COURT OF APPEALS DECISION DATED AND RELEASED December 12, 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. 95-1657
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE FINDING OF
CONTEMPT
IN RE THE MARRIAGE OF
ANNE E.
WHITEAGLE AND TIMOTHY
G. WHITEAGLE:
JOHN E. JOYCE,
Appellant,
v.
ANNE E. WHITEAGLE and
TIMOTHY G. WHITEAGLE,
Respondents.
APPEAL from a judgment
and an order of the circuit court for Dunn County: DONNA J. MUZA, Judge, and GARY SCHLOSSTEIN and ROBERT
PFIFFNER, Reserve Judges. Affirmed.
MYSE, J. John E. Joyce appeals an
order finding that he was in contempt for violating a temporary order in the
respondents' divorce action and imposing a remedial sanction of $10,000 to be
paid to Anne E. Whiteagle to compensate her for the loss she sustained as a result
of Joyce's contemptuous violation.[1] Joyce contends that: (1) the temporary order was void because the
family court commissioner who issued the order was not properly appointed; (2)
he was denied due process rights; (3) the $10,000 sanction was not warranted by
the evidence; and (4) the trial court erred by not making a finding that he had
the financial ability to pay the sanction.
Because this court concludes that Joyce failed to adequately develop his
argument regarding the violation of due process rights and the other arguments
are without merit, the judgment and order are affirmed.
Joyce, an attorney
practicing in Dunn County, represented Timothy Whiteagle in a divorce action
involving Timothy and Anne Whiteagle.
Robert G. Walter was the family court commissioner for Dunn County, but
took an official leave of absence. As a
result, Phillip Steans was appointed as the "assistant family court commissioner"
to serve in Walter's absence. This
appointment was made by the Dunn County circuit court judges and approved by
the chief judge for the 10th Judicial Administrative District. Steans, as "assistant family court
commissioner," signed a temporary order that required Timothy to freeze in
a joint account any funds he received in excess of his $5,000 monthly salary,
except to apply such funds to the parties' outstanding marital
obligations. Timothy challenged the
temporary order contending that Steans was not authorized to act as family
court commissioner because the county board had not created the position of
assistant family court commissioner as required by § 767.13(1)(b), Stats.[2]
The trial court took the
motion challenging Steans' ability to act under advisement and the divorce action
proceeded. Timothy subsequently
received a series of substantial payments as a result of negotiating a
severance agreement with Southwest Casino and Hotel Corporation for whom he had
been acting as an independent contractor.
Among the payments received was a $25,000 check that was placed in
Joyce's trust account. Before the trial
court determined the validity of the temporary order, Joyce paid Timothy
$25,000 from the trust account and received a $4,000 payment for legal services
performed for Timothy in the divorce proceedings and other matters. Joyce does not dispute that the $25,000
payment violated the temporary order.
When Anne learned of the
unauthorized payment, she filed an order to show cause why Timothy and Joyce
should not be held in contempt for violation of the temporary order. This was not addressed initially because the
trial court had not yet resolved the question of Steans' ability to act as
family court commissioner. The trial
court ultimately concluded that Steans was qualified to act because he was a
temporary family court commissioner and was validly appointed under
§ 767.13(1)(b), Stats. Accordingly, the trial court concluded that
the temporary order was valid. Joyce
was ultimately replaced as counsel for Timothy. The trial court then conducted a series of hearings in regard to
the contempt motion. In at least two
different hearings, Joyce testified to the merits of the contempt motion. The trial court ultimately found Joyce in
contempt for his payment and ordered him to pay $10,000 to compensate Anne for
the loss she sustained as a result of Joyce's contemptuous conduct. Joyce appeals.
Joyce first contends
that Steans was not authorized to act as family court commissioner because his
appointment was designated as assistant family court commissioner and the
county board had failed to create the position prior to the appointment. The issue of whether Steans was validly
appointed raises a question of law that this court determines without deference
to the trial court because it involves the application of a statute to
undisputed facts. Chang v. State
Farm Mut. Auto. Ins. Co., 182 Wis.2d 549, 560, 514 N.W.2d 399, 403
(1994).
Under § 767.13(1)(b), Stats., the position of assistant
family court commissioner must be created by the board before the judges can
appoint a person to that position.
However, the judges may appoint a temporary family court commissioner
when the family court commissioner is on an extended leave of absence. Id. Joyce argues that the designation of assistant family court
commissioner conclusively demonstrates the invalidity of the appointment and
this court need look no further to determine this issue. This court disagrees. While it is true that Steans' appointment
was designated as assistant family court commissioner, the evidence is clear
that the denomination as assistant family court commissioner was erroneous and
that Steans was being appointed to act in place of the absent acting family
court commissioner.
The undisputed facts
indicate that Steans was appointed to serve as the family court commissioner
while Walter was on a leave of absence; he was not appointed to serve as
Walter's assistant when he returned.
The intent of the appointment, the position to which Walter was
appointed and the necessity of appointing a temporary court commissioner as
directed by statute when the present court commissioner was unable to act all
support the conclusion that Steans was appointed to serve as family court
commissioner in lieu of Walter during Walter's leave of absence. In addition, Steans received his salary from
funds formerly paid to Walter. Because
all parties intended and understood Steans would serve as the temporary family
court commissioner, the term "assistant family court commissioner" was
a mere denominational error that did not affect Steans' ability to function as
the family court commissioner.
Accordingly, the trial court correctly concluded that Steans was
properly appointed and the temporary order Steans issued was valid and enforceable.
Joyce next contends that
he was denied due process during the contempt proceedings. He acknowledges that due process requires
notice and an opportunity to be heard.
Nonetheless, he asserts without elaboration or explanation that he was
denied this opportunity notwithstanding the fact that he was present at each of
the hearings and testified at two of the hearings. There is no evidence that he was denied the opportunity to
present evidence or that the court limited his defense or explanation of the
contempt motion. Because this argument
has not been adequately developed and the record discloses no basis for the
contention that he failed to receive due process, this court rejects Joyce's
contention and will not address this issue further. See Goosen v. Estate of Standaert, 189
Wis.2d 237, 252, 525 N.W.2d 314, 320 (Ct. App. 1994).
Joyce next contends that
the trial court erred by determining that $10,000 was necessary to make Anne
whole for the loss she sustained as a result of Joyce's contemptuous
conduct. Under § 785.04(1)(a), Stats., the court may impose as a
remedial sanction a sum of money sufficient to compensate a party for its
losses. The trial court made a finding
of fact by concluding that the sanction of $10,000 for attorney's fees and
other costs was necessary to compensate Anne for the loss she suffered as a
result of Joyce's contempt. This court
accepts the trial court's findings of fact unless they are clearly
erroneous. Section 805.17(2), Stats.
The record shows that
the issue of the family court commissioner's authority to act was litigated,
several contempt hearings were held, briefs were submitted and significant
complexities were introduced into the divorce case as a result of this
unauthorized payment of funds. Anne's
attorney also provided a breakdown of counsel's time and costs incurred
totaling over $25,000. Further, Anne
lost the immediate use of the funds, and it is unclear whether Anne will be
able to collect all of the equalizing payment that was increased by the
unauthorized dispersal of the $25,000 held in Joyce's trust account. Based upon the trial court's finding of
fact, which is adequately supported by the record, this court finds no merit to
Joyce's contention that the sanction was inappropriately severe.
Finally, Joyce contends
that the trial court erred by not making a finding that he had the ability to
pay the $10,000 sanction imposed for his contemptuous conduct. In support of this position, Joyce relies on
State ex rel. N.A. v. G.S., 156 Wis.2d 338, 456 N.W.2d 867 (Ct.
App. 1983), and several other cases involving purge conditions. Such reliance is misplaced because those
cases deal with remedial sanctions designed to compel future conduct and the
requirement that they be purgeable. The
sanction imposed by the court, however, was imposed under the authority of §
785.04(1)(a), Stats., as a sum of
money sufficient to compensate parties for their losses. In imposing such a money judgment no inquiry
into the ability of the person in contempt to make payment need be made. Because there is no requirement that the
ability to pay be determined prior to the imposition of a contempt sanction
designed to compensate a party for its losses, this court finds no merit to
Joyce's contention that the trial court erred.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[2] Section 767.13(1)(b), Stats., provides:
[T]he person appointed shall continue to act until a successor is appointed and qualified, except that in the event of disability or extended absence the judges may appoint another reputable attorney to act as temporary family court commissioner. The county board may provide that one or more assistant family court commissioners shall be appointed by the circuit judges for the county subject to the approval of the chief judge.