Lorscheter v. Lorscheter

• Decision Date: 05 November 1971
• Docket Number: No. 137,137
• Citation: 52 Wis.2d 804,191 N.W.2d 200
• Parties: Matthias J. LORSCHETER, Respondent, v. Ellen LORSCHETER, Appellant.
• Court: Wisconsin Supreme Court

Page 200

191 N.W.2d 200

52 Wis.2d 804

Matthias J. LORSCHETER, Respondent, v. Ellen LORSCHETER, Appellant.

No. 137.

Supreme Court of Wisconsin.

Nov. 5, 1971.

Rehearing Denied Jan. 4, 1972.

This divorce action was commenced on January 13, 1969, by the respondent, Matthias J. Lorscheter, in the county court of Grant county by serving a summons upon his wife, Ellen, appellant herein. Attorney Melvin F. Bonn filed a notice of retainer on behalf of Mrs. Lorscheter after she had retained him in the pending proceedings. On May 13, 1969, a complaint was served upon Attorney Bonn alleging that the ground for divorce was cruel and inhuman treatment. A bill of particulars was later filed after demand alleging specific instances of cruel and inhuman treatment. On August 12, 1969, the parties and their attorneys signed a stipulation agreeing that plaintiff-respondent could proceed to take a default divorce at any time without further notice to appellant. The parties further agreed to a property settlement, the primary provision of which was that respondent would pay appellant, in lieu of alimony, $10,000 at the time of entry of judgment.

On September 26, 1969, with appellant in default, trial was held in the Grant county court, Hon. William L. Reinecke presiding. At that hearing Mrs. Lorscheter was represented by Attorney Bonn. Also in attendance was Attorney Douglas Nelson, who requested the court to substitute him for Mr. Bonn as counsel for appellant. The court refused to do this and further refused to allow Attorney Nelson to file an answer and counterclaim for the defendant-appellant, the court being of the opinion that the matter should proceed as a default. The court proceeded to take testimony of the respondent and after the family court commissioner indicated his support of the prayer for divorce, the court granted a divorce according to the terms of the stipulation with the added requirement that the settlement check of $10,000 be made payable both to Mrs. Lorscheter and Attorney Bonn.

On October 24, 1969, a hearing was held before the same court on appellant's motion to set aside the judgment; in an affidavit supporting that motion appellant claimed the judgment was obtained due to 'mistake, inadvertence, and excusable neglect on her part.' At the outset of the hearing, the court granted Mrs. Lorscheter permission to substitute Mr. Nelson for Mr. Bonn as her attorney. In her testimony, appellant explained away the specific alleged acts of cruel and inhuman treatment on the basis of which the respondent had been granted a divorce. In turn, she alleged that respondent had abused her during the marriage. She further testified that from the time of the service of the summons in January, 1969, until early in May, 1969, she and the respondent spoke frequently of reconciliation and had sexual intercourse at her apartment 'almost once a week' during the period. Respondent, called adversely, admitted speaking to appellant of reconciliation but denied having sexual relations with her after the date of the commencement of the action in January, 1969. The court, after hearing the testimony, concluded that none of the testimony of the appellant was relevant to whether her 'mistake, inadvertence, surprise or excusable neglect' had been shown as required by sec. 269.46(1), Stats., and denied the motion to set aside the judgment. Mrs. Lorscheter appeals from the judgment of divorce and the order denying her motion to set aside the judgment.

Douglas Nelson, Madison, for appellant.

Hoskins & Brown, Lancaster, for respondent.

WILKIE, Justice.

Although a number of issues are raised in the briefs, they may be considered in three questions:

1. Did the trial court err in failing to allow a substitution of attorneys on the day of the trial?

2. Did the court abuse its discretion in failing to grant appellant's motion to vacate the divorce judgment?

3. Did the court abuse its discretion in ordering that the property settlement tendered appellant be made payable both to appellant and her first attorney? Substitution of Attorney on the Day of Trial.

Art. VII, sec. 20, of the Wisconsin constitution ¹ guarantees any suitor the right to be represented by the attorney of his choice. Sec. 256.27(3), Stats., provides the procedure for substituting attorneys in a pending action. That statute reads:

'Substitution of Attorneys. No order for the substitution of an attorney for a party shall be made without consent signed by such party and his attorney; or for cause shown and upon such terms as shall be just, and on such notice as the court or judge shall direct.'

At the September 26th hearing the record clearly establishes that Mrs. Lorscheter and Attorney Nelson had not met the statutory requirements. There was no consent signed by her and Attorney Bonn. ² It is also apparent from the record that Attorney Bonn wanted to receive his legal fees prior to consenting to a change of counsel. Without such consent being submitted, the statute contemplates that an attorney can be substituted 'for cause shown.' No cause was shown by Mrs. Lorscheter or Mr. Nelson.

Even had the provisions of the statute been complied with, sec. 256.27(3), Stats., does not grant a party the absolute right to substitute his attorney during the pendency of the litigation. A substitution of counsel may be denied where it will unduly interfere with the administration of justice. ³ In Estate of Bobo ⁴ this court affirmed a lower court's denial of a request to substitute attorneys for an estate made by the sole heir when the court found 'good cause' to continue the original attorney.

In the present case Attorney Nelson made no effort to inform the court prior to the date of the hearing that Mrs. Lorscheter desired to substitute attorneys. This despite the fact that Mr. Nelson first contacted Mr. Bonn on the matter a month earlier. At the September 26th hearing the court decided that in view of the fact that defendant was more than four months in default it would not allow the substitution. The statute in question requires that the terms of the substitution be just. The court concluded that justice precluded substitution at that point in the litigation. In view of Attorney Nelson's failure to conform to the statutory requirements for substitution, his unexplained delay in bringing this matter to the attention of the court, and the obvious detriment such a substitution would be for respondent, the county court did not violate either the statutory or the constitutional provision by denying the motion.

Abuse of Discretion in Denying Vacation of Judgment.

Appellant sought to vacate the divorce judgment and to file an answer and counterclaim. The county court held a hearing on the matter to determine whether to take action pursuant to sec. 269.46(1), Stats., which provides:

'Relief from judgments, orders and stipulations; review of judgments and orders. (1) The court may, upon notice and just terms, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him obtained, through his mistake, inadvertence, surprise or excusable neglect and may supply an omission in any proceeding. In addition to the required affidavits, all motions to vacate a judgment entered upon default or cognovit and to obtain a trial upon the merits shall be accompanied by a proposed verified answer disclosing a defense.'

In disposing of the matter, the trial court specifically found no mistake, inadvertence, surprise or excusable neglect. In its determination, the court decided that it did not matter whether or not Mr. Lorscheter had committed perjury or false swearing at the default hearing. It considered that this was 'not an issue here today.' The court relied on Gray v. Gray, ⁵ in which this court affirmed a lower court's determination that a divorce judgment should not be set aside because of perjury. But in Gray the perjury went to a matter not affecting the basic divorce judgment. Gray does not flatly hold that perjury can never form a proper basis for setting aside a judgment. If there was perjury as to the acts of condonation, then the judgment was obtained through appellant's 'mistake, inadvertence, surprise or excusable...