COURT OF APPEALS DECISION DATED AND RELEASED November 15, 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. 95-1777-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In re the Marriage of:
RUPERT J. LOEFFLER,
Petitioner-Appellant,
v.
EMMA G. LOEFFLER,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Kenosha County:
MICHAEL FISHER, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER CURIAM. Rupert J. Loeffler
appeals from a judgment of divorce from Emma G. Loeffler. He contends that his attorney should not have
been permitted to withdraw two days before the final trial date, that he was
not afforded the fair and special treatment to which pro se litigants are
entitled and that the trial court erroneously exercised its discretion in
dividing the property.[1] We affirm the judgment of the circuit court.
The first issue is
whether the trial court erroneously exercised its discretion in allowing
Rupert's attorney to withdraw two days before the final day of trial set for
March 29, 1995.[2] Rupert does not contest that counsel had
adequate grounds to withdraw; instead, he argues that he was not provided with
sufficient opportunity to retain new counsel or to prepare himself to proceed
pro se.
The general rule is that
although counsel has justifiable cause for withdrawing from the case, he or she
is not entitled to withdraw until the client has been given reasonable notice
and opportunity to obtain substitute counsel.
Sherman v. Heiser, 85 Wis.2d 246, 251, 270 N.W.2d 397, 399
(1978). The record establishes that on
March 14, 1995, counsel advised Rupert by telephone that counsel would withdraw
from the case if Rupert did not comply with court orders. The motion to withdraw was filed March 20
and heard on March 27. Rupert did not
appear at the hearing. The trial court
noted that it had received that day a letter from Rupert which concluded that
since counsel "has made known his desire to withdraw, please be advised
that I will henceforth be self represented."
Rupert was given
adequate notice that counsel would withdraw.
There was no misuse of discretion in permitting counsel to
withdraw. Further, Rupert indicated
that he would represent himself and he did not request time to retain new
counsel. On the final day of trial,
Rupert did not object to proceeding and affirmed the trial court's
acknowledgement that Rupert would proceed pro se. Any objection to the withdrawal of counsel is waived. The doctrine of judicial estoppel further
prevents Rupert from claiming on appeal that he should have been provided an
opportunity to retain counsel. See State v. Michels, 141
Wis.2d 81, 97-98, 414 N.W.2d 311, 317 (Ct. App. 1987) (a position on appeal
which is inconsistent with that taken at trial is subject to judicial
estoppel).
Rupert next argues that
the trial court committed reversible error by failing to ensure that Rupert, as
a pro se litigant, was treated gently and with fairness. He quotes Velich v. Runyon,
860 F. Supp. 1342, 1345 n.4 (E.D. Wis. 1994), "pro se litigants are
treated gently and are commonly required to comply with standards less
stringent than those applied to expertly trained members of the legal
profession." (Citations
omitted.) Rupert contends that the
circuit court clearly breached its duty to treat a pro se litigant gently when
it forced him, a sixty-nine year old gravely ill cancer patient, to appear pro
se via telephone with minimal notice and without a case file or the proposed
findings Emma submitted.
The Velich
standard has not been adopted by the courts of this state. Rather, our courts have recognized that the
right to self-representation is "‘[not] a license not to comply with
relevant rules of procedural and substantive law.’" Waushara County v. Graf, 166
Wis.2d 442, 452, 480 N.W.2d 16, 20 (quoting Farretta v. California,
422 U.S. 806, 834 n. 46 (1975)), cert. denied, 113 S. Ct. 269
(1992). While some leniency may be
allowed, neither a trial court nor a reviewing court has a duty to walk pro se
litigants through the procedural requirements or to point them to the proper
substantive law. Id.
It was Rupert's choice
not to appear at the final hearing except by telephone. In doing so, he assumed the risks attenuated
to not being able to review written documents submitted that day. Rupert's claim that his illness prevented
him from participating on that day is not supported by the record. There was no testimony from either Rupert or
an expert as to how his medical condition impaired his ability to participate.
The trial court gave
Rupert the opportunity to review and object to the proposed findings submitted
by Emma. Although Rupert complains that
he was only given five days for such review and objection, he ignores the
history of noncompliance with court orders and the failure to appear which he
demonstrated in this case. In light of
that history, the trial court was justified in placing a time limit on Rupert. We conclude that Rupert was treated fairly.
Rupert's final argument
is that the trial court failed to consider the true value of the assets, failed
to equitably divide the assets and failed to provide adequate reasons for
adopting Emma's proposed findings of fact and conclusions of law. At the outset, we note that based on the
valuations utilized by the trial court, a 50/50 property division was
made. Many of the values were
stipulated to or based on appraisals.
The balancing payment Emma would have been required to make to Rupert
was waived because of Rupert's depletion of assets during the course of the
divorce proceeding.
Rupert contends that
this is a case like Trieschmann v. Trieschmann, 178 Wis.2d 538,
542, 504 N.W.2d 433, 434 (Ct. App. 1993), where in adopting the wife's proposed
disposition, the trial court failed to articulate why it believed the proposal
provided the proper result. In Trieschmann,
we reversed the judgment and remanded the issues for further consideration by
the trial court because it appeared that the court "simply accepted [the
wife's] position on all of the issues of fact and law without stating any
reasons for doing so other than its belief that doing so was the ‘only just
solution.'" Id. The trial court had failed to exercise its
discretion. However, Trieschmann
does not hold "that a trial court may never accept the rationale and
conclusions contained in one party's brief to the court. If the court chooses to do so, however, it
must indicate the factors which it relied on in making its decision and state
those on the record." Id.
at 544, 504 N.W.2d at 435.
Here, the trial court
adopted the findings of fact and conclusions of law proposed by Emma. Its order recites that the proposal is
"consistent with the testimony given at trial, the financial disclosure
statement[s] which have been filed and a statement of the assets of the parties
pursuant to § 767.255, Wis. Stats., and are reasonable and fit." The final judgment includes the
following:
The
Court has considered the testimony of both parties, has reviewed both parties'
Financial Disclosure Statements and exhibits introduced into evidence during
trial and the Court has further reviewed the Respondent's Proposed Findings of
Fact and Conclusions of Law and finds same to be reasonable and fair and
incorporates same in its decision and order dated April 7, 1995.
The
findings of fact and conclusions of law do not independently provide reasoning
for the judgment.
Despite
the absence of any indication of the factors upon which the trial court relied
in deciding that Emma's proposed findings of fact and conclusions of law were
"reasonable and fit," this is not a Trieschmann
case. Trieschmann
involved contested issues of maintenance, an unequal property division and
contribution to attorney's fees. Here,
a 50/50 property division was effectuated.
Having adhered to the 50/50 presumption, the factors under
§ 767.255, Stats., did not
come into play. We are not left to
speculate as to why the property was divided 50/50, especially in light of the
fact that this was a long-term marriage.
Under these circumstances, a litany of reasons was not necessary.
As to particular
valuations which the trial court adopted using Emma's proposed findings of
fact, we need not look for a discourse as to why those values are
appropriate. The valuation of a
particular marital asset is a finding of fact which we will not upset unless
clearly erroneous. Liddle v.
Liddle, 140 Wis.2d 132, 136, 410 N.W.2d 196, 198 (Ct. App. 1987); §
805.17(2), Stats. Thus, we need only look to whether
the evidence supports the value assigned.
Rupert claims that the
value of his federal pension is grossly overstated because his life expectancy
is drastically reduced by his treatment for cancer. The value assigned is supported by an exhibit to Emma's financial
statement and is based on an expert's valuation. Nothing presented at trial contradicts that value. After trial, Rupert attempted to
prove a lower value by offering a valuation prepared by Emma's expert based on
only a two-year life expectancy. Not
only does his proof come too late, the record does not support the assumption
of a two-year life expectancy. The
value of the federal pension is not clearly erroneous.
Rupert also objects to
the findings of fact which charge him with making substantial withdrawals of
funds without court approval and in violation of the temporary order. He suggests that these findings are without a
basis because throughout the proceeding he explained that he had increased
living and medical expenses, and that various expenditures were necessary to
complete construction of the parties' Neshkoro cabin so Rupert could live
there. Rupert's justification for
withdrawing funds does not change the fact that he violated an order
restraining him from withdrawing money from accounts and that he was unable to
account for the withdrawals he made.
Similarly, Rupert's frustration at being unable to gain access to the
court to obtain relief from the temporary order does not require a different
finding.[3] Rupert admitted at one point that he had
taken $90,000 from marital accounts.
Just before the last day of trial, he was found in contempt for failing
to return such funds. The findings that
Rupert's withdrawal of funds was a violation of the temporary order are not
clearly erroneous.
Rupert argues that
charging him for using funds which he put into the Neshkoro cabin results in
double counting because those monies are included in the cabin's value. Rupert stipulated to the value of the cabin. He fails to identify what sums of money and
from what accounts he was double charged with.
Rupert claims that the
judgment requires him to make a $20,000 equalization payment to Emma and that
the provision is arbitrary and without explanation in the record for the amount
chosen. Rupert mischaracterizes a
$20,000 entry for "unaccounted for funds" as an equalization
payment. The entry is to reflect
amounts withdrawn by Rupert during the action and unaccounted for. It is placed on his side of the asset sheet,
as an amount charged to him. The record
here supports the $20,000 figure, particularly in light of Rupert's admission
that he withdrew $90,000.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Pursuant to a presubmission conference and this court's order of July 19, 1995, the parties submitted memorandum briefs. Rupert's memorandum brief nearly violates that order's requirement that the brief not contain more than three issues because he raises several issues under the single argument challenging the property division.