PUBLISHED OPINION
Case No.: 95-1718
Complete Title
of Case:
REBECCA LALUZERNE,
Petitioner-Appellant,
v.
LARRY STANGE,
Respondent-Respondent.
Submitted on Briefs: January 23, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: February 13, 1996
Opinion Filed: February
13, 1996
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Oconto
(If "Special", JUDGE: Eugene F. McEssey
so indicate)
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the
petitioner-appellant the cause was submitted on the briefs of Julie L. Cabou
of Milwaukee.
Respondent
ATTORNEYSFor the
respondent-respondent the cause was submitted on the brief of John C. Gower
of Oconto Falls.
COURT OF APPEALS DECISION DATED AND RELEASED February 13, 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(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. 95-1718
STATE
OF WISCONSIN IN COURT OF
APPEALS
REBECCA LALUZERNE,
Petitioner-Appellant,
v.
LARRY STANGE,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Oconto County:
EUGENE F. McESSEY, Judge. Reversed
and cause remanded with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Rebecca Laluzerne
appeals an order granting a mutual domestic abuse injunction that required both
Laluzerne and the respondent, Larry Stange, to avoid each other's residence and
to avoid contacting each other.
Laluzerne contends the trial court erred when it granted a domestic
abuse injunction against her because: (1) Stange did not present any evidence
that she had abused him or threatened to do so; (2) she was the petitioner in
the action; and (3) Stange never filed a petition against her. Laluzerne further contends that the trial
court erred when it granted the injunction against Stange for six days and not
the two years she requested.
We conclude the trial
court erred by granting the mutual injunction without any allegation or
evidence that Laluzerne abused Stange or threatened to do so. Additionally, we conclude § 813.12(4)(a), Stats., precludes an injunction without
the filing of a formal petition, and § 813.12(4)(b) precludes an injunction
against the petitioner in the same action as that filed by the petitioner. We further conclude the trial court erred by
limiting the requested injunction to a six-day period. However, because the trial court erroneously
relied on Stange's agreement to a mutual injunction, the trial court did not
hear sufficient evidence at the hearing to make a finding that an injunction
was warranted against Stange.
Therefore, we reverse the order and remand to the trial court to hold an
evidentiary hearing on whether Laluzerne is entitled to an injunction against
Stange.
Laluzerne filed a
petition for a temporary restraining order and domestic abuse injunction
against her husband, Larry Stange. In
her petition, Laluzerne swore under oath that she was in imminent danger of physical
harm from Stange and requested a two-year injunction. Laluzerne detailed Stange's threats to hurt her, his severe
change in personality and her fear that he would kill her. Judge Larry L. Jeske reviewed the petition
and found reasonable grounds to believe that Laluzerne needed protection. Accordingly, Judge Jeske signed a temporary
restraining order requiring Stange to avoid Laluzerne's residence, to avoid
contacting or causing any person other than a party's attorney to contact
Laluzerne unless she consents in writing, and to surrender all weapons.
A hearing was then set
for Laluzerne's request for a two-year domestic abuse injunction. Laluzerne appeared pro se at the hearing and
Stange appeared with his attorney. At
the hearing, Judge Jeske explained that because of his prior representation of
Stange, he felt uncomfortable being the judge in the case. Accordingly, Judge Jeske attempted to act as
a mediator and elicit an agreement between the parties to voluntarily stay
apart without a finding of domestic abuse.
Unable to reach an agreement, Judge Jeske arranged for Judge Eugene F.
McEssey to hold the evidentiary hearing later that day. At the hearing, Judge McEssey limited the
testimony after Stange indicated he would agree to a mutual injunction. Judge McEssey then entered a mutual domestic
abuse injunction for six days until the date set for the temporary hearing in
the then-pending divorce action between the parties.
Each of the issues
Laluzerne raises on appeal requires the interpretation of § 813.12, Stats.
Statutory interpretation presents a question of law that we review
without deference to the trial court. State
ex rel. Frederick v. McCaughtry, 173 Wis.2d 222, 225, 496 N.W.2d 177,
179 (Ct. App. 1992). The purpose of
statutory interpretation is to ascertain and give effect to the legislature's
intent. Id. Only if a statute is ambiguous do we look
beyond the statutory language. Id.
at 225-26, 496 N.W.2d at 179. A statute
is ambiguous only if it is capable of two or more reasonable
interpretations. Id. at
226, 496 N.W.2d at 179.
Laluzerne first contends
the trial court erred when it issued the injunction against her without any
allegation or evidence that she abused Stange or threatened to do so. We agree.
The record in this case is devoid of any allegation or evidence that
Laluzerne presented a risk of violence to Stange. Without the proper evidentiary basis it was error for the court
to order an injunction against Laluzerne.
Injunctions can be
justified only in extreme circumstances.
See Schramek v. Bohren, 145 Wis.2d 695, 710-11, 429
N.W.2d 501, 507 (Ct. App. 1988); Matlock v. Weets, 531 N.W.2d
118, 122 (Iowa 1995). Accordingly, the
court may not grant a domestic abuse injunction unless it "finds
reasonable grounds ... that the respondent has engaged in, or ... may engage
in, domestic abuse of the petitioner."
Section 813.12(4)(a)3, Stats. Without such a finding, it is error to
restrict a citizen from exercising rights otherwise guaranteed by the
constitution.
The trial court
apparently reasoned that because Stange would be enjoined from having contact
with Laluzerne, it was appropriate to also enjoin Laluzerne. However, Stange made no allegations that
Laluzerne abused him or threatened to do so and presented no evidence to
support such a proposition. While it is
true that an injunction against Stange would prohibit him from contacting
Laluzerne, the only basis to issue an injunction against Laluzerne is upon
proof that she abused Stange or threatened to do so. See §§ 813.12(1)(a) and (4)(a), Stats. The issuing of
an injunction against one does not by itself support issuing an injunction
against the other. Section 813.12, Stats., authorizes injunctions only in
limited and specific cases. When a
petitioner's physical safety is in danger, there is statutory authority to
issue a domestic abuse injunction; however, in the absence of such
circumstances the court has no authority to order the injunction. Accordingly, mutual injunctions exceed the
court's authority when there is no evidence that both parties' physical safety
is in danger. Because Stange made no
allegation and presented no evidence that Laluzerne had abused him or
threatened to do so, we conclude the trial court erred when it granted an
injunction against Laluzerne.
Laluzerne also raises
two other objections to the granting of a domestic abuse injunction against
her. She contends that § 813.12(4)(a), Stats., precludes an injunction without
the filing of a formal petition, and § 813.12(4)(b) precludes an injunction
against the petitioner in the same action as that filed by the petitioner. The applicable provisions of § 813.12, are
as follows:
(4) Injunction
(a) A judge or family court commissioner may grant an injunction ... if all of
the following occur:
1. The petitioner files a petition alleging the elements set forth
under sub. (5)(a).
2. The petitioner serves upon the respondent a copy of the
petition and notice of the time for hearing on the issuance of the injunction,
or the respondent serves upon the petitioner notice of the time for hearing the
issuance of the injunction.
3. After hearing, the judge or family court commissioner finds
reasonable grounds to believe that the respondent has engaged in, or based upon
prior conduct of the petitioner and the respondent may engage in, domestic
abuse of the petitioner.
....
(b) The judge or family court commissioner may enter an injunction only
against the respondent named in the petition.
No injunction may be issued under this subsection under the same case
number against the person petitioning for the injunction. (Emphasis added.)
We conclude that these
contentions provide an alternative basis to conclude that the court erred when
it granted an injunction against Laluzerne.
The clear and unambiguous language of § 813.12(4)(a), Stats., provides that an injunction may
be granted only if the petitioner files a petition alleging the necessary
elements. It is undisputed that Stange
did not file a petition in this action.
Therefore, the court erred when it granted the injunction against
Laluzerne without Stange filing a petition.
Further, under the clear
and unambiguous language of § 813.12(4)(b), Stats.,
the court may only enter an injunction against the respondent named in the
petition; it cannot issue an injunction against the petitioner under the same
case number. Therefore, this section
precludes the issuing of a mutual domestic abuse injunction. Because Laluzerne was the petitioner in this
action and Stange was the respondent, the court only had authority to issue an
injunction against Stange.
Stange argues that the
mutual domestic abuse injunction was entered upon the stipulation of the
parties and therefore Laluzerne is estopped from challenging the
injunction. We disagree. A stipulation between the parties is
"an agreement between them—a recommendation jointly made by them to the
court suggesting what the judgment, if granted, is to provide." Bliwas v. Bliwas, 47 Wis.2d
635, 638, 178 N.W.2d 35, 37 (1970).
The statements Stange
relies on to support the proposition that the parties entered into a
stipulation are taken out of context and do not support a finding that the
parties entered into a stipulation. The
first statement relied on by Stange was while Judge Jeske was attempting to
reach a settlement without a hearing or a finding of domestic abuse. If any agreement had been reached, the
evidentiary hearing before Judge McEssey that followed would not have been
necessary. Further, at the hearing
before Judge McEssey, Stange's attorney referred to an offer of a mutual
injunction and not an agreement or stipulation. We therefore conclude that the record discloses no stipulation at
the hearing before Judge Jeske.
The other statements at
the hearing before Judge McEssey do not reflect a mutual agreement of the
parties; they reflect only Laluzerne's understanding of and expected agreement
with the trial court's order. Neither
party mentioned the word "stipulation," Judge McEssey never inquired
whether Laluzerne would agree to a mutual injunction, and the record does not
reflect an agreement between the parties.
We therefore conclude that the parties did not enter into a stipulation
and reject Stange's argument.[1]
Next, Laluzerne contends
that the trial court was required under § 813.12(4)(c), Stats., to grant the injunction against
Stange for the two years she requested.
The trial court granted the injunction for only six days until the date
set for a hearing in the then-pending divorce action. Section 813.12(4)(c)1 provides in part: "An injunction under
this subsection is effective according to its terms, for the period of time
that the petitioner requests, but not more than 2 years." (Emphasis added.) The legislature recently added the language "for the period
of time that the petitioner requests" to the statute. 1993 Wis. Act 319, § 16.
Under the clear and
unambiguous language of § 813.12(4)(c), Stats.,
the injunction is effective for the period of time the petitioner requests.[2] Stange has neither argued nor presented
evidence to the contrary. Accordingly,
we conclude that the trial court erred by limiting the injunction to six days.
However, Stange contends
that there was insufficient evidence to support the issuance of the injunction
against him. We agree. While Laluzerne swore under oath in her
petition regarding Stange's threats to hurt her and his severe change in
personality, neither Laluzerne nor any other witness testified to the threats
at the hearing. In the absence of proof
of the allegations at the hearing, the trial court was without sufficient
evidence to support an injunction. See
Bachowski v. Salamone, 139 Wis.2d 397, 414, 407 N.W.2d 533, 540
(1987).
The trial court appeared
to cut the hearing short and limit testimony due to the fact that Stange agreed
to a mutual injunction. The trial court
stated: "The point is here that
they both agree, he agrees to have a joint, and then we'll grant the
restraining order, so that part is accomplished." Stange's agreement to a domestic abuse
injunction was conditioned on the issuance of a mutual injunction. The parties did not stipulate to a mutual
injunction being issued and therefore a proper evidentiary record is required
to support the court's order that a domestic abuse injunction be issued. Because there was no stipulation between the
parties and an injunction against Laluzerne was improper, we conclude that the
case should be remanded to the trial court for an evidentiary hearing to
determine whether Laluzerne is entitled to an injunction against Stange. The temporary restraining order shall remain
in effect until the conclusion of the hearing on remand. Because § 813.12(3)(c), Stats., requires the judge to hold the
hearing within seven days after the temporary restraining order is issued, we
direct the trial court to hold the evidentiary hearing within seven days after
the record is remitted to the trial court.
In sum, we conclude that
the trial court could not issue a domestic abuse injunction against Laluzerne
without any allegation or evidence that she abused or threatened to abuse
Stange and the trial court erred when it limited the injunction to six
days. Additionally, we conclude §
813.12(4)(a), Stats., precludes
an injunction without the filing of a formal petition and § 813.12(4)(b)
precludes an injunction against the petitioner in the same action as that filed
by the petitioner. We further conclude
that because the trial court erroneously relied on Stange's agreement for a
mutual injunction, it failed to hear sufficient evidence to support a finding
that the injunction was warranted against Stange. Therefore, we reverse the order and remand to the trial court to
hold an evidentiary hearing on whether Laluzerne is entitled to a domestic
abuse injunction against Stange.
By the Court.—Order
reversed and cause remanded with directions.