Niemi v. Hying

• Decision Date: 30 March 2021
• Docket Number: Appeal No. 2019AP1433
• Citation: 397 Wis.2d 242,959 N.W.2d 79 (Table),2021 WI App 27
• Parties: In re the Marriage of: Kimberly C. NIEMI f/k/a Kimberly Hying, Joint-Petitioner-Respondent, v. Martin B. HYING, Joint-Petitioner-Appellant.
• Court: Wisconsin Court of Appeals

397 Wis.2d 242

959 N.W.2d 79 (Table)

2021 WI App 27

In re the Marriage of: Kimberly C. NIEMI f/k/a Kimberly Hying, Joint-Petitioner-Respondent, v. Martin B. HYING, ^† Joint-Petitioner-Appellant.

Appeal No. 2019AP1433

Court of Appeals of Wisconsin.

March 30, 2021

PER CURIAM.

¶1 In this post-divorce litigation, Martin Hying, pro se , appeals a circuit court order entered on April 23, 2019, determining that he owes the guardian ad litem $2,663.08 in attorney's fees.We affirm the order.We also conclude that Hying's appeal is frivolous.We therefore remand this matter to the circuit court for a determination of costs, fees, and reasonable attorney's fees related to this appeal, and we impose a limitation on Hying's future litigation in this court.

Background

¶2 Hying and Kimberly Niemi f/k/a/ Hying divorced in November 2007.Hying has pursued numerous postjudgment appeals and writs, and we have determined that three of his appeals were frivolous.¹Most recently, we reviewed a circuit court order arising out of a contempt proceeding in which the circuit court permitted Hying to avoid incarceration by making certain payments to the guardian ad litem and to Niemi's attorney.SeeNiemi v. Hying( Hying X ), No. 2017AP313, unpublished op. and order (WI App July 31, 2018).We affirmed, and we concluded that the appeal was frivolous.Seeid. at 2.Following remittitur, Attorney Phillip Arieff, who serves as the current guardian ad litem for the parties’ minor child, filed a motion in November 2018 to adjudicate guardian ad litem fees.

¶3The circuit court held a hearing on March 20, 2019, and received testimony and other evidence from Hying and from Attorney Arieff.The circuit court credited Attorney Arieff's testimony that he charges an hourly rate in this case that is at the low end of the range of rates normally charged in Milwaukee County by guardians ad litem with his experience and credentials.The circuit court also credited Attorney Arieff's testimony that his work in this case was necessary in the performance of his role as advocate for the best interests of the minor child and that $2,663.08 was Hying's share of the fee for that work.The circuit court therefore awarded Attorney Arieff that amount and required Hying to pay the fee at the rate of $150 per month.Hying appeals.

Discussion

¶4 Compensation of a guardian ad litem rests in the discretion of the circuit court.SeeLacey v. Lacey , 45 Wis. 2d 378, 389, 173 N.W.2d 142(1970);see alsoWIS. STAT. § 767.407(6)(2017-18).²The standard that we apply when reviewing discretionary decisions is well known and requires only a brief summary here.We will uphold a discretionary decision if the circuit court considered the relevant facts, applied a proper legal standard, and reached a reasonable conclusion.SeeState v. Edmunds , 2008 WI App 33, ¶8, 308 Wis. 2d 374, 746 N.W.2d 590.We will not disturb a circuit court's factual findings unless they are clearly erroneous.SeeDickman v. Vollmer , 2007 WI App 141, ¶14, 303 Wis. 2d 241, 736 N.W.2d 202."We do not reweigh the evidence or reassess the witnesses’ credibility."Id.

¶5 Hying first contends that Attorney Arieff was not entitled to the fees he incurred in responding to a motion that Hying filed in June 2018, in which Hying alleged that Attorney Arieff was in contempt of court.³Hying begins by summarizing a 2014circuit court order that requires him to pay a $1,500 deposit with any motion he files, and he notes that the money is "to apply to any GAL fees or attorney's fees in connection with the motion."Hying then emphasizes that he made the required deposit when he filed the June 2018 contempt motion and that the circuit court signed an order in July 2018 directing the return of the deposit to him.According to Hying, the order returning the deposit constituted an "implicit and understood remedial sanction" against the guardian ad litem and a determination that the guardian ad litem was not entitled to any fees in connection with the contempt motion.

¶6The circuit court considered and rejected Hying's arguments.It described Hying's position as "a contorted approach" that "simply makes no sense."The circuit court went on to explain that it returned the deposit to Hying as a matter of equity because $1,500 is "a lot of money to have sitting around."Hying now renews his arguments in this court, but we too conclude that they are meritless.

¶7 First, the rule is well settled that we normally defer to a circuit court's interpretation of its own orders.SeeThorp v. Town of Lebanon , 225 Wis. 2d 672, 683, 593 N.W.2d 878(Ct. App.1999), aff'd , 2000 WI 60, 235 Wis. 2d 610, 612 N.W.2d 59.Hying fails to cite any legal authority demonstrating that we should not apply that rule here.

¶8 Second, Hying fails to cite any legal authority supporting his theory that the return of the deposit constituted either a sanction or an order that the guardian ad litem was not entitled to fees.Indeed, the sole citation in this portion of Hying's submission is a footnote directing our attention generally to Evans v. Luebke , 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304.Hying, however, does not point us to a page or paragraph in that case to explain the purpose of his footnote, nor he does offer a quotation or an explanation showing how Evans supports his contentions.Our review of Evans satisfies us that it does not in any way bolster Hying's claims that, by returning his deposit, the circuit court sanctioned the guardian ad litem or prospectively rejected the guardian ad litem ’s request for fees.As an experienced pro se litigator, Hying knows or should know that in the absence of adequate briefing and supporting authority, his claims lack merit.SeeState v. Flynn , 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343(Ct. App.1994).

¶9 Hying next argues that the guardian ad litem is not entitled to certain fees because they arise from Hying's allegations that the guardian ad litem had neglected his duties.Hying states: "fees related to a motion for failure to perform court ordered duties are not ‘necessary work’ and repeatedly filing them with Hying and the court is a fraudulent act [sic]."The circuit court determined as a factual matter, however, that all of the guardian ad litem ’s fees were incurred "for services provided under [o]rder of the [c]ourt" and further found "that there is not, and has not been since being appointed, anything ‘fraudulent’ in regard to Attorney Arieff's GAL billings."Hying disagrees with those findings, but he fails to offer a citation to any legal authority supporting his theses that the billings constituted a fraud or that the guardian ad litem ’s work was unnecessary.Accordingly, the arguments lack merit.Seeid.

¶10 Hying next argues that a portion of a 2016 payment he made to Niemi's counsel should have been but was not "forwarded [to Attorney Arieff] and thus the claim of nonpayment resides with [Niemi's counsel] and not Hying."The circuit court disagreed.It found that the credible evidence did not establish any failure by Niemi's counsel to distribute guardian ad litem payments appropriately.The only authority that Hying offers to support his contrary position is contained within his conclusory assertion that "[g]arnishment (Wis Stat. 812) and wage assignment (Wis. Stat. 788.30) statues [sic] exist to avoid this redundant litigation and protect the debtor, Hying."This court, however, has told Hying on multiple occasions that efforts to enforce his financial obligations in this case are properly addressed as family law matters.SeeHying X , No. 2017AP313at 9(quotingHying v. Hying( Hying VIII-IX ), Nos. 2016AP137and2016AP1446, unpublished op. and order (WI App Aug. 16, 2017)).In light of our discussion in Hying VIII-IX and Hying X , Hying knew or should have known that our determination in those cases constitutes the law of this case and therefore governs here.SeeLaatsch v. Derzon , 2018 WI App 10, ¶40, 380 Wis. 2d 108, 908 N.W.2d 471.Hying does not present any argument or authority from which we might reach a contrary conclusion.Accordingly, his argument is meritless.

¶11 Hying next argues that Attorney Arieff and the circuit court"relied on unsubstantiated evidence" to support the claim for guardian ad litem fees.Specifically, Hying complains about the hearing's exhibit six, a bill dated January 14, 2011.The bill reflects that it was prepared by the predecessor guardian ad litem , Attorney Martin Gagne, and by its terms the bill seeks $13,010.25 from Hying for fees incurred through January 13, 2011.Attorney Arieff explained that he offered exhibit six to show that Hying had not paid Attorney Gagne the amounts owed to him and to "undermine[ ] some of [Hying's] arguments about Hying's specific aversion to [Attorney Arieff]....[T]here's an aversion to any guardian ad litem that does not recommend in a way that [Hying] does not feel is favorable to him."Hying objected to admission of exhibit six, alleging that the 2011bill was not previously filed in this case.The circuit court overruled the objection.Hying seeks relief on the ground that the circuit court erred in admitting the exhibit.

¶12 Hying's argument is meritless.As an experienced pro se litigator, Hying knows or should know that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected."SeeWIS. STAT. § 901.03(1).Hying also knows or should know that the admission of exhibit six as evidence did not adversely affect his substantial rights because the exhibit merely duplicated facts established elsewhere in the record.Specifically, the record shows that the circuit court entered an order on March 30, 2011, finding that Hying, by his own admission, had not made a payment to Attorney Gagne since September 20, 2008, and further finding that "in his proposed findings of fact and order in this matter, Attorney Gagne submitted an updated b...