COURT OF APPEALS DECISION DATED AND RELEASED January 11, 1996 |
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. |
Nos. 94-1470
94-2426
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN THE MATTER OF THE
GUARDIANSHIP
AND PROTECTIVE
PLACEMENT OF
JIMMIE L., AN ADULT:
TERESA L.,
Petitioner-Respondent,
v.
SAUK COUNTY,
Respondent-Appellant.
APPEALS from an order of
the circuit court for Sauk County:
JAMES EVENSON, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER
CURIAM.
"Home is the place where, when
you have to go there,/They have to take you in."
--Robert Frost,
"The Death of the Hired Man."
At
issue in this appeal is where in Wisconsin Jimmie L. can be said to have made
his home before his brain injury in Florida. On previous appeal, and on
subsequent remand, this court and the circuit court held that his place of
residence is Sauk County.
Sauk County now appeals
from an order entered by the circuit court establishing a Wisconsin
guardianship and protective placement for Jimmie L. Sauk County argues that the circuit court erred by denying its
motion for relief from judgment, §§ 805.15(3) and 806.07, Stats., and that the circuit court
failed to follow our directions on
remand. We conclude that the circuit
court properly exercised its discretion on remand. We therefore affirm.[1]
BACKGROUND
This is the second
appellate proceeding concerning Jimmie L.
As
a result of a 1993 accident in Florida, Jimmie L. became brain-damaged and was
adjudged incompetent. A guardian was
appointed for him in Florida. His
ex-wife, Teresa L., commenced an action in Sauk County Circuit Court for a Sauk
County based guardianship and protective placement. The circuit court denied Teresa L.'s petition by deferring, on
full faith and credit grounds, to the Florida adjudication which the Sauk
County circuit court read as establishing that Jimmie L. was domiciled in
Florida at the time of the accident.
This court reversed the circuit court on the grounds that it had failed
to independently exercise its discretion, and that the full faith and credit
clause did not require the circuit court to acquiesce to the Florida
determination. Teresa L. v. Sauk
County, No. 93-2826, unpublished slip op. (Wis. Ct. App. Dec. 30,
1993).
In our opinion, we noted that "[t]he
record supports the circuit court's implied conclusion that just before he went
to Florida, Jimmie L. was a resident of Sauk County." (Emphasis
added.) Our opinion goes on to recite
that Jimmie L. had announced a plan to reside in Sauk County, and had taken
certain steps towards fulfilling that plan, such as residing for a time in
Baraboo in the same apartment complex as Teresa L. and their children, and
making a child support payment through the Sauk County clerk of court.
We noted that Jimmie L.
had left Sauk County for Florida in the fall of 1992, with the intent to secure
employment in hurricane relief, and intended to return to Sauk County in the
spring of 1993 to be near Teresa and their children. We concluded that
"the only reasonable inference ... is that he intended to return to Wisconsin
when the work was done.... We conclude
on the basis of the record before us that the presumption that Jimmie L.
intended to continue his Sauk County residence has not been
overcome." (Emphasis added.)
We remanded the matter
to the circuit court with directions to hear Teresa L.'s petition for
guardianship and protective placement, and to dispose certain corollary
matters. On remand, Sauk County moved
for relief from the original judgment and for a new hearing on jurisdiction and
venue. The circuit court denied the
motions.
Before the circuit
court, and again before this court, Sauk County argues that in the fall of
1992, just before he moved to Florida, Jimmie L. was actually a resident of
Rock County, Wisconsin. Sauk County
argues that it only recently discovered Jimmie L.'s Rock County connection and
therefore could not have presented this evidence to the circuit court during
the prior proceedings. Sauk County
argues that the circuit court erred in denying its motion. We disagree.
Citing Combs v.
Peters, 23 Wis.2d 629, 635, 127 N.W.2d 750, 753-54 (1964), the circuit
court held that the following five criteria determine whether to grant a new
trial on the basis of newly discovered evidence. First, the evidence must have come to the moving party's
attention after trial; second, the moving party must not have been negligent in
seeking to discover it; third, the evidence must be material to the issue;
fourth, the testimony must not be merely cumulative to the testimony introduced
at trial; and fifth, it must be reasonably probable that a different result
would be reached upon a new trial.
The circuit court denied
Sauk County's motion mainly on the fifth ground. As stated above, we concluded that the presumption that Jimmie L.
had intended his Sauk County residence to continue had not been overcome. The circuit court correctly noted that Sauk
County's affidavit about Jimmie L.'s alleged Rock County residency does not
relate to the period just before Jimmie L. left for work in Florida.
The circuit court
correctly interpreted our decision. Our
previous decision established that the critical period for establishing Jimmie
L.'s residency was just before he left Sauk County for temporary hurricane
relief work in Florida, and the other critical fact was his clearly stated
intent to reside in Sauk County. The
circuit court correctly concluded that a different result would not probably
result from a new trial at which Sauk County could present evidence of Jimmie
L.'s purported Rock County residency at a time previous to his Sauk County
residency. Combs v. Peters,
23 Wis.2d at 635, 127 N.W.2d at 753-54.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.