|
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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0779
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN RE
THE MARRIAGE OF:
MARJORIE
(GRIMES) MOUNT,
Petitioner-Respondent,
DODGE
COUNTY CHILD SUPPORT AGENCY,
Respondent,
v.
DENNIS
GRIMES,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Dodge County: ANDREW P. BISSONNETTE, Judge.
Affirmed.
Before
Gartzke, P.J., Dykman and Vergeront, JJ.
VERGERONT,
J. Dennis Grimes appeals from an order
entered on March 3, 1995, confirming an order entered on December 13, 1993,
which determined child support arrearages owed by Grimes and ordered a monthly
payment of $200 per month to pay the arrearages, plus interest on the
arrearages. Grimes contends that the
trial court erred in various ways with respect to the December 13, 1993 order. We conclude we do not have jurisdiction to
review that order. Grimes also contends
that the trial court erred in confirming the December 13, 1993 order instead of
vacating it or modifying it based on his objections to the December 13, 1993
order. We conclude the trial court did
not erroneously exercise its discretion in entering the March 3, 1995 order and
we therefore affirm.
Marjorie
Mount and Dennis Grimes were divorced by judgment entered April 29, 1980. At that time, there were two minor
children: Christopher, born
May 22, 1972, and David, born October 14, 1974. Grimes was ordered to pay $400 toward the support of the minor
children, effective February 19, 1980, and, beginning July 1, 1980, was to
pay $100 per month so long as he remained a full-time student, but not later
than July 1, 1982.
The
1980 judgment remained in effect until January 15, 1987, when the parties
entered into a stipulation to amend the 1980 judgment. This stipulation increased Grimes' support
obligation, but deferred payment of a portion and deferred interest until certain
dates, which were based on Grimes' completion of advanced educational degrees.
On
August 7, 1992, the Dodge County Child Support Agency moved for issuance of an
order terminating Grimes' support obligation as of April 16, 1992,[1]
determining the arrearages owed by Grimes, and ordering him to make regular
payments on the arrearages. A hearing
on the motion was held on March 15, 1993.
At the hearing, Grimes appeared with counsel, Mount appeared without
counsel, and the Dodge County Child Support Agency appeared through
counsel. All the parties stipulated
that, as of May 1990, after crediting Grimes with two payments totaling
$10,189.28--one made in May 1991, and the other in June 1992--there was an
arrearage of $3,410.72. The parties
agreed that the issue to be decided at the hearing was the amount of arrearages
from June 1, 1990 through April 12, 1992.
After
hearing testimony, the court orally ordered that income be imputed to Grimes at
the minimum wage from June 1990 through April 12, 1992, and his support
obligation for that period was of that imputed income. The court ordered interest at the statutory
rate of one and one-half percent per month on this arrearage. The court also ordered that interest on the
arrearages existing before June 1, 1990, be at eighteen percent per
year. The court required payment of
$200 per month toward the arrearages beginning April 15, 1993, but stated that
interest would continue to accrue. The
court did not compute the actual sums owed, but directed counsel for the Dodge
County Child Support Agency (corporation counsel) to calculate that and submit
a proposed written order to Grimes' counsel so he could check the math.
Testimony
by corporation counsel and correspondence submitted by Grimes show that between
the March 15 hearing and December 1993, Grimes' counsel and corporation counsel
had communications about the computations for the proposed written order, and
Grimes' counsel was attempting to settle the matter by payment of a reduced
lump sum. In early December 1993,
corporation counsel filed with the court a proposed written order embodying the
terms of the March 15, 1993 oral order.
Grimes' counsel filed a letter with the court objecting to the proposed
written order on three grounds and asking that a hearing be scheduled
"unless a mutually satisfactory settlement of this matter can be
reached." The objections were
that: (1) interest since July 1990
should not have been applied to the amount of unpaid arrearages because during
that time period Grimes was not provided with information he requested through
counsel about amounts owed; (2) because of delays by corporation counsel
in responding to requests for information and responses to objections to the
proposed order, interest on unpaid arrearages from July 1992 through the
present should be deducted from the amount owed; and (3) because of
Grimes' good faith efforts in making payments since April 1992 and his
financial condition, a reduction in the amount of interest owed was warranted.
The
court received Grimes' counsel's letter on December 13, 1993, after signing the
proposed order earlier that day. The
December 13, 1993 order contains a stamp indicating that it was filed with the
clerk of court on December 13, 1993.
Although the order was signed and filed on December 13, 1993, the court
wrote to Grimes' counsel and corporation counsel on December 15, 1993,
referring to the "proposed order" submitted by corporation counsel,
the letter from Grimes' counsel, and Grimes' request for a hearing. The court asked both counsel to communicate
with each other and then write the court to clarify what the issues were and
whether there was a need for a hearing.
The court's letter made no mention of the fact that the proposed order
had been signed and filed with the clerk of court.
The
record contains the notice for a telephone status conference scheduled for
January 20, 1994, but there is no transcript or minute sheet from that
conference.
The
next filed document is the motion filed on November 22, 1994, by corporation
counsel requesting that the court's signature on the December 13, 1993 order be
"confirmed." This motion
asserts that the order was signed on December 13, 1993, and that the child
support agency filed the order with the clerk of court on December 13,
1993. Testimony of corporation counsel
and correspondence submitted by Grimes show that between the status conference
and the filing of this motion, Grimes' counsel and corporation counsel had communications
discussing the possibility of settling for a reduced lump sum.
A
hearing on the motion was held on February 20, 1995. Grimes and Mount appeared without counsel, and corporation
counsel appeared. Grimes objected to
the December 13, 1993 order. He
disputed how his arrearages had been computed in years prior to the March 1993
hearing. He also argued that the total
child support and interest he was being required to pay between 1987 and 1992
was 117% of his actual earnings for that time period. He did not specifically refer to the requests for reduction of
interest made in his counsel's letter of December 13, 1993, but he did refer to
the letter. He did generally refer to
errors and misrepresentations concerning the amount of support he owed. He expressed his understanding, based on
what his attorney had told him, that everything was still under consideration
and claimed that "things were stalled" by corporation counsel.
The
trial court treated the December 13, 1993 order as being in effect, and
concluded that Grimes should have brought a motion earlier to reconsider or
vacate that order. The court decided that Grimes was guilty of laches, having
waited more than a year to bring a motion for relief from the order under
§ 806.07, Stats. The court stated that it did not want, at
this date, to reconsider a decision it had made in March 1993. A written order confirming the December 13,
1993 order was entered on March 3, 1995.
Grimes filed a notice of appeal from the March 3, 1995 order with the
trial court on March 14, 1995.
Grimes'
arguments on appeal challenge both the December 13, 1993 order and the court's
March 3, 1995 order confirming that order.
We first decide whether we have jurisdiction to review the December 13,
1993 order.
If
notice of entry of judgment is not given, a notice of appeal must be filed
within ninety days of the entry of the order appealed from. Section 808.04(1), Stats. Entry of an order
occurs when it is filed in the office of the clerk of court. Sections 808.03(1) and 806.06(1)(b), Stats.
Grimes argues in the context of other issues he raises that he did not
know the December 13, 1993 order was signed and entered.[2] However, we have held that even when there
is no notice of entry of judgment and a party does not learn of the entry of
judgment within the time allowed for an appeal, the appeal time runs from the
date of entry of judgment. A.C.L.U.
v. Thompson, 155 Wis.2d 442, 455 N.W.2d 268 (Ct. App. 1990). The result in A.C.L.U. was
based on the plain language of § 808.04(1), Stats., which requires that an appeal be initiated
"within 90 days of entry if notice [of entry of judgment] is not
given." We stated in A.C.L.U.
that the reason why the party did not have notice of the entry of judgment was
irrelevant to that appeal. Id.
at 445 n.5, 455 N.W.2d at 270.
We
need not decide whether there are any circumstances that would permit running
the time to appeal from a date later than the entry of an order or
judgment. Even if we accept, for
purposes of argument, Grimes' implicit assumption that the appeal time on the
December 13, 1993 order did not begin to run until he or his attorney had
actual notice of entry, we are satisfied that actual notice occurred on or shortly after November 22, 1994, when
corporation counsel filed its motion to confirm the December 13, 1993 order,
stating in the motion that the order was signed and filed on December 13,
1993. The notice of appeal filed on
March 14, 1995, was clearly untimely as to the December 13, 1993 order under
any view of the law.
Although
we do not have jurisdiction to review the December 13, 1993 order, we do have
jurisdiction to review the March 3, 1995 order insofar as Grimes presented new
issues at the February 20, 1995 hearing that the court had not decided on March
15, 1993. Ver Hagen v. Gibbons,
55 Wis.2d 21, 26, 197 N.W.2d 752, 755 (1972).
We accept the trial court's characterization of Grimes' objection to the
December 13, 1993 order, made at the February 20, 1995 hearing, as a request
for relief under § 806.07, Stats.[3] Grimes was arguing that there were errors in
the arrearage calculations that had not been brought to the court's
attention. This might be grounds for
relief from the order under § 806.07(1)(a)--"[m]istake, inadvertence,
surprise, or excusable neglect." To the extent Grimes also intended to be raising the objections
stated in his attorney's December 1993 letter, those objections are also
possible grounds under either §§ 806.07(1)(a) or 806.07(1)(g)--"It is no
longer equitable that the [order] should have prospective
application." Also, perhaps some
of Grimes' or his counsel's objections could be considered "[a]ny other
reasons justifying relief from the operation of the judgment." Section 806.07(1)(h).
Motions
under § 806.07(1), Stats.,
"shall be made within a reasonable time, and, if based on sub. (1)(a) or
(c), not more than one year after the judgment was entered or the order or
stipulation was made." Section
806.07(2). A decision whether to grant
relief under § 806.07 is within the trial court's discretion and we will affirm
the decision if the court, in fact, exercised discretion and there is a
reasonable basis for the trial court's determination. Rhodes v. Terry, 91 Wis.2d 165, 176, 280 N.W.2d
248, 253 (1979).
Grimes
argues that the court erred in finding him guilty of laches. He contends that because he and his attorney
did not know that the proposed written order had been signed and entered on
December 13, 1993, they did not unreasonably delay in bringing a motion for
relief from the order. Phrased in the
context of § 806.07, Stats.,
Grimes' argument is that his failure to bring a motion for relief from the
December 13, 1993 order earlier was not unreasonable; the court should have
entertained his objections to that order at the February 20, 1995 hearing and
should have declined to "confirm" the December 13, 1993 order based
on his objections.
We
assume for purposes of discussion that neither Grimes nor his attorney knew
that the December 13, 1993 order had been entered until receipt of the November
22, 1994 motion. We nevertheless
conclude that there is a reasonable basis for the trial court's decision.
Under
§ 806.07(2), Stats., a party
seeking relief from an order must bring a motion within a reasonable time after
"the order ... was made." For
a motion under § 806.07(1)(a), the paragraph under which most of Grimes'
objections fall, the maximum time allowed is one year after "the order ...
was made." The use of the term
"made" in connection with the order is significant. When relief is sought from a judgment, the
relevant time is when the judgment is "entered." A judgment is entered when it is filed in
the office of the clerk of court.
Section 806.06(1)(b). An order
is also entered when it is filed with the clerk of court. Sections 808.03(1), 806.06(1)(b) and
806.06(3), Stats. The use of the word "made" in
connection with the word "order" in § 806.07(2) must therefore mean
something different from "entered."
See Armes v. Kenosha County, 81 Wis.2d 309, 318,
260 N.W.2d 515, 519 (1977) (where legislature uses similar but different terms
in a statute, particularly within the same section, there is a presumption it
intended the terms to have different meanings).[4] We construe the date an order was
"made" to mean the date the order was orally made in court.
The
trial court orally made an order in court on March 15, 1993, determining the
arrearages that Grimes owed on particular dates--the amount owed as of the end
of May 1990 was determined by stipulation, and the amount owed between then and
April 12, 1992, was determined by the court's imputing earnings at the minimum
wage to Grimes for that time period. The
court also ordered interest at prescribed percentages on the arrearages and a
payment schedule.
The
objections in Grimes' counsel's December 1993 letter and the objections Grimes
presented at the February 20, 1995 hearing were not objections to the accuracy
of the December 13, 1993 order as a reflection of the court's oral order made
on March 15, 1993. Nor were they
objections to corporation counsel's computations. They were objections to the substance of the March 15, 1993
order. In order to seek relief from
that order, Grimes had to act within a reasonable time from March 15, 1993, the
date on which the order was made. The
date on which the proposed written order was signed and entered is not
determinative of the date after which Grimes had an obligation to seek relief
from the oral order of March 15, 1993.
The
trial court apparently considered that all of the objections Grimes was raising
had to be brought within a year of December 13, 1993, and were therefore
untimely. We conclude that all the
objections Grimes and his attorney raised had to be brought within a reasonable
time after March 15, 1993, and that those involving "mistake,
inadvertence, surprise, or excusable neglect" had to be brought by March
15, 1994. However, we are not required
to reverse a discretionary decision if we can conclude ab initio that
there are facts in the record that would support the trial court's decision had
discretion been exercised on the basis of those facts under the correct legal
standard. State v. Johnson,
118 Wis.2d 472, 481, 348 N.W.2d 196, 201 (Ct. App. 1984).
We
conclude that the record supports a determination that the objections Grimes
made at the February 20, 1995 hearing relating to mistake, inadvertence,
surprise or excusable neglect were not brought by March 15, 1994. As for any objections that can be
characterized as based on § 806.07(1)(g) or (h), Stats., we conclude the record supports a determination those
objections were not made within a reasonable time after March 15, 1993.
We
consider separately the objections that Grimes' attorney made in his December
1993 letter to the court. Grimes argues
that he should have been granted a hearing on those objections. In the context of § 806.07, Stats., we construe this to be his
argument: That letter was, in effect, a
request for relief from the March 15, 1993 order; was made within a reasonable
time after March 15, 1993; and Grimes was never given the hearing he
requested. Therefore, the argument
continues, the court should, at the least, have found that the objections made
in that letter were timely. In
discussing this contention, we will assume that Grimes did raise the objections
in this letter at the February 20, 1995 hearing, although that is not clear
from the transcript of the hearing.
In response to Grimes' counsel's letter, the
court wrote that a hearing would be held, if necessary, after the parties
clarified the issues resulting from the objections. It is not clear who requested the status conference scheduled for
January 20, 1994, and there is no transcript or minutes from that
conference. But at the hearing on
February 20, 1995, corporation counsel read from his notes of the status
conference to the effect that Grimes' attorney discussed a compromise figure
and brought up issues regarding "arrearage calculations ... that basically
went to the original decision in March the previous year." According to corporation counsel's notes,
the court stated at the status conference that "if things weren't settled
in thirty days, we should act to have it scheduled for hearing." The court accepted this account of the
status conference. Nothing in the
record disputes it. Nothing in the
record indicates that Grimes did request a hearing after the status conference.[5]
There
is evidence in the record, some of it supplied by Grimes, that at and after the
status conference, Grimes' counsel continued to attempt to get corporation
counsel to agree to accept less than the court ordered Grimes to pay on March
15, 1993, as he had attempted before the proposed written order was submitted
to the court. Grimes was the party that
objected to the March 15, 1993 order.
When, thirty days after the status conference, there was no agreement to
modify that order, it was Grimes' responsibility--not the responsibility of
corporation counsel or the court--to initiate a hearing on his request for
relief from the March 15, 1993 order.
It was unreasonable for Grimes and his counsel to take no action to have
the court rule on the request until February 20, 1995, at the hearing on
corporation counsel's motion to confirm the December 13, 1993 order. For these reasons, we conclude the record
supports a conclusion that the objections made in the December 1993 letter were
not timely raised, whether they are characterized as grounds for relief under
§ 806.07(1)(a), (g) or (h), Stats.
By
the Court.—Order affirmed.
Not recommended for
publication in the official reports.
No. 95-0779(C)
GARTZKE,
P.J. (concurring). I concur in
the result but not all of the reasoning.
The
lead opinion construes the one-year limit in § 806.07(2), Stats., to mean that a party seeking
relief from an order must bring the motion within one year from the date the
order was rendered orally. I do not
agree. The only reasonable construction
of § 806.07(2) is that the one year runs from the date of entry of the
order. Because the dispositive order
was entered December 13, 1993, an § 806.07 motion could not be made at the
February 20, 1995 hearing. Whether
Grimes had actual notice that the order had been entered on December 13, 1993
is immaterial.[6]
The
one year in § 806.07(2), Stats.,
runs from entry of the order, not its oral pronouncement. The Wisconsin Supreme Court created
§ 806.07. See 67 Wis.2d
585, 726 (1975). We apply the
traditional principles of statutory construction to the supreme court's
rules. Brandt v. LIRC,
160 Wis.2d 353, 362 n.2, 466 N.W.2d 673, 676 (Ct. App. 1991). One such principle is that we employ a
common sense reading to avoid an unreasonable or absurd result. State v. Moore, 167 Wis.2d
491, 496, 481 N.W.2d 633, 635 (1992).
Moreover, because § 806.07 is a judicially created rule, and
separation of powers considerations are absent, we should have more flexibility
in its construction than if it were a statute.
It
makes sense that the one year in § 806.07(2), Stats., should run from the time a stipulation "was
made." Unlike judgments and
orders, stipulations are not entered by the clerk of court, and the parties are
necessarily privy to them. And it makes
sense that in case of a judgment, the one year should run from entry of
judgment. That is consistent with when
the time to appeal starts to run.
Section 808.03(1), Stats.
It
makes no sense to distinguish between a judgment and an order for purposes of
starting the one year. Section 806.07, Stats. motions for relief from orders
are as frequent as motions for relief from judgments, and usually involve
orders or judgments as to which the appeal time has expired. Absent an explanation why the one year in
§ 806.07(2) should run from entry in the case of a judgment but from oral
pronouncement of an order, when the time to appeal runs from entry in both
cases, we ought not readily hold that the one year in § 806.07(2) runs
from the time the order was orally announced.
We
should look to the Judicial Council Committee's Note to § 806.07, Stats., for guidance regarding the
supreme court's intent when adopting the rule.
According to that note, "This section is substantially equivalent
to Federal Rule 60(b) ...."
Federal Rule 60(b) provides in relevant part, "The motion [for
relief] shall be made within a reasonable time, and for reasons (1), (2) and
(3), not more than one year after the judgment, order, or proceeding was
entered or taken." Rule 60(b) is
the federal counterpart to § 806.07(2), but there is a difference.
Section
806.07(2), Stats., covers
stipulations and Federal Rule 60 does not.
I infer that the Wisconsin Supreme Court's intent that § 806.07(2)
cover stipulations as well as orders and judgments led the court to refer to
"one year after the judgment was entered or the order or stipulation was
made." Inadvertence is the only
rational explanation for the difference when the one year begins to run on the
time to seek relief as between judgments and orders. We should implement the supreme court's original intent by
reading § 806.07(2) to mean that the one year starts "after the
judgment or order was entered or stipulation was made."
Because
the order was entered December 13, 1993, and the § 806.07, Stats. motion was not made until
February 1995, more than one year expired, and the motion was untimely. The appeal time runs from the date of entry
of judgment even if a party does not learn of the entry of judgment. A.C.L.U. v. Thompson, 155
Wis.2d 442, 445 n.2, 455 N.W.2d 268, 269 (Ct. App. 1990). I would hold that the same principle applies
to the motion for relief under § 806.07(2). I would so hold, notwithstanding the unusual correspondence from
the court referring to the order as "proposed," even though the order
had already been signed and entered.
The
order confirming the December 13, 1993 order is a nullity. The December order was not appealed, and it
is beyond § 806.07(2), Stats.,
relief. To "confirm" it is as
meaningless as would be an order "disaffirming" it. In neither event can the December order be
affected.
[1] The parties' youngest
child, David, died on April 12, 1992.
While the Dodge County Child Support Agency's motion refers to April 16,
1992, we believe it intended to refer to April 12, 1992.
[2] The record does not show how or when Grimes
or his counsel first learned the December 13, 1993 order had been signed
and entered. The trial court's letter
to counsel, two days after the order was signed and entered, described it as
"proposed." The court at the February
20, 1995 hearing appeared to assume that Grimes' counsel knew of the entry of
the order soon after it was entered, but the issue was not squarely raised or
addressed at that hearing. There are
conflicting affidavits of Grimes' attorney and of corporation counsel, prepared
and submitted after the appeal was filed, as to whether and how Grimes' counsel
learned the December 13 order had been signed and entered. Even if these affidavits were properly part
of the record on appeal, as an appellate court we do not make findings of fact
if the facts are contested. Wurtz
v. Fleischman, 97 Wis.2d 100, 107 n.3, 293 N.W.2d 155, 159 (1980). As we explain in the opinion, none of the
issues we address requires us to decide when Grimes or his attorney first learned
of the entry of the December 13, 1993 order.
[3] Section 806.07, Stats., provides in relevant part:
(1) On motion and
upon such terms as are just, the court may relieve a party or legal
representative from a judgment, order or stipulation for the following reasons:
(a) Mistake,
inadvertence, surprise, or excusable neglect;
....
(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.
(2) The motion
shall be made within a reasonable time, and, if based on sub. (1)(a) or (c),
not more than one year after the judgment was entered or the order or
stipulation was made. A motion based on
sub. (1)(b) shall be made within the time provided in s. 805.16. A motion under this section does not affect
the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an
independent action to relieve a party from judgment, order, or proceeding, or
to set aside a judgment for fraud on the court.
[4] Although the Wisconsin Supreme Court, not the
legislature, created § 806.07, Stats.,
we apply the same rules of statutory construction. Brandt v. LIRC, 160 Wis.2d 353, 362 n.2, 466 N.W.2d
673, 676 (Ct. App. 1991), aff'd, 166 Wis.2d 623, 480 N.W.2d 494 (1992).