Hottenroth v. Hetsko

• Decision Date: 30 November 2006
• Docket Number: No. 2005AP1212.,2005AP1212.
• Citation: 2006 WI App 249,727 N.W.2d 38
• Parties: Theresa M. HOTTENROTH, Petitioner-Appellant,<SMALL><SUP>†</SUP></SMALL> v. Cyril M. HETSKO, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

727 N.W.2d 38

2006 WI App 249

Theresa M. HOTTENROTH, Petitioner-Appellant,^† v. Cyril M. HETSKO, Respondent-Respondent.

No. 2005AP1212.

Court of Appeals of Wisconsin.

Submitted on Briefs August 8, 2006.

Opinion Filed November 30, 2006.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Shawna

L. Lee and Raymond E. Krek, of Krek & Associates, S.C., Jefferson.

On behalf of the respondent-respondent, the cause was submitted on the brief of Michael S. Heffernan and Allan R. Koritzinsky, of Foley & Lardner L.L.P., Madison.

Before LUNDSTEN, P.J., and DYKMAN and VERGERONT, JJ.

¶ 1 VERGERONT J.

Theresa Hottenroth appeals the judgment granting a divorce from Cyril Hetsko. She also appeals the order denying her post-judgment motions for relief from the judgment and for reconsideration. The judgment of divorce incorporated numerous stipulations of the parties. The issues on appeal are whether the circuit court erred by: (1) refusing to allow Hottenroth to withdraw from one stipulation before court approval; (2) refusing to allow her to withdraw from all stipulations, as a matter of right, after court approval but before entry of the written judgment; (3) denying her post-judgment motions for relief under WIS. STAT. § 806.07¹ and for reconsideration; (4) failing to conduct a sufficient inquiry before approving the stipulations; and (5) ordering her, on the ground of overtrial, to contribute to Hetsko's attorney fees and pay all guardian ad litem fees for the post-judgment motions.

¶ 2 We conclude as follows. (1) The circuit court's factual determination that neither Hottenroth nor her attorney asked to withdraw from the one stipulation before the court approved it is not clearly erroneous. (2) Hottenroth's right to withdraw from the stipulations ended when the court approved them, not when the written judgment was entered. (3) The circuit court did not erroneously exercise its discretion in denying Hottenroth's post-judgment motions. (4) The circuit court did not erroneously exercise its discretion in approving the stipulations. (5) The circuit court did not erroneously exercise its discretion in ordering Hottenroth to contribute to Hetsko's attorney fees and pay all the post-judgment guardian ad litem fees because of overtrial on the post-judgment motions. Accordingly, we affirm on all issues.

BACKGROUND

¶ 3 At the time of the divorce trial, which took place in November 2004, Hottenroth and Hetsko had been married approximately sixteen years and had a ten-year-old child. Both Hottenroth and Hetsko had been established in their careers— Hottenroth as a lobbyist and Hetsko as a physician—at the time they married. At the time of the divorce trial, Hottenroth was fifty-two and was an in-house attorney for an energy company. Hetsko was sixty-two and was working as a medical consultant.

¶ 4 At the beginning of the two-day divorce trial, the parties, both represented by counsel, presented a written stipulation regarding child custody and placement. After both parties were questioned by their attorneys on their agreement to the stipulation and the guardian ad litem recommended that the court adopt it, the court found it to be in the best interests of the child and signed it.

¶ 5 After a recess that morning, the parties reached four additional stipulations: a monthly amount for child support, a waiver of maintenance for both parties, a coverture fraction for dividing Hetsko's Dean pension, and a division of the remainder of the estate with 62-1/2 percent to Hetsko and 37-1/2 percent to Hottenroth. We will refer to this last stipulation as the "percentage stipulation." The disputes remaining to be tried concerned what was to be included in the marital estate and the valuation of certain items.

¶ 6 Hottenroth's counsel explained the terms of the four stipulations to the court. In response to the court's questions, Hottenroth affirmed that her attorney had accurately described what she had agreed to, and she stated her understanding of the percentage stipulation. The court received affirmative answers from Hetsko to similar questions. The trial then proceeded. After the close of testimony that day, the court returned to the matter of the four stipulations, found them to be fair and reasonable, accepted them and stated that they would be incorporated into the judgment. More details of what took place at this time will be discussed later in the opinion.

¶ 7 During the second day of trial, the parties entered into more stipulations, which were explained to the court. After the parties were questioned by their attorneys and the court, the court found these stipulations to be fair and reasonable, approved them, and directed that they be incorporated into the judgment. The only issue that remained in dispute was a bill, which the court ruled should be divided equally. On the motion of Hottenroth's attorney for a judgment of divorce based on all the stipulations, the court granted a judgment of divorce and directed that all the stipulations it had approved be incorporated into the written judgment.

¶ 8 Four months after the judgment of divorce was granted, but before entry of the written judgment, Hottenroth, with new counsel, filed a motion for "relief from stipulated divorce judgment" and for a trial. The grounds were that she did not fully understand or agree to the terms of the stipulations, she was under duress because of the effects of domestic abuse inflicted by Hetsko, she was mistaken on certain points of law and on the result of the percentage stipulation, and the property division was unfair. Shortly thereafter, the court entered the written findings of fact, conclusions of law, and judgment of divorce. Hottenroth then moved for reconsideration, alleging the same grounds as in the motion for relief from judgment and, in addition, that the court erred in accepting the percentage stipulation.

¶ 9 After a two-day evidentiary hearing, the circuit court denied Hottenroth's motions. The court determined that neither Hottenroth nor her trial attorney had asked to withdraw from any stipulation prior to court approval, and it concluded that she was not entitled to do so as a matter of right after court approval. The court rejected Hottenroth's contention that it did not fulfill its duty before approving the stipulations, and it determined that Hottenroth had understood them and agreed they were fair; in this latter ruling the court focused on the percentage stipulation because it determined that this was the only stipulation on which there was arguably any question. The court also determined that Hottenroth had not established that she had entered into any stipulation based on mistake, nor had she established that domestic abuse, if any had occurred, had interfered with her ability to understand the proceedings and assert her wishes. Finally, the court concluded that Hottenroth had not established that, as she claimed, the percentage stipulation had actually resulted in an 80/20 split and was thus unfair.

¶ 10 The court ordered Hottenroth to pay for three hours of Hetsko's attorney's time, finding that her attorney had conducted the hearing in a manner that constituted overtrial. The court also ordered Hottenroth to pay all the guardian ad litem's fees for the post-judgment motion because, the court concluded, she had presented no basis in fact or law to reopen the stipulation on custody and placement.

DISCUSSION

¶ 11 On appeal, Hottenroth contends the circuit court erred by: (1) refusing to allow her to withdraw from the percentage stipulation before court approval; (2) refusing to allow withdrawal from all stipulations, as a matter of right, after court approval but before entry of the written judgment; (3) denying her motions for relief under WIS. STAT. § 806.07 and for reconsideration; (4) failing to conduct a sufficient inquiry before approving the stipulations; and (5) ordering her to contribute to Hetsko's attorney fees and pay all the guardian ad litem fees for the post-judgment motions because of overtrial. We address each of these contentions and conclude the circuit court did not err or erroneously exercise its discretion on any of these points.

I. Withdrawal from Stipulations before Court Approval

¶ 12 Parties to a divorce may, "subject to the approval of the court, stipulate for a division of property, for maintenance payments, for the support of children . . . or for legal custody and physical placement, in case a divorce ... is granted...." WIS. STAT. § 767.10(1). A stipulation under this provision is "merely a `recommendation jointly made by [the parties in a divorce action] to the court suggesting what the judgment, if granted, is to provide.'" Van Boxtel v. Van Boxtel, 2001 WI 40, ¶ 13, 242 Wis.2d 474, 625 N.W.2d 284 (citation omitted).

¶ 13 Parties are free to withdraw from a stipulation until "it is incorporated into the divorce judgment," see id., ¶ 26. With respect to this holding in Van Boxtel, Hottenroth and Hetsko agree that it means a party is free to withdraw from a stipulation before the court approves it.² They disagree on whether Hottenroth attempted to withdraw from the percentage stipulation before court approval.

¶ 14 Hottenroth argues that she attempted to withdraw from the percentage stipulation before the court approved it, but the court would not allow her to do so. She challenges the court's post-judgment determination that neither she nor her attorney asked to withdraw from this stipulation before the court approved it. Hottenroth relies on the following interchange that occurred at the end of the first day of the divorce trial to show that she did attempt to withdraw:

The Court: ... for the record, ... there were some oral agreements that were put on the record earlier, and so that all of the stipulations that are currently ones that have been presented to me are treated in the same fashion, I will approve them as being fair and reasonable.

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