IN RE MARRIAGE OF RAZ v. Brown

• Decision Date: 01 May 2003
• Docket Number: No. 01-2436.,01-2436.
• Citation: 260 Wis.2d 614,660 N.W.2d 647,2003 WI 29
• Parties: IN RE the MARRIAGE OF: Jan RAZ, Petitioner-Respondent-Cross-Appellant, v. Mary BROWN, Respondent-Appellant-Cross-Respondent-Cross-Petitioner.
• Court: Wisconsin Supreme Court

260 Wis.2d 614

2003 WI 29

660 N.W.2d 647

IN RE the MARRIAGE OF: Jan RAZ, Petitioner-Respondent-Cross-Appellant, v. Mary BROWN, Respondent-Appellant-Cross-Respondent-Cross-Petitioner.

No. 01-2436.

Supreme Court of Wisconsin.

Submitted on briefs March 6, 2003.

Decided May 1, 2003.

For the respondent-appellant-cross-respondent-cross-petitioner there were briefs by Randolph E. House and Law Offices of Randolph House, Mequon, and Pamela M. Schmidt and Whyte Hirschboeck Dudek, S.C., Milwaukee.

For the petitioner-respondent-cross-appellant there was a brief by Jan Raz, pro se, Hales Corners.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is a review of an unpublished opinion of the court of appeals. Our review is limited to that part of the decision of the court of appeals that summarily reversed orders of the circuit court for Milwaukee County, Michael Guolee, Judge, relating to child support obligations and physical placement of the children of Mary Brown and her former husband, Jan Raz.¹ The court of appeals summarily reversed part of the circuit court order as a sanction against the wife for failing to file a response brief to her former husband's cross-appeal. The issue in this case is whether the court of appeals erred when it sanctioned the wife by summarily reversing the order because of her failure to file a response brief in the court of appeals.

¶ 2. The wife argues that the sanction of summary reversal imposed by the court of appeals was harsh and drastic and therefore, under State v. Smythe, 225 Wis. 2d 456, 592 N.W.2d 628 (1999), may be imposed only after a finding of egregious conduct, bad faith, or an abandonment of the appeal. According to the wife, neither her conduct nor that of her attorneys meets these criteria. The husband responds that the wife's conduct and that of her attorney satisfy the Smythe standard and therefore summary reversal in his favor was an appropriate sanction.²

¶ 3. We hold that summary reversal is a drastic sanction and that the court of appeals may not impose this sanction without finding egregious conduct, bad faith, or a litigant's abandonment of the appeal. We therefore conclude that the court of appeals erroneously exercised its discretion when it summarily reversed the order of the circuit court as a sanction against the wife without applying this standard of law. In addition, we conclude that the conduct of the wife and her counsel in the present case was not egregious, did not demonstrate bad faith, and did not amount to abandonment of the appeal.

¶ 4. Accordingly, that part of the decision of the court of appeals summarily reversing the circuit court orders on the issues raised in the husband's cross-appeal as a sanction is reversed and the case is remanded to the court of appeals for a determination of the merits of the issues raised in the cross-appeal.

¶ 5. The procedural facts of the case are undisputed. The parties were divorced in the Milwaukee County circuit court in December 1991. The judgment of divorce included a marital settlement agreement that divided custody between the parties, granting the wife primary placement, and requiring the husband to pay child support in the amount of $2,100 per month. On June 7, 1996, the circuit court modified the amount of child support at the husband's request, and the modification was upheld on appeal.³

¶ 6. The present case began on October 22, 1998, when the husband filed a request to modify child support and a motion for declaratory judgment seeking a declaration that Wisconsin's child support statutes were unconstitutional. The wife filed a counter-motion for modification of physical placement. The husband filed an additional motion asking the circuit court to find the wife in contempt for allegedly failing to participate in court-ordered family therapy and a counter-motion to modify physical placement.

¶ 7. Extensive hearings were conducted on the issues of child support and placement between September 1999 and April 2001. On November 11, 1999, before hearing further testimony on the issue of child support, the circuit court heard argument on the husband's motion challenging the constitutionality of Wisconsin's child support statutes. The circuit court ruled that the husband's constitutional claims were barred by the doctrine of claim preclusion. According to the circuit court, the husband could have fully raised these claims in his 1996 action, and because he did not, he was precluded from raising them in the present case.

¶ 8. In May 2001, the circuit court issued an order regarding physical placement and child support. The circuit court ordered physical placement of the children to be divided equally between the parties. The circuit court also vacated the existing child support order, requiring each parent to pay for the children's expenses while they were in his or her care. In addition, the circuit court found the wife in contempt for unilaterally interfering with the court's prior order to participate in therapy. The circuit court declined to assess attorney fees to either party.⁴

¶ 9. The wife appealed the circuit court's orders, challenging the modification of physical placement and child support and alleging error in finding her in contempt of court. The husband cross-appealed. He argued that Wisconsin's child support guidelines violate the Fourteenth Amendment of the U.S. Constitution, that the circuit court therefore erred by not considering his request for costs in bringing his underlying action, and that the circuit court erred by not retroactively modifying the existing child support order.

¶ 10. The wife filed a brief as appellant. The husband filed a combined response brief and cross-appellant's brief. In a letter dated March 27, 2002, the wife's counsel advised the court of appeals that the wife did not intend to file either a reply brief on the appeal or a response brief to the husband's cross-appeal.

¶ 11. The court of appeals issued an order dated April 2, 2002, directing the wife to file either a responsive brief in the cross-appeal or a brief letter stating that she had decided not to file the responsive brief with the understanding that any issues raised in the cross-appeal and not refuted may be construed by the court as conceded. The court of appeals' order reads, in relevant part, as follows:

Before accepting [respondent's letter] in lieu of a responsive brief in the cross-appeal, this court must be assured that the cross-respondent has decided not to file a responsive brief with a full understanding of the possible consequences . . . Therefore, IT IS ORDERED that counsel for Brown shall, within ten days of the date of this order, either file a responsive brief in the cross-appeal or file a brief letter indicating that Brown has decided not to file a responsive brief with the complete understanding that any issues raised in the cross-appeal and not refuted as a result of not filing the responsive brief may be construed by this court as conceded.

¶ 12. The wife's counsel responded to this order by letter dated April 4, 2002, advising the court of appeals that the wife would not file a response brief because the husband's cross-appeal lacked merit. The April 4, 2002, letter stated as follows:

Counsel for [the wife] has previously discussed with [the wife] the consequences of not filing a brief in response to that filed by [the husband]. Counsel for [the wife] and his client have discussed on several occasions the total lack of merit set forth in the [husband's] brief. It is also noted that the Attorney General's Office opted not to file a brief in response to the constitutional challenges raised in [the husband's] brief. Further, it is the opinion of [the wife's] counsel that assuming, for argument purposes, all of [the husband's] arguments were accepted by the court, they do not raise questions sufficient to challenge the constitutionality of the statutes. Also, it is [the wife's] position that should the court find the statutes unconstitutional, such a finding would require a retrial on all of the issues which are currently before the Court of Appeals with regard to the substantive aspects of the trial court's decision.

¶ 13. The court of appeals issued a decision on the merits affirming the circuit court with regard to the claims the wife raised on appeal. As to the claims raised by the husband on cross-appeal, the court of appeals summarily reversed the circuit court (without reaching the merits) "as a sanction" against the wife.⁵ The court of appeals concluded that the wife violated the rules of appellate procedure by not filing a response brief within the time set forth in Wis. Stat. § (Rule) 809.19(3)(a) (1999-2000) and explained that it declined to do her work for her.⁶ Consequently, the court of appeals summarily reversed the circuit court's order on the issues raised in the husband's cross-appeal.⁷ [1, 2]

¶ 14. A decision by the court of appeals to grant summary reversal as a sanction against a party who fails to file a brief by the date due involves an exercise of discretion.⁸ This court does not normally review a discretionary decision of the court of appeals.⁹ However, when we do review a discretionary act of the court of appeals, we review the decision as we would any other exercise of discretion.¹⁰

[3, 4]

¶ 15. A discretionary decision will be upheld if the court being reviewed examined the relevant facts, applied a proper standard of law, and used a demonstrative rational process in reaching a decision that a reasonable judge could reach.¹¹ A discretionary decision will be reversed as an erroneous exercise of discretion if we conclude that the decision was based on an improper standard of law.¹² ¶ 16. Wisconsin Stat. § (Rule) 809.83(2) (1999-2000)¹³ sets out several sanctions a court of appeals may impose in response to a litigant's failure to follow appellate rules of procedure. The sanctions include dismissal of the appeal, summary reversal,...