IN RE MARRIAGE OF MOGGED v. Mogged

Decision Date28 December 1999
Docket NumberNo. 99-0346.,99-0346.
Citation607 N.W.2d 662,233 Wis.2d 90,2000 WI App 39
PartiesIN RE the MARRIAGE OF: Otto MOGGED, III, Petitioner-Appellant-Cross-Respondent, v. Margaret A. MOGGED, Respondent-Respondent-Cross-Appellant.
CourtWisconsin Court of Appeals

On behalf of the petitioner-appellant-cross-respondent, the cause was submitted on the briefs of Frederick J. Mohr of Green Bay.

On behalf of the respondent-respondent-cross-appellant, the cause was submitted on the briefs of Tim Osicka of Wausau.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. PER CURIAM.

Otto Mogged, III, appeals an order vacating a previous maintenance order and setting his maintenance obligation at $2,000 per month. Margaret Mogged cross-appeals the order, contending that $2,000 per month is insufficient. We conclude that the trial court erroneously exercised its discretion when it vacated the previous maintenance order and therefore reverse and remand for further proceedings consistent with this opinion. Additionally, because Margaret's cross-appellant's brief fails to comply with rudimentary appellate procedure, see RULE 809.19, STATS., we strike the brief and dismiss the cross-appeal. See Rule 809.83(2), STATS.

1. Facts

¶ 2. The Moggeds were married in 1967 and divorced in 1992.2 Of their three children, only one was a minor at the time of the divorce. Otto was president of a printing company and vice-president of a manufacturing company. The court found that his annual income at the time of the divorce was approximately $148,000 per year.

¶ 3. The record indicates that Margaret was not employed outside the home during the marriage. The court found that Margaret received $1,800 annually from an inheritance that would end within several years. The trial court awarded Margaret $2,000 per month child support and $2,800 per month maintenance. The maintenance term was indefinite.3 The court ordered an equal division of the parties' substantial assets.

¶ 4. In June 1995, Margaret sought to increase maintenance based upon a substantial change in economic circumstances. The trial court found no basis to modify maintenance and denied her request.

¶ 5. In October 1997, Otto sought a reduction in his maintenance obligation. Margaret had completed a course of instruction at a technical college and obtained full-time employment, starting at $2,000 per month. The parties' youngest child was graduated from high school, and Otto's child support obligation had ceased.

¶ 6. Margaret and her attorney did not appear at the October 28 hearing on Otto's motion. The record reflects that Margaret's attorney, Tim Osicka, had written the trial court requesting a continuance due to a scheduling conflict. At the hearing, the trial judge explained that he did not receive Osicka's request until late on a Friday afternoon when he returned to his office from vacation and had no opportunity to respond to it before the hearing. The court noted that although Otto's attorney did not object to a short continuance, Osicka desired a long one. The court observed:

I assumed that the attorney would be getting back to me if he needed to. And, of course, Mr. Osicka never did. . . . I guess what bothers me most is that he knew about this hearing for such a long time and he knew also that he had a trial starting today.4 I really don't understand why he waited until almost the last minute to try to change things.

The court denied Margaret's continuance request and in the absence of proofs to the contrary found that Margaret's employment increased her income by $2,000 per month. It granted Otto's motion and reduced his maintenance obligation to $800 per month.

¶ 7. In February 1998, Margaret brought a motion to increase maintenance based upon a change in economic circumstances pursuant to § 767.32, STATS.5 After the hearing before a different judge, the court found that it was "clearly unfair" that Margaret did not have an opportunity to present her evidence at the October hearing.6 It ruled that Margaret's "motion to reopen the October 28, 1997 hearing is granted." The court also found a change of circumstances due to Margaret's employment. Based upon the parties' respective financial circumstances, it set maintenance at $2,000 per month, effective November 1, 1997. The court ruled that this sum reflected an amount reasonably necessary to sustain Margaret "in a standard of living consistent with the marriage before the divorce."

2. Otto's appeal

¶ 8. Otto essentially argues that the trial court erroneously exercised its discretion when it reopened the previous maintenance order and increased his maintenance obligation. We agree. A court may relieve a party of an order for the reasons stated in § 806.07(1), STATS.7 Once the court has determined that grounds exist, its decision to grant relief is discretionary. Johnson v. Johnson, 157 Wis. 2d 490, 497, 460 N.W.2d 166, 169 (Ct. App. 1990). Even if the court finds grounds to reopen a judgment, it may in its discretion determine that there are factors militating against reopening it. Id. at 498, 460 N.W.2d at 169. A court erroneously exercises its discretion if it fails "to exhibit a reasoned, illuminative mental process with which to logically connect its decision, findings and conclusions. . . ." Steinke v. Steinke, 126 Wis. 2d 372, 388-89, 376 N.W.2d 839, 847 (1985). The court must not stop at reciting its findings and conclusions; an exercise of discretion must set forth a discussion of factors relied upon in reaching a conclusion. Id. at 389, 376 N.W.2d at 847.

¶ 9. We may not exercise discretion for the trial court. See Wisconsin Ass'n of Food Dealers v. City of Madison, 97 Wis. 2d 426, 434, 293 N.W.2d 540, 545 (1980)

. Although not required to search the record for unexpressed reasons that might have occurred to the trial court for the result it reached, see Steinke, 126 Wis. 2d at 386,

376 N.W.2d at 846, we may review the record to determine whether it discloses a rational basis supporting the court's discretionary decision. Schauer v. DeNeveu Homeowner's Ass'n, 194 Wis. 2d 62, 71, 533 N.W.2d 470, 473 (1995). When the record fails to disclose a basis for the court's decision, we reverse and remand to permit the trial court to articulate its reasoning process.

¶ 10. Here, the trial court did not find that any reason set forth in § 806.07, STATS., existed. It did not discuss which factors led to its conclusion that it was "clearly unfair" that Margaret did not have an opportunity to present her evidence when, after receiving notice of the hearing, she did not appear. While § 806.07(1) contemplates that the court may grant relief from an order upon such terms as are just or fair, its decision must be supported by one or more of the enumerated grounds and an expression of its reasoning process. ¶ 11. Here, a search of the record proves futile. Our review does not permit us to say how the trial court arrived at its decision to reopen the October 1997 proceedings. Our search is unaided by Margaret's brief, which fails to provide a reasoned discussion of potential grounds to support her argument that the court reached a proper result.

¶ 12. Instead, Osicka engages in hyperbole.8 Without challenging the trial court's finding that he received notice of the hearing date, he characterizes the October 1997 proceeding as "ex parte" and asserts that he has "little regard" for the judge who presided. With neither explication nor citation to supporting authority, he labels the denial of the last-minute continuance request as "outrageous" and made "under circumstances where Attilla the Hun would have been granted a continuance." Osicka argues that "[t]his is not a case of excusable neglect," but one of "equity/fairness." He argues that the trial court's "lack of courtesy and his almost callous proceeding to hearing on October 28th certainly is a basis [to] vacate[ ] the October 1997 order."

¶ 13. Margaret's brief cites generally to § 806.07, STATS., but not to any specific subsection. One potential interpretation of her argument would be that subsec. (h), referring to "any other reasons justifying relief," applies. The record, however, fails to indicate that the trial court relied on subsec. (h). Although subsec. (h) is to be liberally construed to allow relief from judgments whenever appropriate to accomplish justice, see Conrad v. Conrad, 92 Wis. 2d 407, 414, 284 N.W.2d 674, 677 (1979),

it is appropriately used "only when the circumstances are such that the sanctity of the final judgment is outweighed by `the incessant command of the court's conscience that justice be done in light of all the facts.'" State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 550, 363 N.W.2d 419, 426 (1985) (quoted source omitted; emphasis in original). "Because subsection (h) invokes the sensibilities of the court, the court must consider a wide range of factors. . . ." Id. at 552, 363 N.W.2d at 427.9 The record fails to show the court considered any applicable factors and the trial court's brief reference to fairness is insufficient to support a subsec. (h) analysis.

¶ 14. The record indicates that Osicka made an eleventh-hour request for a long adjournment and chose not to appear without confirming whether his request had been granted. The grant of a continuance is not a matter of right. See State v. Wedgeworth, 100 Wis. 2d 514, 520, 302 N.W.2d 810, 814 (1981).10 The court proceeded in his absence and granted relief based on the record before it. Neither the record of the hearing on Margaret's February 1998 motion nor her appellate brief provides any "reasoned, illuminative mental process" to logically connect findings with the statutory factors under § 806.07, STATS., demonstrating a rational basis to grant relief from the October 1997 order. Steinke, 126 Wis. 2d at 388-89,376 N.W.2d at 847.

[1]

¶ 15. We reverse the trial court's order granting relief from the October 1997 order...

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