Frisch v. Henrichs

Decision Date01 March 2006
Docket NumberNo. 2005AP534.,2005AP534.
Citation713 N.W.2d 139,2006 WI App 64
PartiesIn re the Marriage of Heidi FRISCH f/k/a Heidi Henrichs, Petitioner-Respondent,<SMALL><SUP>†</SUP></SMALL> v. Ronald J. HENRICHS, Respondent-Appellant.
CourtWisconsin Court of Appeals

On behalf of the respondent-appellant, the cause was submitted on the briefs of Richard J. Podell and Barbara J. Stippich of Richard J. Podell & Associates, S.C. of Milwaukee. There was oral argument by Richard J. Podell.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Thomas L. Frenn and Kelly M. Dodd of Petrie & Stocking, S.C. of Milwaukee. There was oral argument by Kelly M. Dodd.

Before SNYDER, P.J., NETTESHEIM and ANDERSON, JJ.

¶ 1 NETTESHEIM, J

Ronald J. Henrichs and Heidi Frisch, f/k/a/ Heidi Henrichs, divorced in 1993 after a ten-year marriage. The ensuing litigation—a bitter tangle of alleged fraud, misrepresentation, unfairness, contempt, public policy arguments, overtrial and garden-variety buyer's remorse—has worn on longer than the marriage that spawned it. In its painstaking attempt to undo this Gordian knot, the circuit court mistook remedial contempt for Alexander's sword. We commend the court for its efforts, but conclude nonetheless that its remedy cannot be sustained.

¶ 2 Ronald's appeal is from a postdivorce judgment finding him in contempt of court for fraudulently failing to timely provide copies of his income tax returns to Heidi as required by a 1996 stipulation and a prior order of the family court. Although Ronald had belatedly supplied the returns, the family court nonetheless found him in contempt and ordered him to pay $100,000 as a sanction because the returns showed a level of income greater than that previously represented by Ronald. Despite the tortuous path of this case, this appeal turns on one narrow, but important, issue: whether the family court's use of remedial contempt was proper. We hold it was not because the facts and the procedure of this case lack the necessary hallmarks of remedial contempt. We therefore reverse the contempt judgment.

¶ 3 Besides imposing a remedial contempt sanction against Ronald, the family court also determined that Ronald had engaged in overtrial and imposed a $32,000 sanction for such conduct. But, because this sanction was premised on the court's prior contempt finding, we are compelled to also reverse this overtrial award. In addition, the family court ordered Heidi to pay support to Ronald based upon a change in placement to Ronald of the parties' minor son. The parties dispute whether the court suspended this payment until Ronald had paid the contempt and overtrial sanctions to Heidi, but because we reverse the judgment, this issue is moot. We remand only for the court to determine the appropriate commencement date for Heidi's support payments.

BACKGROUND

¶ 4 Although we review the judgment entered by Judge Ralph M. Ramirez on this appeal, the relevant trial court proceedings originated before Judge James Kieffer. In 1993, Judge Kieffer entered a judgment of divorce incorporating the parties' marital settlement agreement requiring Ronald to pay $600 per month in child support for the parties' two minor children. A provision of the agreement referenced WIS. STAT. § 767.263 (1993-94), which required payers of child support to report all substantial changes in income to the clerk of court.1

¶ 5 In the ensuing months, Heidi disputed the accuracy of Ronald's stated income. In January 1995, Heidi moved for: (1) an increase in child support pursuant to WIS. STAT. § 767.32, (2) a finding of contempt for Ronald's alleged failure to provide copies of his income tax returns, and (3) an award of costs and attorney fees. The filing of several additional motions ensued. Heidi's contempt motion subsequently was dismissed, and a hearing on her motion for increased child support was held in November 1995. At this hearing, Judge Kieffer found that Ronald had fraudulently misrepresented his income. As a result, the judge set a revised child support award retroactive to February 1, 1995, and also ordered Ronald to annually provide Heidi with copies of his personal and corporate tax returns for as long as he had child support obligations. In addition, the judge found that Ronald had engaged in overtrial, and ordered him to pay $5000 in attorney fees.

¶ 6 On October 29, 1996, the parties entered into a stipulation modifying child support and imposing a four-year moratorium, ending on January 1, 2001, during which time both parties agreed they would not move to modify child support based on economic circumstances, specifically income fluctuations. The stipulation further recited Ronald's existing obligation to submit copies of his tax returns to Heidi. At the hearing on the proposed stipulation, Heidi's attorney2 noted for the record that each of the parties had been assisted by a certified public accountant "so, there has been tax input and a lot of looking at this business by both sides." Under questioning by Judge Kieffer, both parties represented that they had discussed the stipulation with their respective attorneys, understood the provisions, had no questions, and believed the stipulation to be in their children's best interests. In addition, Judge Kieffer advised the parties that Wisconsin public policy frowns upon agreements that bar parents from seeking child support modifications and that the judge could not independently order what the parties were seeking to do on their own. The parties acknowledged this advice, and Judge Kieffer then approved the stipulation.

¶ 7 Except for a February 1999 stipulation modifying child support as a result of a change in dependent health and dental insurance, the parties remained out of court as agreed. Then in June 2002, after the moratorium had expired, Ronald sought to obtain primary placement of the parties' daughter and a concomitant reduction in child support. The family court commissioner granted this motion at a hearing on July 2, 2002.

¶ 8 In August 2002, Heidi filed a pro se contempt motion against Ronald for his failure to provide copies of his tax returns from 1996 through 2001 and for dishonest reporting of his gross income. By this time, the case had been assigned to Judge Ramirez, who presided over all of the subsequent proceedings. At a September 24, 2002 hearing on the motion, Heidi also orally requested an increase in child support. Judge Ramirez dismissed Heidi's contempt motion because Ronald had already, albeit belatedly, provided copies of the tax returns. In addition, Judge Ramirez directed Heidi to file a written motion relating to her request for increased support. The judge set a hearing date of January 8, 2003.

¶ 9 Before the hearing, Heidi abandoned her pro se status and retained current counsel, who immediately filed an "amended" motion seeking, among other things: (1) WIS. STAT. § 806.07 relief from the court commissioner's July 2002 order reducing Ronald's child support obligation, (2) increased child support retroactive to that time, and (3) an award of attorney fees and expenses based on a claim that Ronald's motion for child support and his defense of Heidi's motions were frivolous. In support, the motion alleged that Ronald had provided incomplete tax returns and had fraudulently misrepresented his actual income.

¶ 10 In the interim, activity continued apace. The parties filed requests for depositions and written discovery, followed by various motions to avoid, limit and compel such discovery, and a motion for a protective order. An emergency court order in November 2002 transferred temporary placement of the parties' minor son to Ronald.

¶ 11 At the January 8, 2003 hearing, Judge Ramirez confirmed the emergency order and formally transferred primary placement of the minor son to Ronald. Since the primary placement of both children now rested with Ronald, the judge ordered that child support from Ronald to Heidi immediately cease. Heidi then orally requested an increase in child support retroactive to 1996. The judge stated that this request would be taken up at a later date.

¶ 12 On May 20, 2003, Judge Ramirez addressed Heidi's request for WIS. STAT. § 806.07 relief and her contempt motion. However, the issues were not resolved at this hearing and the matter was again continued. In the interim, Ronald moved to dismiss Heidi's effort to retroactively modify child support and to limit the time frame of the evidence relating to his income. Two months later, Heidi filed a contempt motion against Ronald for his failure to provide notice that his income had substantially increased and failure to provide copies of his tax returns. Heidi also sought modification of support for the period of the moratorium.

¶ 13 Judge Ramirez next addressed the pending matters at a hearing on October 22, 2003. The judge denied Ronald's motion to limit the scope of the evidence as to his income, deferred action on Heidi's motion to retroactively modify child support, and set a hearing on the pending support and contempt issues for November 6, 2003. However, at the November 6 hearing, the judge held these issues in abeyance, and, instead, addressed the question of whether the court should uphold the 1996 agreement between the parties. In answer, the judge found that the parties had entered into the agreement freely and voluntarily, and that the purpose of the 1996 agreement was not to limit child support, but to curb the pattern of contentious legal proceedings between the parties. The judge then asked the parties to submit letter briefs addressing whether the agreement violated public policy, and the matter was continued to November 25, 2003.

¶ 14 At the adjourned hearing, Judge Ramirez found no fraud or intentional misrepresentation in the making of the 1996 stipulation. However, he did find that Ronald subsequently had engaged in a ...

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5 cases
  • Frisch v. Henrichs
    • United States
    • Wisconsin Supreme Court
    • July 17, 2007
    ...the court of appeals, reversing a judgment of the Circuit Court for Waukesha County, Ralph M. Ramirez, Judge. Frisch v. Henrichs, 2006 WI App 64, 290 Wis.2d 739, 713 N.W.2d 139. We are asked to address whether the circuit court may use its remedial contempt power to craft a remedy where a p......
  • In re Marriage of Biever v. Krueger, No. 2007AP113 (Wis. App. 6/20/2007), 2007AP113.
    • United States
    • Wisconsin Court of Appeals
    • June 20, 2007
    ...placement under WIS. STAT. § 767.451. When a judgment or order is reversed, it is no longer of any legal effect or consequence. Frisch v. Henrichs, 2006 WI App 64, ¶39, 290 Wis. 2d 739, 713 N.W.2d 139, review granted, 2006 WI 108, 292 Wis. 2d 409, 718 N.W.2d 723 (No. 2005AP534). Our summary......
  • Seidl v. Davidson, No. 2006AP2663 (Wis. App. 5/16/2007)
    • United States
    • Wisconsin Court of Appeals
    • May 16, 2007
    ...as both punitive damages and as a contempt sanction.2 In either event, our review of the $5000 punishment is de novo. See Frisch v. Henrichs, 2006 WI App 64, ¶22, 290 Wis. 2d 739, 713 N.W.2d 139, review granted, 2006 WI 108, 292 Wis. 2d 409, 718 N.W.2d 723 (whether law permits the use of co......
  • In re Marriage of Frisch v. Henrichs, No. 2008AP54 (Wis. App. 12/17/2008)
    • United States
    • Wisconsin Court of Appeals
    • December 17, 2008
    ...obligation pending payment of amounts due from Henrichs to Frisch. Henrichs appealed, and we reversed. Frisch v. Henrichs, 2006 WI App 64, 290 Wis. 2d 739, 713 N.W.2d 139 (Frisch I). Frisch sought review in the supreme court, and the supreme court reversed this court. Frisch v. Henrichs, 20......
  • Request a trial to view additional results
1 books & journal articles
  • Commentary: Open letter to Wisconsin's appellate judges.
    • United States
    • Wisconsin Law Journal No. 2006, February 2006
    • December 6, 2006
    ...4. Fully consider all potential implications of your decisions. Recently, in Frisch v. Heinrichs, 2006 WI App 64, 280 Wis. 2d 739, 713 N.W.2d 139, the decision, reversing a contempt decision by the trial court may have prohibited a trial court from making whole an innocent party by holding ......

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