COURT OF APPEALS DECISION DATED AND RELEASED January 15, 1997 |
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. 95-3183
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In re the Marriage of:
BORISAV PETROVIC,
Petitioner-Appellant,
v.
DRAGICA PETROVIC,
Respondent-Respondent.
APPEAL from orders of
the circuit court for Racine County:
ALLEN PATRICK TORHORST, Judge.
Affirmed in part; dismissed in part.
Before Snyder, P.J.,
Nettesheim and Anderson, JJ.
PER
CURIAM. Borisav and Dragica Petrovic were divorced pursuant to
a judgment entered in the trial court on November 5, 1992. Maintenance was held open as to both parties
on an indefinite basis.
In December 1994, Borisav
moved to modify the divorce judgment to require Dragica to pay maintenance to
him. In a written document captioned
"ORDER--MAY 11 & 15, 1995," the trial court denied the motion. That order was entered in the trial court on
June 5, 1995. Notice of its entry was
given by Dragica to Borisav in accordance with § 806.06(5), Stats., on June 6, 1995.
On June 21, 1995,
Borisav filed a motion requesting reconsideration of the order entered on June
5, 1995, pursuant to § 805.17(3), Stats.,
and relief from that order pursuant to § 806.07(1)(a), (b) and (h), Stats.
On October 2, 1995, a document captioned "ORDER--SEPTEMBER 21,
1995" was entered in the trial court denying Borisav's request for
reconsideration and refusing to grant relief pursuant to § 806.07(1).
On November 14, 1995,
Borisav filed a notice of appeal from both the order entered in the trial court
on June 5, 1995, and the order entered on October 2, 1995. We dismiss the appeal from the June 5, 1995
order for lack of jurisdiction. We
affirm the October 2, 1995 order.
Section 805.17(3), Stats., applies to a reconsideration
motion filed after a postdivorce evidentiary hearing. Schessler v. Schessler, 179 Wis.2d 781, 782, 508
N.W.2d 65, 65 (Ct. App. 1993). Section
805.17(3) extends the time permitted an aggrieved party for appealing a final
order if he or she files a timely motion for reconsideration. Schessler, 179 Wis.2d at 783,
508 N.W.2d at 66.
Borisav timely filed a
motion for reconsideration of the June 5, 1995 order within twenty days of its
entry as required by § 805.17(3), Stats. However, because the trial court did not
decide the motion within ninety days after entry of the June 5, 1995
order, it was deemed denied on September 3, 1995. See Wainwright v. Wainwright, 176 Wis.2d
246, 250, 500 N.W.2d 343, 345 (Ct. App. 1993).
The time permitted for Borisav to appeal the June 5, 1995 order
therefore commenced running on September 3, 1995. See id.; § 805.17(3). Moreover, because notice of entry of the
June 5, 1995 order had been given by Dragica within twenty-one days of its
entry, the time permitted Borisav for appealing was reduced to forty-five days,
establishing a deadline of October 18, 1995.
Salzman v. DNR, 168 Wis.2d 523, 531, 484 N.W.2d 337, 339
(Ct. App. 1992). Because Borisav failed
to file a notice of appeal until November 14, 1995, and because failure to
appeal a final order within the time limits specified in § 808.04, Stats., and § 805.17(3) deprives
this court of jurisdiction, we dismiss the appeal from the June 5, 1995 order. See Wainwright, 176
Wis.2d at 250, 500 N.W.2d at 345.
Borisav timely appealed
from the order entered on October 2, 1995, denying his motion for
reconsideration and his motion for relief under § 806.07(1), Stats.
We will address each of these motions separately.
An appeal cannot be
taken from an order denying a motion for reconsideration which presents the
same issues as those determined in the order sought to be reconsidered. Silverton Enters., Inc. v. General
Cas. Co., 143 Wis.2d 661, 665, 422 N.W.2d 154, 155 (Ct. App.
1988). Although a party may move a
trial court to reconsider its orders or judgments, he or she must present
issues other than those determined by the original judgment or order if the
order denying reconsideration is to be appealable. See Ver Hagen v. Gibbons, 55 Wis.2d 21, 26,
197 N.W.2d 752, 755 (1972). To
determine whether new issues exist, we must compare the issues raised in the
motion for reconsideration with those disposed of in the June 5, 1995 order. See Harris v. Reivitz,
142 Wis.2d 82, 87, 417 N.W.2d 50, 52 (Ct. App. 1987).
After comparing the
issues raised in the motion for reconsideration with the issues disposed of in
the June 5, 1995 order, we conclude that Borisav cannot appeal the portion of
the October 2, 1995 order denying his motion for reconsideration. In the June 5 order, the trial court
determined that there had not been a substantial change in the circumstances of
the parties since the time of the divorce and that modification of the divorce
judgment to award maintenance to Borisav was unwarranted. In making this determination, it found that
Dragica remained unable to pay maintenance, that Borisav's earning capacity had
not diminished since the time of the divorce, and that Borisav was physically
and mentally capable of obtaining and holding a job. It found unconvincing Borisav's testimony that he suffered from
depression which prevented him from obtaining or seeking employment.
In his motion for
reconsideration, Borisav again raised the issue of whether he was physically
and mentally capable of working. While
he presented additional evidence to support that argument, the issue of whether
he was able to work had already been decided by the trial court in its June 5,
1995 order. Since the motion for
reconsideration therefore did not raise a new issue, Borisav may not challenge
the order denying it on appeal. See
Ver Hagen, 55 Wis.2d at 26, 197 N.W.2d at 755 (holding that a
motion for reconsideration did not raise a new issue when it set forth
additional evidence related to an issue already decided by the trial court).
While Borisav cannot
challenge the portion of the October 2, 1995 order denying reconsideration, his
appeal was properly taken from the portion of the order denying his motion for
relief under § 806.07(1), Stats. We affirm that portion of the order.
A trial court's order
denying a motion for relief under § 806.07, Stats., will not be reversed absent an erroneous exercise of
discretion. State ex rel. M.L.B.
v. D.G.H., 122 Wis.2d 536, 541, 363 N.W.2d 419, 422 (1985).[1] An erroneous exercise of discretion will not
be found if the record shows that the trial court exercised its discretion and
a reasonable basis for the trial court's determination. Id. at 542, 363 N.W.2d at 422.
Borisav sought relief in
the trial court pursuant to § 806.07(1)(a), (b) and (h), Stats.
He refers to the statutory standards set forth in these three
subsections in the argument section of his brief on appeal, pointing out that a
trial court may relieve a party from an order based upon mistake, inadvertence,
surprise, excusable neglect, newly-discovered evidence or any other reasons
justifying relief from the operation of the order. However, he does not discuss these standards further, except to
say that § 806.07(1)(h) must be liberally construed to allow relief
whenever such action is appropriate to accomplish justice. He contends that allowing the supplemental
evidence offered by him in support of his motion for relief would have been
appropriate to accomplish justice.
Because Borisav's brief
does not discuss the law applicable to excusable neglect, mistake,
inadvertence, surprise or newly-discovered evidence, or apply that law to the
facts of his case, we conclude that the issue of whether relief was warranted
under § 806.07(1)(a) or (b), Stats.,
was inadequately briefed. Borisav's
cursory discussion of § 806.07(1)(h) also constitutes inadequate
briefing.
We may decline to review
issues which are inadequately briefed. See
State v. Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App.
1992); Fritz v. McGrath, 146 Wis.2d 681, 686, 431 N.W.2d 751, 753
(Ct. App. 1988). However, we will
briefly discuss them here because it is clear that an erroneous exercise of
discretion in denying Borisav's motion has not been shown.
As pointed out by the
trial court, the supplemental evidence from Dr. Donald Jacobsen and Dr.
D.P. Bogunovic was evidence which could have been presented at the original
evidentiary hearing on Borisav's motion for modification. Jacobsen and Bogunovic offered supplemental
testimony concerning Borisav's depression and back problems and the effect
those problems had on his ability to work.
However, Borisav indicated that these health problems existed before he
filed his motion for modification and testified concerning them at the hearing
on that motion.
As discussed by the
trial court, Borisav's motion for relief under § 806.07, Stats., established no excusable
neglect or justification for failing to present this evidence in a timely
fashion.[2] Moreover, as also noted by the trial court,
to the extent this evidence would have been relied upon by the vocational
consultants who testified at the hearing on the motion for modification, it was
cumulative since evidence regarding Borisav's depression and back problems had
already been considered by them.
Borisav also offered a
supplemental report from Laura Koritsoglou in support of his motion for
relief. That report was based on the
reports of Jacobsen and Bogunovic and concluded that Borisav was unable to
work. However, the trial court
correctly noted that Koritsoglou had rendered this same opinion at the original
hearing on the motion for modification and that her opinion had been considered
by the trial court.
In denying the motion,
the trial court also pointed out that the new evidence proffered by Borisav did
not affect its previous finding that Dragica was unable to pay
maintenance. Based on that finding, the
trial court reasonably concluded that the new evidence would not lead to a
result different from that set forth in the order denying maintenance.
Based upon this record,
the trial court properly determined that Borisav failed to demonstrate
excusable neglect, mistake, surprise or inadvertence under § 806.07(1)(a),
Stats. Because the evidence was cumulative and with reasonable diligence
should have been discovered earlier, the trial court also properly refused to
set aside the order pursuant to § 806.07(1)(b), based upon
newly-discovered evidence. See
§ 805.15(3), Stats. Since the facts also failed to demonstrate
that the interests of justice compelled relief from the June 5, 1995 order, the
trial court acted within the scope of its discretion in denying relief under
§ 806.07(1)(h). See Conrad
v. Conrad, 92 Wis.2d 407, 418, 284 N.W.2d 674, 679 (1979).
By the Court.—Appeal
from order entered on June 5, 1995 dismissed; order entered on October 2, 1995
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The "erroneous exercise of discretion" standard has the same meaning as the former "abuse of discretion" standard. Allstate Ins. Co. v. Konicki, 186 Wis.2d 140, 149 n.3, 519 N.W.2d 723, 726 (Ct. App. 1994).
[2] It appears that Borisav might be arguing that his failure to present Jacobsen's testimony at the original hearing on the motion for modification was excusable because his depression rendered him emotionally unable to admit his depression to a doctor at that time. The trial court was not required to accept this explanation, particularly since the record indicated that Borisav told vocational consultants of his depression and testified concerning it at the hearing on his motion for modification.