Haeuser v. Haeuser

• Decision Date: 06 March 1996
• Docket Number: No. 95-1087,95-1087
• Parties: In re the Marriage of Margaret HAEUSER, Petitioner-Respondent, v. Kenneth HAEUSER, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

Page 535

548 N.W.2d 535

200 Wis.2d 750

In re the Marriage of Margaret HAEUSER, Petitioner-Respondent, v. Kenneth HAEUSER, Respondent-Appellant.

No. 95-1087.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 11, 1996.

Opinion Released March 6, 1996.

Opinion Filed March 6, 1996.

[200 Wis.2d 753] On behalf of the respondent-appellant, the cause was submitted on the briefs of Miles G. Lindner of Schwei & Wendt, S.C., Brookfield.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Lisa L. Derr of Schwefel and Derr, Beaver Dam.

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

NETTESHEIM, Judge.

Kenneth Haeuser appeals from a postjudgment order in a divorce action denying his motion to vacate the judgment on res judicata and full faith and credit grounds. The order also denied Kenneth's request to terminate his maintenance obligation and found him in contempt for failing to abide by the maintenance and property division provisions of the judgment.

On appeal, Kenneth contends that the family court was required to give full faith and credit to a prior judgment of divorce entered in an Alabama state court. That judgment granted a divorce, but did not address the issues of maintenance and property division. In addition, Kenneth contends that the family court erred by refusing to terminate his maintenance obligation and finding him in contempt.

We agree with Kenneth that the Alabama judgment divorcing the parties was entitled to full faith and credit by the Wisconsin family court. We therefore reverse the order to the extent that it honors the Wisconsin judgment granting a divorce. However, under the doctrine of the "divisible divorce," we conclude that the law of full faith and credit did not preclude the Wisconsin family court from addressing the further issues of maintenance and property division which were not addressed in the Alabama judgment. Therefore, we affirm the order denying Kenneth's motion to vacate the portions of the judgment addressing those issues.

We further conclude that the trial court did not misuse its discretion when it refused to terminate Kenneth's maintenance obligation and when it held him in contempt for failing to comply with certain provisions of the judgment.

FACTS

Kenneth and Margaret were married on October 4, 1969, in Kewaskum, Wisconsin. The parties moved to Alabama in the early 1980's, where they resided until October 1992, when Margaret returned to Wisconsin.

Kenneth commenced an action for divorce in Alabama on May 12, 1993. Margaret was personally served in that action in Wisconsin on June 4, 1993. On May 19, 1993, Margaret commenced the instant divorce action in Wisconsin in the Washington County Circuit Court. Kenneth was personally served in this action on June 5, 1993. Neither party has disputed the sufficiency of the service of process in either action. Nor does either party contend that he or she did not receive adequate and sufficient notice of the various ensuing proceedings in each action.

On June 11, 1993, Kenneth filed a "plea in abatement" in the Washington County Circuit Court, objecting to the jurisdiction of the Wisconsin court and seeking dismissal of the Wisconsin action. In this document, Kenneth alerted the Wisconsin family court to the pending Alabama proceeding and asserted that Margaret's Wisconsin divorce petition erroneously stated that no other action for divorce had been commenced or was pending in any other court. ¹ On June 15, 1993, Kenneth filed a second "plea in abatement" and attached exhibits demonstrating that Margaret had been served in the Alabama action.

On June 24, 1993, Margaret filed a motion in her Wisconsin action asking the family court to determine whether the court had "personal jurisdiction" over Kenneth, and whether the court could thus proceed with the Wisconsin divorce action. Margaret's motion was heard on June 29, 1993. Kenneth did not personally appear or otherwise participate in the proceeding. The appellate record does not include a transcript of that proceeding. The proceeding resulted in an order of July 12, 1993, which we will shortly detail.

In the meantime, the tenth judicial circuit court of the State of Alabama entered a final judgment of divorce on July 6, 1993. Margaret had not responded, appeared or participated in the Alabama proceeding in any manner.

Subsequently, on July 12, 1993, the Wisconsin family court issued an order resulting from the proceedings on June 29. This order stated that the Wisconsin court did "not have standing to determine whether or not the State of Alabama ha[d] obtained jurisdiction over [Margaret]" and that because Margaret had met the statutory jurisdictional requirements, Kenneth was subject to the jurisdiction of Wisconsin for the divorce action. The order further stated that Kenneth was compelled to attend all properly noticed hearings and comply with any future judicial orders.

Thereafter, on August 4, 1993, the Wisconsin family court conducted a temporary hearing. Kenneth did not appear. This hearing produced a temporary order which, inter alia, required Kenneth to pay Margaret $1083 per month as maintenance.

On August 23, 1993, Kenneth filed a further motion to dismiss the Wisconsin action, again challenging the jurisdiction of the Wisconsin court and requesting that the action be dismissed on full faith and credit grounds because the matter had already been adjudicated in Alabama. The appellate record does not reveal any proceeding on this motion, but the parties' briefs agree that the Wisconsin family court denied this motion on October 21, 1993.

The family court then scheduled the matter for trial on February 28, 1994, "to determine the issues of property division and maintenance." The matter went to trial on that date, and, again, Kenneth did not appear or participate in the proceeding. The court rendered a final judgment of divorce on March 1, 1994. This judgment divorced the parties, divided their property and awarded Margaret maintenance of $500 per month for four years.

On May 13, 1994, Margaret filed a motion asking the family court to find Kenneth in contempt of court for failing to make maintenance payments and for failing to make certain transfers of property as directed by the judgment. On July 8, 1994, Kenneth filed a further motion to vacate the judgment, and on August 17, 1994, he filed a motion seeking to reduce or terminate his maintenance obligation.

The family court heard both parties' motions on August 26, 1994. For the first time, Kenneth appeared in the action, albeit by telephone. His Wisconsin counsel personally attended. As the result of this hearing, the court issued an order denying Kenneth's motion to vacate the judgment. The court also found Kenneth in contempt for failing to comply with the maintenance and property division provisions of the judgment. ² The court imposed a sanction with purge conditions. However, the court also reduced Kenneth's maintenance obligation from $500 to $250 per month. Kenneth appeals.

DISCUSSION

1. Full Faith and Credit and Res Judicata ³

Article IV, Section 1 of the Constitution commands, "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." The purpose of the Full Faith and Credit Clause is:

to establish throughout the federal system the salutary principle of the common law that a litigation once pursued to judgment shall be as conclusive of the rights of the parties in every other court as in that in which the judgment was rendered, so that a cause of action merged in a judgment in one state is likewise merged in every other.

Anderson v. Anderson, 36 Wis.2d 455, 463, 153 N.W.2d 627, 631 (1967) (quoted source omitted).

Chapter 767, STATS., governs divorce in Wisconsin. Pettygrove v. Pettygrove, 132 Wis.2d 456, 462, 393 N.W.2d 116, 119 (Ct.App.1986). Jurisdiction of divorce cases is purely statutory, and the authority of the court is confined to those express and incidental powers that are conferred by statute. Id.; see § 767.01, STATS. In Wisconsin, the principle of full faith and credit in an action affecting the family is codified in § 767.21, STATS., which provides in part:

Full faith and credit; comity. ⁴ (1) ACTIONS IN COURTS OF OTHER STATES. (a) Full faith and credit shall be given in all courts of this state to a judgment in any action affecting the family, except an action relating to child custody, by a court of competent jurisdiction in another state, territory or possession of the United States, when both spouses personally appear or when the respondent has been personally served.

We agree with Kenneth that § 767.21(1), STATS., compelled the Wisconsin family court to give full faith and credit to the Alabama judgment of divorce entered on July 6, 1993. However, that statement alone does not end the inquiry in this case because we must further determine what the Alabama judgment includes.

The Alabama divorce judgment merely dissolves the marriage of the parties; it does not speak to maintenance or property division. Based on this limited reach of the Alabama judgment, Margaret maintains that the Wisconsin family court was not precluded from addressing the property division and maintenance issues which she asserted in this action. Kenneth, relying on principles of res judicata, argues that the Alabama judgment covers not only the dissolution of the parties' marriage, but also the maintenance and property division issues because Margaret could have raised those matters in the Alabama proceeding.

Kenneth relies on Zentzis v. Zentzis, 163 Wis. 342, 347, 158 N.W. 284, 286 (1916). There, the parties originally lived in Wisconsin. During that time, the husband transferred title to certain Wisconsin real estate to his wife. Id. at 343, 158 N.W. at 285. Later, the parties moved to Montana and established residency there. The wife then commenced a divorce action in Montana...