PUBLISHED OPINION
Case No.: 95-0787
Complete Title
of Case:
IN RE THE PATERNITY OF
JAIME M. E.:
STATE OF WISCONSIN
and MARY E. E.,
Petitioners-Respondents,
v.
GENE R.,
Respondent-Appellant.
Submitted on Memoranda: July 25, 1995
Oral Argument: ----
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: September 6, 1995
Opinion Filed: September 6, 1995
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: PATRICIA S. CURLEY
so indicate)
JUDGES: WEDEMEYER,
P.J., FINE and SCHUDSON, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the respondent-appellant the cause was submitted on the memorandum of Jerome
F. Buting of Buting & Williams, S.C. of Brookfield.
Respondent
ATTORNEYSFor
the petitioner-respondent State of Wisconsin the cause was submitted on the
memorandum of Theodore G. Spyres of Milwaukee County Dept. of
Child Support Enforcement of Milwaukee.
Respondent
ATTORNEYSFor
the petitioner-respondent Mary E. E. the cause was submitted on the memorandum
of Ronald C. Shikora of Milwaukee.
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COURT OF APPEALS DECISION DATED AND RELEASED September 6, 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. 95-0787
STATE OF WISCONSIN IN COURT OF APPEALS
IN RE THE PATERNITY OF
JAIME M. E.:
STATE OF WISCONSIN
and MARY E. E.,
Petitioners-Respondents,
v.
GENE R.,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
PATRICIA S. CURLEY, Judge. Dismissed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Gene R. filed a notice of appeal from a
February 2, 1995, default judgment in the underlying paternity
action. The judgment provides that
custody and primary physical placement are granted temporarily to the mother of
the child. The judgment further
provides that payment of the expenses of pregnancy, birth and future child
support are "to be determined."
One of the components of
finality is whether the order or judgment appealed from disposes of the entire
matter in litigation as to one or more of the parties, as a matter of
substantive law. Radoff v. Red
Owl Stores, Inc., 109 Wis.2d 490, 494, 326 N.W.2d 240, 241-42
(1982). The issues expressly held open
by the circuit court are statutorily part of a paternity trial under
§ 767.50(1), Stats. Accordingly, this court issued an order on
June 14, 1995, directing the parties to address the issue of whether the
judgment on appeal was final and appealable within the meaning of Radoff. The parties have filed their respective
memoranda.
Gene R., relying on Shuput
v. Lauer, 109 Wis.2d 164, 325 N.W.2d 321 (1982), asserts that the
judgment is final because, like a judgment of foreclosure and sale, the
judgment of paternity terminates the litigation on the merits and leaves
nothing to be done but to enforce by execution what has been determined. In Shuput, the court
determined that a judgment of foreclosure and sale is final and appealable and
must be appealed within the statutory time limits. Id. at 172, 325 N.W.2d at 326. The court in Shuput further
determined that an order confirming a sale by foreclosure was also
appealable. Id.
The court's conclusion
in Shuput that each of the trial court dispositions in a
foreclosure action was appealable and "distinct" turned on its
recognition that "[t]he order confirming the sale determines the interests
of the parties to the sale who are not necessarily the same parties as are
interested in the proceedings leading to the judgment of foreclosure and
sale." Id. at 171,
325 N.W.2d at 325-26. Gene R. argues
that the matters yet to be determined by the trial court here are analogous to
the execution of a judgment and "simply enforce the rights of the parties
which have already been adjudicated by the Judgment of Paternity."
Despite the surface
similarities between a judgment of foreclosure and a judgment of paternity, we
agree with the State's contention that the statutory scheme governing the
foreclosure of mortgages and the Shuput case are distinguishable
from the statutes under consideration here.
Section 767.50(1), Stats.,
contemplates that paternity and the issues of child support, legal custody and
related issues, if relevant, be subject to a single, albeit bifurcated,
trial. In contrast, the statutory scheme
governing the foreclosure of mortgages addressed by the court in Shuput
established serial proceedings governed by a number of separate but related
statutes.[1] Further, the court in Shuput
recognized that the parties to a foreclosure action and the parties to a sale
might not be the same. In contrast, the
parties in interest in the trial contemplated by § 767.50(1), would be the
same for both the declaration of paternity and the issues of child support and
pregnancy expenses.[2]
In support of the
argument that the default judgment is final, Gene R. points also to the
language of § 767.51(1), Stats.,
which states that the judgment of paternity is "determinative for all
purposes." However, Gene R.
overstates the reasonable meaning of this language. "Determinative" in this context is not the same as
final for the purposes of Radoff.
Gene R. also points to
§ 767.51(3), Stats., which
provides, in part, that a judgment of paternity "may" contain
provisions addressing support, custody and placement issues. Again, this statutory language is not
inconsistent with the bifurcated trial established by § 767.50(1), Stats.
Rather, it recognizes that in some circumstances the issue of paternity
might be raised when issues of custody or support were no longer relevant.
Finally, Gene R. asserts
that a judgment of paternity disposes of the State's interest in this
litigation. However, the State points
out correctly that its interest in this
litigation is not terminated by the trial court's finding of paternity: "[t]he State has a direct financial interest
in the reimbursement of birth expenses paid by Title XIX and in past
support owed for the period of time that this mother and child received
AFDC." In fact, the State's
continuing interest in this litigation was assured when the mother in this case
filed an application for services with the Milwaukee County Department of Child
Support Enforcement.
The court concludes that
the judgment entered in this case is not final under § 808.03(1), Stats.
Issues of child support and the expenses of pregnancy and birth remain
to be determined.
By the Court.—Appeal
dismissed.