PUBLISHED OPINION
Case No.: 95-1011
† Petition
for Review filed
Complete
Title
of
Case:In re the
Paternity of Jasmine J.E.:
JASMINE J.E.,
Petitioner,
v.
JOHN E.P.,
Respondent-Third Party
Plaintiff-Appellant,†
BARBARA A.E.,
Third Party Defendant- Respondent.
Submitted
on Briefs: October 9, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: November 9, 1995
Opinion
Filed: November
9, 1995
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Juneau
(If
"Special" JUDGE: John
W. Brady
so
indicate)
JUDGES: Eich,
C.J., Sundby and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the respondent-third party
plaintiff-appellant the cause was submitted on the briefs of Fred D.
Hollenbeck of Curran, Hollenbeck & Orton, S.C., of Mauston.
Respondent
ATTORNEYSFor the third party
defendant-respondent the cause was submitted on the brief of Maureen L.
Kinney of Johns & Flaherty, S.C., of La Crosse.
|
COURT OF APPEALS DECISION DATED AND RELEASED November
9, 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,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1011
STATE OF WISCONSIN IN
COURT OF APPEALS
In re the Paternity of Jasmine J.E.:
JASMINE J.E.,
Petitioner,
v.
JOHN
E.P.,
Respondent-Third Party Plaintiff-Appellant,
BARBARA A.E.,
Third Party Defendant-Respondent.
APPEAL
from a judgment of the circuit court for Juneau County: JOHN W. BRADY, Judge. Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
EICH,
C.J. John P., who was adjudged the
father of a child, Jasmine E., in 1979, was ordered to pay support for the
child several years later in an action commenced by the child's guardian ad
litem. He appeals from a judgment
dismissing his claim for indemnity and contribution from the child's mother,
Barbara E. Like the trial court, we
conclude that he is entitled to neither, and affirm the judgment.
Jasmine
E. was born on May 20, 1979, and her mother, Barbara E., commenced an action
seeking to establish John P.'s paternity.
The action was settled and dismissed (without an adjudication of
paternity) in 1981 upon John P.'s lump-sum payment of $5,000 and his waiver of
rights to custody or visitation.
In
1992, Jasmine E., through her guardian ad litem, commenced this action against
John P., seeking his contribution to her support. John P. filed a third-party complaint against Barbara E.,
claiming that, as a result of the earlier settlement, she should be held
responsible, on principles of either indemnity or contribution, for any further
sums he may be required to pay to Jasmine E.[1] The trial court entered summary judgment
declaring John P. to be Jasmine E.'s father and ordering him to pay child
support in the sum of $200 per month from December 1992 to her eighteenth
birthday in May 1997.[2] The judgment also denied John P.'s claims
for indemnity and/or contribution from Barbara E.
Whether
John P. is entitled to either indemnity or contribution from Barbara E.
involves the application of rules of law to the undisputed facts of the case
and thus presents a legal question which we review independently, owing no
deference to the trial court's decision.
See Nottelson v. DILHR, 94 Wis.2d 106, 115-16, 287
N.W.2d 763, 768 (1980); Green Scapular Crusade, Inc. v. Town of Palmyra,
118 Wis.2d 135, 138, 345 N.W.2d 523, 525 (Ct. App. 1984).
We
first consider John P.'s argument that he is entitled to indemnity from Barbara
E. for the $200-per-month child support he has been ordered to pay. He asserts that when the 1981 stipulated
judgment was entered and the lump-sum payment was made pursuant thereto,
Barbara E. understood that "she would be obligated to raise the child on
her own without any more financial help from John P.," and he
characterizes the stipulation as an "indemnity" agreement which he
says the court must enforce. Alternatively,
he argues that Barbara E. should be ordered to indemnify him from the judgment
on the basis of principles of equity.
The
1981 stipulation is short in length and drafted in what appears to be a
standard format. It provides simply
that, while John P. denies paternity, he agrees to make a lump-sum payment and
to waive "any and all rights, powers, or immunities with respect to
custody or visitation or the exercise of any parental rights ... over
Jasmine." The document says
nothing about indemnity, and John P. does not suggest how its brief and very
limited terms may be construed as an agreement on Barbara E.'s part to
indemnify him from any future court-awarded child support for Jasmine E.
The
crux of John P.'s argument is equitable in nature. Simply defined, indemnity is a principle that "`shift[s] the
loss from one person who has been compelled to pay to another who on the basis
of equitable principles should bear the loss.'" Brown v. LaChance, 165 Wis.2d 52, 64, 477 N.W.2d
296, 302 (Ct. App. 1991) (quoted source omitted).
"Although it has been said that the right
to indemnity springs from a contract ... the modern cases note that contract
furnishes too narrow a basis, and that principles of equity furnish a more
satisfactory basis for indemnity.... The rule proposed in the Restatement of
Restitution ... appears to be based on principles of equity; it provides that a
person who, in whole or in part, has discharged a duty which is owed by him but
which as between himself and another should have been discharged by the other,
is entitled to indemnity from the other, unless the payor (indemnitee) is
barred by the wrongful nature of his conduct."
....
"`Probably ... no one explanation can be
found which will cover all of the cases; and the duty to indemnify, like so
many other duties, arises where community opinion would consider that in
justice the responsibility should rest upon one ... rather than another.'"
Kjellsen v. Stonecrest, Inc., 47 Wis.2d 8, 11-12, 176 N.W.2d 321, 323-24 (1970)
(citations omitted; quoted sources omitted).
John
P., emphasizing that "[t]he granting of indemnity in any situation
represents a judicial choice of policy," Gies v. Nissen Corp.,
57 Wis.2d 371, 386, 204 N.W.2d 519, 527 (1973), contends that because Barbara
E., "for a valuable consideration," agreed to bear certain
obligations--the obligation to support Jasmine E.--"[she] should be
required to bear th[em]."
Indemnification,
however, does not arise between parties who share a liability or
responsibility to a third party,[3]
and it goes without saying that, under the law, both parents share the
obligation to support their children. See
§ 49.90(1m), Stats., which
provides, "Each parent has an equal obligation to support his or her minor
children as provided in this chapter and ch. 48." And the supreme court has held that that
obligation--as it applies to either parent--may not be abrogated by an agreement
such as the one entered into by Barbara E. and John P. in 1981. See Gerhardt v. Estate of Moore,
150 Wis.2d 563, 565, 574, 441 N.W.2d 734, 735, 739 (1989) (lump-sum child
support agreement in a paternity action does not bar the child from seeking
additional support at a later date). We
conclude, therefore, that the trial court properly dismissed John P.'s claim
for indemnity from Barbara E.
As
we noted above, contribution, unlike indemnity, is a principle applicable to
situations where liability to a third party--almost always in tort--is shared
by the principals. Brown,
165 Wis.2d at 64, 477 N.W.2d at 302.
"Contribution is the `process by which one person obtains
reimbursement from another for a proportionate share of an obligation paid by
the first person but for which they are both liable.' This process is based upon principles of equity and natural
justice, not express contract." Kafka
v. Pope, 186 Wis.2d 472, 475, 521 N.W.2d 174, 176 (Ct. App. 1994), aff'd,
194 Wis.2d 234, 533 N.W.2d 491 (1995) (quoted source omitted; citation
omitted). It is a common-law doctrine
designed to "spread the loss among all parties responsible for the damage,
thereby preventing unjust enrichment of one tortfeasor at the expense of
another," Comment, Contribution
Among Joint Tortfeasors, 1960 Wis.
L. Rev. 478, 478 (1960), and it contemplates the situation where two (or
more) individuals have a joint liability to the same person, and where one
individual "bears more than his or her fair share of the burden." Brown, 165 Wis.2d at 64, 477
N.W.2d at 302.
John
P. argues, without elaboration or discussion of the facts of record,[4]
that he is entitled to contribution from Barbara E. because he is bearing an
unfair share of Jasmine E.'s support.
The argument is untenable.
First,
as indicated, he points to no evidence in the record that his 1981 payment of
$5,000 represents such a disproportionate contribution to Jasmine E.'s support
over an eleven-year period that it either unjustly enriched Barbara E. or
otherwise warrants Barbara E.'s absorbing the $200 per month he has now been
ordered to pay until Jasmine E. reaches eighteen some two years from now. The trial court, after noting in its written
decision on John P.'s motions that he had provided no such evidence, went on to
note that Jasmine E., who was then fourteen years old, "has been totally
supported by [Barbara E.] all of her life except for the $5,000 provided by
[John P.]," and stated that "anyone who has been a parent in the last
20 years certainly knows that she cannot support a child for 14 years, or even
one year, for the sum of $5,000."[5] Holding that John P. had not established
even a prima facie case for entitlement to contribution, the trial court
dismissed his claim.
Viewing
the law and the established facts independently, we reach a similar
conclusion. Spread over the first
eleven years of Jasmine E.'s life, John P.'s lump-sum $5,000 contribution to
her support averages only $455 per year, or $38 per month. Even when the additional support he has now
been ordered to pay from December 1992 to June 1997--some $10,600--is added to
his initial contribution, the total, spread over eighteen years, would amount
to only $867 per year, or $72 per month, during the entire period of Jasmine
E.'s minority.
We
conclude that John P. has failed to establish that he should be relieved of his
obligation to support his daughter for the remaining few years of her minority
based on principles of "equity and natural justice" or "unjust
enrichment"--or on the broad basis that he has paid more than his fair
share of her support since her birth.
By
the Court.—Judgment affirmed.
[1] Claiming that Barbara E. and Jasmine E. were
conspiring in the guardian ad litem's action in order to enrich Barbara E.,
John P. also asserted causes of action for barratry and champerty, among
others, all of which were dismissed by the trial court and are not argued on
this appeal.
[2] The judgment provided that, should Jasmine E.
still be in high school, support should continue until her graduation or her
nineteenth birthday, whichever comes first.
[3] Where liability is "common," or
shared, contribution may be an appropriate remedy, but indemnification, which,
as indicated, attempts to shift one party's responsibility to another, is
not. See Fidelity &
Deposit Co. v. Verzal, 121 Wis.2d 517, 524, 361 N.W.2d 290, 293 (Ct. App.
1984); Brown v. LaChance, 165 Wis.2d 52, 64, 477 N.W.2d 296, 302
(Ct. App. 1991).
[4] John P. asserts in his reply brief that
"[t]he record is clear that Barbara [E.] has provided well for [Jasmine
E.]. The record is further clear that
Barbara [E.] claims no hardship nor need for funds from John [P.]. Therefore, there is no financial hardship
for Jasmine [E.]." We decline to
consider the assertions, or the argument based thereon. Where parties fail to comply with
Rule 809.19(1)(e), Stats.,
which requires briefs to contain "citations to the ... parts of the record
relied on," we do not consider arguments based on asserted facts which are
unaccompanied by such references. Tam v. Luk, 154 Wis.2d 282, 291
n.5, 453 N.W.2d 158, 162 (Ct. App. 1990).
See also Keplin v. Hardware Mut. Casualty Co.,
24 Wis.2d 319, 324, 129 N.W.2d 321, 323 (1964) ("it is not the duty of
[the appellate] court to sift and glean the record in extenso to find
facts which will support an assignment of error"); Lechner v.
Scharrer, 145 Wis.2d 667, 676, 429 N.W.2d 491, 495 (Ct. App. 1988)
(appellate court need not consider arguments unsupported by citations to
authority or references to the record).