Marriage of Larsen, In re, 90-1194

• Decision Date: 08 January 1992
• Docket Number: No. 90-1194,90-1194
• Citation: 165 Wis.2d 679,478 N.W.2d 18
• Parties: In re the MARRIAGE OF Gaylon LARSEN and Emiliann Larsen. STATE ex rel. Emiliann LARSEN, Petitioner-Respondent, v. Gaylon LARSEN, Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 18

478 N.W.2d 18

165 Wis.2d 679

In re the MARRIAGE OF Gaylon LARSEN and Emiliann Larsen.

STATE ex rel. Emiliann LARSEN, Petitioner-Respondent, v. Gaylon LARSEN, Respondent-Appellant-Petitioner.

No. 90-1194.

Supreme Court of Wisconsin.

Argued Oct. 20, 1991.

Decided Jan. 8, 1992.

Donald T. Lang, Asst. State Public Defender, for respondent-appellant-petitioner.

Howard W. Cameron, Jr. and Barron County Family Support Agency, Barron, for plaintiff-respondent.

CECI, Justice.

This case is before the court on petition for review of a published decision of the court of appeals, In re Marriage of Larsen, 159 Wis.2d 672, 465 N.W.2d 225 (Ct.App.1990). The court of appeals affirmed an order by the circuit court for Barron County, James C. Eaton, Circuit Judge, finding Gaylon Larsen (Larsen) in contempt for failure to make child support payments and committing Larsen to the Barron County jail for 90 days. The circuit court order also granted Larsen an opportunity to stay the jail commitment and purge the contempt if he would seek work and undergo treatment for Post Traumatic Stress Disorder (PTSD).

The court of appeals affirmed the order, rejecting Larsen's arguments that the circuit court exceeded its authority and violated his constitutional right to due process by ordering inpatient treatment as a purge condition. Because we find the purge condition within the circuit court's authority and not contrary to Larsen's due process rights, we affirm the decision of the court of appeals.

The facts are as follows. Gaylon F. Larsen and Emiliann Larsen were divorced in 1984. Since that time, Larsen has been found in contempt for nonpayment of child support twice, including the contempt at issue here. Two other times Larsen has had contempt proceedings brought against him, once for not paying child support and once for not complying with a seek-work order. Three times the court had to reduce the level of Larsen's support payments due to his inability to pay. In total, after the divorce in 1984, Larsen had been in circuit court six times for hearings relative to child support.

Larsen is a Vietnam War veteran and has been diagnosed as having PTSD. He has had difficulty finding and maintaining employment, due in great part to PTSD. In one of the prior contempt proceedings, the circuit court had ordered Larsen, pursuant to a stipulation by the parties, to continue the PTSD counseling program he had entered. Larsen apparently refused to comply with that order, because by the time of the contempt at issue here, he was no longer receiving treatment.

On September 7, 1989, an order to show cause was served on Larsen, seeking a finding of contempt for his nonpayment of child support and noncompliance with a seek-work order. At the hearing, Larsen argued, and the court agreed, that his inability to find a job was directly related to his PTSD. The court found that PTSD was "most probably" Larsen's "major problem" and that he would "never obtain employment until this problem [was] taken care of...." The court specifically found that the PTSD interfered with the way Larsen presented himself for employment and that he refused treatment for PTSD. Larsen was clearly "on edge," and "his tenor, tone and deportment indicate[d] that he [was] simply one bitter guy...." Finally, the court found that if it simply left things as they were, nothing would get better.

Therefore, the court concluded that Larsen was in contempt under sec. 785.01(1)(b), Stats. The remedial sanction imposed was a 90-day commitment to the Barron County jail under sec. 785.04(1)(b), Stats. As noted above, the court granted conditions whereby the commitment could be stayed and the contempt purged if Larsen would agree to receive treatment for PTSD and seek work.

Larsen did not appeal the finding of contempt, the 90-day jail commitment, or the seek-work purge condition. He only appealed the PTSD treatment purge condition. Whether the circuit court's granting of the purge condition exceeded the court's authority or violated Larsen's due process rights are both questions of law. We review questions of law without deference to the decisions of the lower courts. Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984).

At the outset, we note that Larsen, the state (on behalf of Emiliann Larsen), and the court of appeals have all interpreted the contested purge condition as requiring inpatient treatment for PTSD. The relevant part of the order states that "Gaylon F. Larsen shall, on or before January 20, 1990, notify the Veterans Administration that he is ready, willing and able to follow through on the program established for treatment of Post Traumatic Stress Syndrome including inpatient treatment." We do not read that phrase, or the order in its entirety, as requiring inpatient treatment. Under the order's wording, the treatment program could be inpatient or outpatient. A search of the record does not reveal whether Judge Eaton intended that the treatment be inpatient or outpatient. The record also does not reveal the level of intrusiveness of inpatient treatment for PTSD or how substantially Larsen's liberty would be infringed upon by the inpatient treatment program.

Larsen urges us to find that the purge condition granted to him by the circuit court is tantamount to an involuntary commitment under ch. 51, Stats. He argues that he has the right to receive all the due process safeguards afforded under ch. 51. The state's brief concedes that if we find the purge condition tantamount to an involuntary commitment, then Larsen must be awarded the due process safeguards of ch. 51.

Under the facts of this case, we do not find the circuit court's granting of the purge condition tantamount to an involuntary commitment under ch. 51. Civil contempt is remedial or coercive, i.e., designed to enforce a private right of a party in an action. State v. King, 82 Wis.2d 124, 130, 262...