Stats.
Heilprin argues that the
trial court erred in making its maintenance decision because it did not
consider Levine's need for maintenance and did not allow Heilprin discovery on
this issue, and because Levine was not available for cross-examination at the
hearing. However, Heilprin prevailed on
future payment of maintenance. Any
error was harmless.
Heilprin argues that the
trial court erred by terminating his maintenance obligation as of March 1,
1994, rather than as of January 1992, when he filed a motion to terminate
maintenance. That motion was never
ruled upon. The trial court found that
Heilprin had taken no action to pursue the earlier motion, and the court was
advised that the parties had mutually agreed not to pursue the issue. Heilprin concedes that the parties agreed to
adjourn the hearing that had been scheduled.
He argues, however, that it would be inequitable not to terminate
maintenance as of the earlier date, because the purpose of the adjournment was
to allow Heilprin's financial and personal situation to stabilize, thus sparing
the court the need to relitigate those issues within a short time. We reject the argument. It is not inequitable to hold Heilprin to
his decision not to pursue the earlier motion.
Heilprin argues that the
trial court erred by not expunging his maintenance arrearage. Maintenance arrearages cannot be revised
prior to the date the person receiving maintenance has been notified of the
petition to alter maintenance. Section
767.32(1m), Stats. Heilprin argues that it is contrary to the
legislature's intent to include maintenance in this statute, since the intent
was to "curb the outflow of public assistance for child support." He argues that it interferes with the trial
court's discretion in setting maintenance.
The legislature, however, unambiguously included maintenance in the
statute, and therefore we reject this argument.
Heilprin argues that the
statute prohibiting revision of arrearages, § 767.32(1m), Stats., should be applied only to
divorce judgments entered after its effective date, August 1, 1987. This divorce judgment was entered in
1985. However, the supreme court has
already decided that the statute applies to "arrearages which accrue, or
have accrued, pursuant to an order or judgment for support entered
[after] August 1, 1987." Schulz
v. Ystad, 155 Wis.2d 574, 582, 456 N.W.2d 312, 314 (1990) (emphasis
added). Heilprin's arrearages accrued
pursuant to a 1990 maintenance order.
His argument is meritless.
Heilprin argues that he
is unable to meet the purge provision of the contempt order. He argues that the trial court's order is
inconsistent in that the court finds that he is no longer able to pay
maintenance, yet it orders him to pay $1,000 per month to purge the
contempt. We agree. A purge condition must be one which the
contemnor is capable of fulfilling. State
ex rel. Larsen v. Larsen, 165 Wis.2d 679, 685, 478 N.W.2d 18, 20-21
(1992). Levine argues that Heilprin can
purge the contempt because "[a]ll he has to do is get a job!" However, this argument is not supported by
the court's findings. First, the trial
court has not made any finding that Heilprin is employable. To the extent the court addressed this
issue, it rejected such a finding:
"His ability to earn significant income is speculative based upon
his age and qualifications."
Second, it is not at all clear that, should Heilprin become employed,
any of his earnings would be available to purge the contempt. The parties do not dispute that he owes many
thousands of dollars in federal taxes.
Therefore, we conclude that the contempt order must be reversed because
it sets a purge condition which, on the facts before the court, Heilprin is not
able to meet.
Finally, Heilprin argues
in one paragraph that the trial court erred in giving Levine a lien on his
pension plan because the plan is "an I.R.S., ERISA qualified,
non-assignable plan," which presents "a federal question" under Patterson
v. Shumate, 504 U.S. 753 (1992).
The relevance of this case is not immediately apparent. We do not further address this issue because
it has been inadequately briefed. State
v. Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642 (Ct. App. 1992).
In summary, we reverse
the contempt portion of the order appealed from because it sets a purge
condition that the contemnor is, on the evidence adduced, unable to meet. We affirm the order in all other
respects.
Both parties have
prevailed in this appeal. No costs to
either party.
By the Court.—Order
affirmed in part; reversed in part and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.