In re Marriage of Sandberg v. Donahue, No. 2007AP2719 (Wis. App. 12/11/2008), 2007AP2719.

• Decision Date: 11 December 2008
• Docket Number: No. 2007AP2719.,2007AP2719.
• Parties: In re the Marriage of: Sara M. Sandberg, Petitioner-Respondent, v. John P. Donahue, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

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In re the Marriage of: Sara M. Sandberg, Petitioner-Respondent, v. John P. Donahue, Respondent-Appellant.

No. 2007AP2719.

Court of Appeals of Wisconsin, District IV.

Opinion Filed: December 11, 2008.

APPEAL from an order of the circuit court for Dane County: STEVEN D. EBERT, Judge. Affirmed in part, reversed in part and cause remanded.

Before Dykman, Vergeront and Lundsten, JJ.

¶ 1 PER CURIAM.

This divorce proceeding between Sara Sandberg and John Donahue is before us for a fourth time. After the first appeal we remanded to the circuit court for further proceedings. Sandberg v. Donahue, No. 03-0615, unpublished slip op. (WI App March 18, 2004). After the second appeal we again remanded to the circuit court for additional proceedings. Sandberg v. Donahue, No. 05-485, unpublished slip op. (WI App June 22, 2006). On April 17, 2007, we summarily affirmed a third appeal by Donahue, explaining that the circuit court had followed our instructions on remand, so there were no issues for appeal because Donahue was not allowed to raise other issues pertaining to the original judgment of divorce and first appeal. Sandberg v. Donahue, No. 07-310, unpublished slip. op. (WI App April 17, 2007). Donahue now appeals the circuit court's decision made after he filed additional post-judgment motions in the circuit court.

¶ 2 Donahue argues that the circuit court erroneously denied his motion to enforce the property division judgment. He contends that Sandberg received overpayments from two retirement accounts pursuant to the initial judgment of divorce, which was later revised on appeal in Donahue's favor, and that she must return the funds to him in accord with the property division as amended by the first appeal. The circuit court's written decision entered on August 21, 2007, which is the subject of this appeal, does not explicitly state that the court decided this issue, which was addressed by the family court commissioner in an order dated May 2, 2007. The circuit court's decision refers only to the orders of the court commissioner dated January 30 and February 14, 2007. However, the transcript of the hearing shows that the court did in fact consider the May 2 family court commissioner's order, and, at the end of the circuit court's written decision, the court states that "[i]n all regards not specifically mentioned, the Commissioner's decisions, and the rationale therefore, are affirmed." Therefore, this issue is properly before us in the context of this appeal.

¶ 3 Donahue's first argument is that Sandberg received too large a share of his TSP account. He contends in his opening brief that she received $56,438, but that she should have received only $43,930. In the reply brief Donahue concedes that Sandberg is correct in pointing out that she was entitled to an increased award to account for tax consequences. However, he still contends that she received an overpayment because she received $439 more than she should have received: the initial judgment awarded her $44,369, but the revised judgment awarded her only $43,930.

¶ 4 The problem with this argument is that Donahue did not challenge the discrepancy between the initial judgment entered January 24, 2003, and the revised judgment entered January 13, 2005, in the appeal he took from the January 13, 2005 revised judgment. Because Donahue did not raise the issue in the context of that appeal, he is foreclosed from raising the issue now. Moreover, Donahue improperly failed to raise this argument until his reply brief. See State v. Marquardt, 2001 WI App 219, ¶14 n.3, 247 Wis. 2d 765, 635 N.W.2d 188 (if an appellant fails to discuss an alleged error in its main brief, an appellant may not do so in the reply brief). Therefore, we reject this argument.

¶ 5 Donahue next argues that Sandberg received an overpayment of $3,750 from his WROS account. He contends that Sandberg received $7,778 pursuant to the original judgment, but that she should have received only $4,028 as provided by the judgment as revised on appeal.¹ The commissioner's decision, adopted by the circuit court, concluded that Donahue was not entitled to relief because he did not file a motion for relief from the judgment under Wis. Stat. § 806.07 (2005-06).² We reject this reasoning. Donahue's motion for relief was properly before the circuit court because Sandberg received more from this account under the original judgment than she was entitled to based on the judgment as revised on appeal. Donahue is entitled to redress because we revised downward the amount of Sandberg's award from the WROS account, but Fidelity had already paid Sandberg the higher amount pursuant to the original judgment. We therefore remand for the circuit court to consider Donahue's motion to enforce the judgment by requiring Sandberg to transfer to Donahue the funds from the WROS account that she has already received, but to which she was not entitled.³

¶ 6 Donahue next argues that the family court commissioner did not have authority to find Donahue in contempt of court for failure to pay the daycare expenses that he was ordered to pay. He contends that a commissioner's authority to enforce child court orders in WIS. STAT. § 757.69(1)(p)3. makes no mention of daycare expenses. We reject this argument. We conclude that the court commissioner had authority to make rulings on contempt under this statute because daycare expenses are inextricably linked with child care. Donahue also contends that a contempt order is not valid unless signed by a judge. Again, we disagree. In addition to the commissioner's authority under Wis. Stat. § 757.69(1)(p)3., Wis. Stat. chs. 767 and 785, read together, provide authority for the court commissioner to issue a contempt order. This is because under WIS. STAT. § 767.001(1b) "court" includes court commissioners, so court commissioners have the same authority as the circuit court for the purposes of ch. 767. In WIS. STAT. § 767.77(3), courts (and therefore court commissioners) are authorized to use any appropriate remedy to enforce a judgment or order, including contempt of court under ch. 785. Therefore, court commissioners are authorized to enforce judgments and orders with contempt sanctions.⁴

¶ 7 Donahue next makes several arguments pertaining to child support. He contends that the circuit court erred in calculating child support because it based its support calculations on a four-week earning period,...