Ennis v. Ennis

• Decision Date: 30 January 1979
• Docket Number: No. 77-429,77-429
• Citation: 276 N.W.2d 341,88 Wis.2d 82
• Court: Wisconsin Court of Appeals
• Parties: Barbara J. ENNIS, Plaintiff-Respondent, v. Jerald L. ENNIS, Defendant-Appellant.

Page 341

276 N.W.2d 341

88 Wis.2d 82

Barbara J. ENNIS, Plaintiff-Respondent, v. Jerald L. ENNIS, Defendant-Appellant.

No. 77-429.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 10, 1978.

Opinion Released Jan. 30, 1979.

Opinion Filed Jan. 30, 1979.

James P. Gerlach of LaRowe & Gerlach, Reedsburg, submitted brief for defendant-appellant.

Vaughn S. Conway, Baraboo, submitted brief for plaintiff-respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

BABLITCH, Judge.

Jerald Ennis (defendant) appeals from an order granting a motion to reopen a judgment of divorce, orders denying his motions to dismiss the proceedings below, and an order granting Barbara Ennis (plaintiff) an allowance of child support pending appeal and award of attorneys fees on appeal.

Plaintiff and defendant were married July 29, 1961, and divorced on August 1, 1974. During the divorce proceedings, the defendant was represented by a firm of attorneys through an attorney then employed by that firm. Plaintiff was also represented by counsel. The parties entered into a written stipulation providing that the plaintiff would receive custody of the minor children, the right to live in the homestead until the youngest child reached 18, one-half the proceeds from the sale of the home after that date, and child support in the amount of $35 per week.

At the divorce hearing, only very brief testimony was elicited in support of the stipulation. Plaintiff testified that she "earned" between $75 and $80 per week, and that the defendant "earned" between $700 and $800 per month. The defendant testified that plaintiff's statement was accurate as to his earnings. Neither party was asked by either attorney or by the trial court whether these were gross earnings or net after taxes. On the joint motion of the parties' attorneys the trial court approved the stipulation in all respects. The findings of fact were drafted by the plaintiff's attorney and approved by the defendant's attorney and by the family court commissioner.

Nearly three years later, on May 19, 1977, plaintiff moved in the alternative either to modify the judgment to provide credit to her for certain repairs made to the home ¹ or to reopen the judgment on the ground of fraud perpetrated on the court by the defendant. The alleged fraud was that the income figures testified to at the time of trial were net figures, but were referred to as "gross" amounts in the findings of fact adopted by the court. The motions were made on plaintiff's behalf by a member of the firm which had represented defendant in the original action.

Five separate hearings were held on the motion to reopen. In light of our holding, it is unnecessary to discuss them in detail. The defendant moved to dismiss the plaintiff's motions on the ground that they were not made within one year after the entry of judgment as required by sec. 806.07(2), Stats. His motion was eventually denied. He also made repeated objections to plaintiff's representation by an attorney from the same firm which had represented him in the original action, and moved to dismiss, or alternatively to continue the action until plaintiff acquired new counsel, on the ground that the continuing representation was in violation of the Canons of Ethics and hindered defendant's preparation of a defense. This motion was also denied. In the trial court's view, the ethical issue was a matter for the State Bar of Wisconsin and not for the trial court.

At the conclusion of the hearings the trial court found on the basis of the parties' joint 1973 income tax returns that the defendant grossed $14,437.40 and that plaintiff grossed $4,746.87 in that year, and that "fraud was perpetrated on the Court as to the parties earnings" in the original divorce trial. For this reason the court granted plaintiff's motion to reopen the judgment of divorce.

After the defendant filed his appeal from that order, the plaintiff moved pursuant to sec. 247.39, Stats. (1975), for an allowance pending appeal. A hearing was held on that motion on November 21, 1977, at which defendant did not personally appear. An affidavit was filed on his behalf by his attorney setting forth his then current income and expenses. Since the transcript of that hearing is not before us on this appeal, we do not know what other evidence, if any, was adduced in support of the motion. At the conclusion of the hearing the court ordered defendant to pay $15 per week "in addition to the support for the minor children . . . ordered by the Judgment of Divorce" of $35 per week. He also ordered defendant to pay $500 as contribution towards plaintiff's attorney fees on appeal. Defendant appealed from these orders as well, and thereafter moved to stay the orders pending appeal. On December 13, 1977, the court "stayed" the orders but provided that defendant's 50% Interest in the parties' home would stand as security for the ordered amounts and that "in the event said appeal is unsuccessful, defendant's interest shall be encumbered to the extent said allowances shall be due and owing to plaintiff."

We deem the issues to be as follows: ²

I. Whether the trial court erred in granting a motion to reopen a judgment on the ground of fraud more than a year after judgment was entered.

II. Whether plaintiff is entitled to relief from judgment on any other ground.

III. Whether the trial court erred in granting attorney fees and child support pending appeal.

IV. Whether the trial court erred in refusing to disqualify plaintiff's attorney or dismiss the action after disclosure of a conflict of interest in the representation.

I. RELIEF GROUNDED ON FRAUD

The grounds for granting relief from judgment are set forth in sec. 806.07, Stats. ³ That section provides that a motion seeking relief based on mistake or fraud must be brought within a year after the judgment was entered or the stipulation was made.

Though the statute "does not limit the power of a court to entertain an independent action . . . to set aside a judgment for fraud on the court," plaintiff concedes on appeal that her motion to reopen was not an "independent action" within the meaning of the statute. That phrase connotes the commencement of a new and separate proceeding by filing a summons and complaint. ⁴ Since the motion was brought almost three years after judgment was entered, it was not timely and should have been dismissed. Doheny v. Kohler, 78 Wis.2d 560, 254 N.W.2d 482 (1977).

II. RELIEF FOR OTHER REASONS

Plaintiff argues for the first time on this appeal that her motion and the trial court's order reopening judgment were not grounded solely on "fraud" or mistake, and submits that the order should be sustained pursuant to sec. 806.07(1)(h), Stats. That section provides for reopening a judgment for "(a) ny other reasons justifying relief from the operation of the judgment." Under sec. 806.07(2) a motion for such relief must be brought "within a reasonable time" after it is entered.

Plaintiff's motion for relief in this action was grounded exclusively on a claim of fraud. ⁵ The trial court's order was similarly restricted to a finding of fraud. Having failed to raise any claim of "other reasons" warranting relief from judgment in the trial court, plaintiff is not entitled to raise them here. Cordes v. Hoffman, 19 Wis.2d 236, 238-39, 120 N.W.2d 137 (1963). Nonetheless, in light of the lengthy and convoluted proceedings below, and in the interest of economy on remand, we choose to reach this issue. Estate of Zeimet, 259 Wis. 619, 622, 49 N.W.2d 924 (1951); Braasch v. Bonde, 191 Wis. 414, 418, 211 N.W. 281 (1926).

Section 806.07(1)(h), Stats., is based on Fed.R.Civ.P. 60. ⁶ We concur with the federal interpretation that this provision must be liberally construed to allow relief from judgments "whenever such action is appropriate to accomplish justice." See, e. g., Klapprott v. United States, 335 U.S. 601, 615, 69 S.Ct. 384, 390, 93 L.Ed. 266 (1948). The facts of this case, however, provide no basis for relief under this provision.

This entire controversy arises out of a single scrivener's error which has no bearing on the equity of the stipulation negotiated by the parties and approved by the trial court. Plaintiff makes no claim that she was misled in any way by the mistaken reference to "gross" rather than to "net" income in the findings of fact prepared by her attorney. Nor does she claim that defendant withheld any financial information from her prior to trial, the disclosure of which would render the original stipulation unfair in any respect.

The parties' 1972 and 1973 joint tax returns were signed by the plaintiff prior to the original trial. She provided copies of both returns to her present counsel prior to the commencement of these proceedings. She offers no reason why she waited almost three years to challenge the divorce judgment. We hold that her motion for relief was not brought "within a reasonable time" after judgment was entered within the meaning of sec. 806.07(2), Stats.

III. CHILD SUPPORT AND ATTORNEY FEES PENDING APPEAL

Defendant contends that the trial court lacked jurisdiction to award child support pending appeal or attorney fees on appeal, since it lacked the power to reopen a judgment based on fraud more than a year after it was entered. The motion for support was brought pursuant to sec. 247.39, Stats. (1975), ⁷ which provided:

Alimony or other allowance for a spouse or children when an appeal of a divorce or legal separation action is pending before the supreme court may be allowed . . . .

In Strandberg v. Strandberg, 27 Wis.2d 559, 135 N.W.2d 241 (1965), the Wisconsin Supreme Court upheld the trial court's dismissal of a divorce action on the ground that the plaintiff had not acquired residency in the county of origin at the time the action was commenced and thus the court had no jurisdiction to hear it. It also upheld the trial court's award of alimony to plaintiff pending appeal under sec. 247.39,...