COURT OF
APPEALS DECISION DATED AND
RELEASED September
12, 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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-2907
No. 94-3269
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
In Re
the Marriage Of:
MARY
C. VOLKER f/n/a MARY C. PENTINMAKI,
Petitioner-Respondent,
v.
OLIVER
A. PENTINMAKI, JR.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Dane County: MICHAEL N. NOWAKOWSKI, Judge.
Affirmed and cause remanded.
Before
Eich, C.J., Dykman, P.J., and Robert D. Sundby, Reserve Judge.
PER
CURIAM. Oliver A. Pentinmaki, Jr.,
appeals from an order disposing of several motions related to his divorce and
the support and custody of his children.
Pentinmaki's
ex-wife, Mary Volker, and the guardian ad litem have made motions for costs for
a frivolous appeal under Rule
809.25(3), Stats. Pentinmaki, alleging misstatements of fact
by the guardian, made a motion for sanctions against the guardian under
§ 802.05(1)(a), Stats. Because the record supports the trial
court's order, we affirm. We also hold
that Pentinmaki's appeal is frivolous under Rule 809.25(3),
and we deny Pentinmaki's motion for sanctions as meritless.
BACKGROUND
Pentinmaki
and Mary Volker were divorced in Milwaukee County in 1990. After the divorce, Pentinmaki filed numerous
motions and appeals in the Milwaukee County Circuit Court relating to the
divorce, including motions regarding a new trial, child custody and visitation,
child support, and maintenance. Among
other things, the motions challenged the credibility of the witnesses at the
divorce trial.
On
March 29, 1993, the Milwaukee County Circuit Court, finding that Pentinmaki was
attempting to relitigate issues which had already been decided, issued a
post-divorce order prohibiting him from bringing any future motions without the
leave of the court.[1] We affirmed the order in Volker v. Pentinmaki, Nos.
92-2609, 93-1070, 93-1434, unpublished slip op. (Wis. Ct. App. Apr. 19, 1994).
Subsequent
to the Milwaukee order, both parties moved to Dane County and Pentinmaki
brought several more divorce-related actions in Dane County. This appeal concerns a series of motions he
filed from late 1993 through early 1994 seeking: (1) a custody study by the
Dane County Family Court Counseling Service and waiver of the study fee; (2) a
one-time change in his physical placement date with his children; (3) a
permanent change in physical placement from Saturday to Sunday; and (4)
modification of child support.
On
June 30, 1994, the Dane County Circuit Court denied Pentinmaki's motions in an
oral decision. The court found that
Pentinmaki was aware of the prohibition of future motions in the Milwaukee
County order, but denied the guardian's motion for sanctions, reasoning that
Pentinmaki, appearing pro se, might not have understood that the
Milwaukee County order would also be enforced in Dane County. As before, a major part of Pentinmaki's
"case" involved challenges to the credibility of the trial
witnesses. The court, noting that these
issues had been fully litigated, warned
him that if he continued to raise these issues in subsequent motions, the court
would deem the motions frivolous and impose all costs and fees against him.
The
court's decision was reduced to a written order on September 20, 1994, which:
(1) prohibited Pentinmaki from filing any non-emergency motions relating to
divorce issues before January 1, 1997, without first obtaining the trial
court's written consent; (2) confirmed and continued the Milwaukee County order
requiring Pentinmaki to pay the guardian's fees in the Milwaukee County
proceedings; (3) required him to pay the guardian's fees in the Dane County
proceedings; and (4) prohibited him from conducting any litigation-related
interviews with his children. The court
scheduled an evidentiary hearing on Pentinmaki's motion to modify child
support.
At
the support hearing, held on October 14, 1994, Pentinmaki offered no evidence
in support of his motion, claiming that the portion of the September 20, 1994,
order prohibiting him from re-litigating witness credibility prevented him from
presenting evidence relevant to his support-modification motion. The trial court denied the motion for
failure of proof.
A
few weeks later, Pentinmaki wrote to the trial court asking for a hearing date
on motions he intended to bring to amend the child-custody and placement
provisions of the original divorce judgment, to vacate the September 20, 1994,
order, and to have the court recuse itself from hearing further proceedings in
his case. On November 2, 1994, the
trial court, having determined that the motion to amend custody was not of an
emergency nature, issued an order allowing Pentinmaki to refile the motion with
an up-to-date affidavit after October 1, 1996 for a hearing to be scheduled
after January 1, 1997. The court denied
both the motion to vacate the order of September 20, 1994, and the recusal
request.
Pentinmaki
appeals from the September 20, October 14 and November 2, 1994, orders, each
involving several motions. We
consolidated the appeals.[2]
ANALYSIS
Pentinmaki first argues
that the trial court erroneously exercised its discretion by prohibiting him
from filing nonemergency motions in this case until January 1, 1997. He claims the order denies him due process.
He
made the same argument to us in his appeal from the 1993 Milwaukee County Court, and he does not
allege any change of circumstances in the interim, raise any new issues, or make
any new legal arguments.[3] In short, he has not presented us with any
reason to depart from our analysis in Volker of a trial court's
authority to enter such an order under the circumstances of Pentinmaki's
continued attempts to relitigate issues relating to his divorce.
A
trial court has "inherent power to protect itself against any action that
would unreasonably curtail its powers or materially impair its
efficiency." Jacobson v.
Avestruz, 81 Wis.2d 240, 245, 260 N.W.2d 267, 269 (1977) (citations
omitted). In addition, although an
individual has a due process right of access to the courts, Piper v.
Popp, 167 Wis.2d 633, 644, 482 N.W.2d 353, 358 (1992), that right is
not absolute and may be curtailed where a litigant abuses the court system. See
Support Sys. Int'l, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995)
(prohibiting prodigious litigator from filing noncriminal motions). Since
Pentinmaki began filing his serial post-divorce motions in 1990, three trial
court judges--two in Milwaukee and one in Dane County--found them to be
generally meritless and primarily designed to harass his former wife.
In
this case, after an extensive review of the record, the trial court concluded
that Pentinmaki was attempting to relitigate previously decided issues, the
volume and nature of his continuous stream of litigation interfered with the
court's ability to address legitimate issues in other pending litigation, and
Pentinmaki's refusal to accept the courts' rulings and decisions on issues
surrounding his divorce was negatively affecting the parties' children. We are satisfied that the trial court did
not erroneously exercise its discretion or its inherent powers, nor did its
orders violate Pentinmaki's due process rights.
Pentinmaki
next argues the trial court erroneously exercised its discretion and violated
his First Amendment rights when it warned him that any future attempt to
challenge the credibility of witnesses involved in prior proceedings would be
deemed frivolous, harassing, or would constitute over-litigation.[4] Because Pentinmaki has not referred us to
any authority in support of this argument, we need not consider it. State
v. Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992).
Pentinmaki
next claims the trial court erroneously exercised its discretion when it
considered the Milwaukee County Circuit Court's evaluation of his
"credibility" in issuing the Milwaukee order. We reviewed and affirmed the Milwaukee order
on a previous appeal; in doing so, we noted that the record in that proceeding
was "replete with Pentinmaki's lack of concern, hiding assets, shirking,
manipulation, lying, untruthfulness and unconcern for [his] children's best
interests." Volker v.
Pentinmaki, Nos. 92-2609, 93-1070, 93-1434, unpublished slip op. at 1
(Wis. Ct. App. Apr. 19, 1994).
Pentinmaki failed to persuade us that it was in any way unreasonable for
the trial court to rely on the Milwaukee County court's assessment of either
his motives or his credibility.
Pentinmaki
also argues the order prohibiting him from conducting litigation-related
interviews with his children infringes the children's First Amendment
rights. As before, he offers no supporting
authority for the argument and we need not consider it further. Pettit, 171 Wis.2d at 646, 492
N.W.2d at 642.
Finally,
Pentinmaki argues the trial court erred by requiring him to pay the guardian's
fees in the Dane County and Milwaukee County proceedings. We have held that a trial court does not
erroneously exercise its discretion by ordering one party to pay the guardian's
fees when the circumstances establish that the party is responsible for
"overtrial" of the case. Ondrasek
v. Ondrasek, 126 Wis.2d 469, 484, 377 N.W.2d 190, 196 (Ct. App.
1985). In this case, among other
things, the trial court found that Pentinmaki repeatedly filed motions for the
sole purpose of harassment. The
record--to say nothing of this court's and the Milwaukee and Dane County
courts' experience with Pentinmaki--amply supports that finding. We see no error in the trial court's order
requiring Pentinmaki to pay the guardian's fees.
MOTION FOR
FRIVOLOUS COSTS
Volker
and the guardian both move for costs under Rule
809.25(3)(c), Stats., authorizing
the imposition of costs where an appeal "was filed, used or continued in
bad faith, solely for purposes of harassing or maliciously injuring
another" or "was without any reasonable basis in law or equity and
could not be supported by a good faith argument for an extension, modification
or reversal of existing law." Rule 809.25(3)(c)(1), (2).
We
agree that Pentinmaki has prosecuted this appeal in bad faith. Such a determination requires consideration
of the litigant's subjective motives or intent, Tomah-Mauston
Broadcasting Co. v. Eklund, 143 Wis.2d 648, 659, 422 N.W.2d 169, 173
(Ct. App. 1988), which may be made by inferring intent from the acts and
statements of the litigant in light of the surrounding circumstances. Stern v. Thompson & Coates, Ltd.,
185 Wis.2d 220, 236-37, 517 N.W.2d 658, 664 (1994). We cannot, of course, find facts, but we can--and must--accept
reasonable inferences drawn by the trial court and facts found by the trial
court that are not clearly erroneous. Id.
Following
the original divorce judgment and Pentinmaki's appeal from that judgment, he
filed hundreds of motions in the trial court.
He brought eleven appeals and filed five additional petitions with this
court. He requested a John Doe hearing
and unsuccessfully attempted to obtain a restraining order against his former
wife--all in aid of his unflagging efforts to challenge by indirection the
findings and order of the Milwaukee County Circuit Court in the original
divorce proceedings. His arguments on
this appeal are without merit.
The
trial court found that Pentinmaki "is obsessed with perpetrating a pattern
of harassment" upon his former wife and "is absolutely insensitive to
the impact that this conduct continues to have on [his] minor children."
Two additional judges presiding over Pentinmaki's endless litigation noted that
he is "obsessed" with attempting to reopen and relitigate his
divorce.
Our
consideration of these factors leads us to conclude that the only reasonable
inference to be drawn from Pentinmaki's conduct in this case is that the appeal
was undertaken in bad faith for the purpose of harassing Volker. Accordingly, we award frivolous costs to
Volker and the guardian ad litem, and we remand to the trial court to
determine, under Rule 809.25(3), Stats., the fees and costs to be
charged against Pentinmaki.[5]
By
the Court.--Order affirmed and
cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] A subsequent Memorandum Decision and Order
issued by the court also required an affidavit of personal service signed by a
deputy sheriff before any correspondence, motions, or pleadings would be
accepted and reviewed by the court.
[2] Although
Pentinmaki lists eleven issues in his appellate brief, many are redundant. He presents, at most, five issues on appeal.
Pentinmaki
also challenges the trial court's denial of his motion to recuse itself, but
has provided no arguments or citation to authority in support of his
argument. We do not review it. "Generally, we do not consider
arguments broadly stated but never specifically argued." Fritz v. McGrath, 146 Wis.2d
681, 686, 431 N.W.2d 751, 753 (Ct. App. 1988).
[3] He
does argue that the Dane County Circuit Court's order, which allowed for
"emergency" motions, was too vague to be enforceable. However, he provides no citation to
authority or even examples illustrating how allowing for "emergency"
motions constitutes an erroneous exercise of discretion or a due process
violation.
[4] Pentinmaki
also asserts the trial court erroneously exercised its discretion by refusing
to vacate the order which, he claims, prevented him from supporting his motion for
child support. Because we hold that the
order itself was not erroneous, we need not consider the argument further.
[5] Pentinmaki
also moved for "sanctions" against the guardian for a violation of
§ 802.05(1)(a), Stats.,
requiring pleadings, motions and other papers to contain the name, state bar
number, telephone number and address of the attorney appearing in the
case. Any technical violation of that
provision is de minimis, and does not constitute grounds for any
sanction against the guardian.
Finally,
the guardian has requested that we enter an order prohibiting Pentinmaki from
filing future appeals. At this point,
at least, we are satisfied that the continuing trial court order barring him
from filing nonemergency orders until January 1997 is sufficient deterrence.