Doerr v. Doerr
| Decision Date | 05 December 1996 |
| Docket Number | No. 95-3513,95-3513 |
| Citation | 561 N.W.2d 350,208 Wis.2d 371 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In re the Marriage of: Mary Ellyn DOERR, Petitioner-Respondent, v. Charles A. DOERR, Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., ROGGENSACK and DEININGER, JJ.
Charles A. Doerr appeals a post-divorce order modifying the physical placement schedule of his children and raising his child support obligation from $725 to $950 per month. Charles challenges the placement modification on due process grounds and claims that the trial court erred by deviating from the HSS guidelines, without stating its reasons on the record. He also contests a related award of attorney fees to his ex-wife.
Because Charles has shown us no authority for the due process right he claims was violated, and because we conclude the trial court properly exercised its discretion, we affirm the trial court's order for physical placement of the children. The child support guidelines are not directly applicable to this placement arrangement, which combines primary placement for one child with shared placements for two other children; therefore, we find no erroneous exercise of discretion in the manner in which the court established child support. Finally, we affirm the award of attorney fees as a proper exercise of the trial court's discretion.
Charles Doerr and Mary Ellyn Doerr (n/k/a Mattison) were divorced on January 8, 1993. The parties then had four minor children: Edward, Anna Jo, Reed, and Georgia. The divorce judgment awarded sole legal custody and primary physical placement of the children to Mary Ellyn and, based on Charles' income of $30,000/year, ordered him to pay $775 1 per month in child support. The amount changed to $725 per month when Edward reached his majority.
On April 13, 1995, Charles moved the trial court to modify the parties' physical placement schedule to reflect an informal agreement under which the three youngest children had been alternating a week at a time with each parent. Charles also requested a modification of child support and joint legal custody of the children. On May 8, 1995, Mary Ellyn moved the court to find Charles in contempt for failure to pay maintenance. She also moved for an increase in maintenance, appointment of a guardian ad litem, payment of the children's uninsured medical and dental expenses, and an award of attorney fees.
The court appointed Janet Jenkins as guardian ad litem for the children. It requested Jenkins to file a written report no later than June 30, 1995, in preparation for the August 28th evidentiary hearing on all motions. In her initial report, Jenkins recommended an equal placement schedule for Reed and Georgia, with some flexible days at the children's discretion. She recommended that Anna Jo determine her own placement. However, after the children read Jenkins' report and spoke with her about it, Jenkins submitted a supplemental report. It suggested that Georgia feared her father, but did not explain why, and recommended Georgia be placed primarily with her mother and spend one day a week and alternate weekends with Charles. Jenkins still recommended equal placement for Reed, and flexibility for Anna Jo, who was to spend the upcoming school year as an exchange student in Spain.
At the evidentiary hearing, Charles objected to Jenkins' supplemental report because it was untimely. He requested mediation, rather than going forward with an evidentiary hearing on placement, and he asked the court to turn the hearing into an informal pre-trial because he said he was not prepared to counter Jenkins' supplemental report.
The court suggested entering an interim order providing alternate weekend placement of Georgia with Charles. Charles objected. Mary Ellyn opposed mediation because the parties had been unsuccessful with it in the past. She said she was ready to proceed with the hearing, notwithstanding the late report. She suggested that each party could testify about the proposed schedule. However, neither party testified about placement. Instead, the court ordered mediation, and the hearing went forward on the financial issues. At its conclusion, the court adopted the guardian ad litem's recommendation "as the order that will stay in effect until something is presented to me that would suggest I should change it as a result of this mediation or some further request for this hearing." The court denied Mary Ellyn's motions to increase maintenance and to have Charles found in contempt. It granted Mary Ellyn's motion to have Charles pay the children's medical and dental expenses for treatment he initiates without Mary Ellyn's approval. The court left open the issue of child support. The court was to be informed if mediation failed and the parties believed another hearing was needed.
On September 26, 1995, Charles wrote a letter asking the court to schedule another hearing on placement, reiterating his objections to the court's order of August 28, 1995. On November 2, 1995, the court issued a final order on placement and child support, stating that "there is no purpose to a further hearing unless either party has some additional evidence to present, which would persuade the court that some other order would be in the best interests of the children." Neither party responded to the court's invitation. The court noted that the HSS guidelines were not readily applicable to the facts of the case because of the combined forms of placement it was ordering. It set child support at $950 per month, based on 25% of Charles' gross income, which had increased by 53% to $46,000. The court also awarded Mary Ellyn $2,000 in attorney fees. Charles appeals the denial of a second hearing on placement, the amount of child support and the award of attorney fees.
Scope of Review.
We review the trial court's placement decision and child support award under the erroneous exercise of discretion standard. Wiederholt v. Fischer, 169 Wis.2d 524, 530, 485 N.W.2d 442, 444 (Ct.App.1992); Abitz v. Abitz, 155 Wis.2d 161, 174, 455 N.W.2d 609, 614 (1990). An award of attorney fees is also within the trial court's discretion, and will not be altered on appeal unless the trial court erroneously exercises its discretion. Bisone v. Bisone, 165 Wis.2d 114, 123-24, 477 N.W.2d 59, 62 (Ct.App.1991). The trial court properly exercises its discretion when it states its reasons and bases its decision on law and the facts in the record. Luciani v. Montemurro-Luciani, 199 Wis.2d 280, 294, 544 N.W.2d 561, 566 (1996).
Evidentiary Hearing on Placement.
Divorce in Wisconsin is purely statutory, and is governed by the provisions of ch. 767, Stats. Pettygrove v. Pettygrove, 132 Wis.2d 456, 462, 393 N.W.2d 116, 119 (Ct.App.1986). Charles claims that the trial court's placement order must be set aside because he was denied the opportunity to be heard on the placement issue; and therefore, his due process rights were violated. Charles cites no authority for his assertion that he has a constitutional right to a hearing on a post-divorce motion to change custody and placement. His argument is supported only by general statements drawn from property law cases, which are not applicable in a divorce context. This court may choose not to consider undeveloped arguments and arguments unsupported by references to relevant legal authority. State v. Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct.App.1992). We do so in this case.
Moreover, the record does not support Charles' assertion that a hearing was denied. Charles was afforded an opportunity to be heard on placement at the evidentiary hearing held on August 28, 1995, but he wanted mediation, which the court ordered. The August hearing was not, as Charles contends, simply a pre-trial hearing. The court received the placement report; the judge spoke with the children in chambers and it did not restrict Charles from presenting evidence. It also heard testimony on financial matters. Charles expressed numerous objections to the guardian ad litem's supplemental report. The court made clear that it planned to enter a placement order that day.
The trial court did leave open the possibility of an additional hearing on placement. But holding another hearing was conditioned on the parties presenting to the court something other than the parties' statements which were already on record. Mediation was unsuccessful and Charles' subsequent letter requesting a hearing only reiterated what he had already said in court.
In its November 1995 placement order, the trial court again invited the parties to bring new information...
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