Puchner v. Kruzicki

• Decision Date: 21 February 1996
• Docket Number: No. 96-C-153.,96-C-153.
• Citation: 918 F. Supp. 1271
• Parties: Dr. John PUCHNER, Petitioner, v. William KRUZICKI, Waukesha County Sheriff, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

918 F. Supp. 1271

Dr. John PUCHNER, Petitioner, v. William KRUZICKI, Waukesha County Sheriff, Respondent.

No. 96-C-153.

United States District Court, E.D. Wisconsin.

February 21, 1996.

COPYRIGHT MATERIAL OMITTED

Thomas E. Hayes, Milwaukee, WI, for Petitioner.

Stephen Schmitz, Waukesha County Corporation Counsel, Waukesha, WI, for Respondent.

DECISION AND ORDER

WARREN, District Judge.

Before the Court is Dr. John Puchner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the above-captioned matter. On February 5, 1996, the petitioner was incarcerated and began serving a 60-day sentence for contempt in the Waukesha County Huber Facility. On February 13, 1996, this Court ordered a STAY of state court proceedings pursuant to 28 U.S.C. § 2251 and held an expedited hearing on February 15, 1996 at 11:00 a.m. For the following reasons, Dr. Puchner's Petition is GRANTED. Dr. Puchner is to be afforded a hearing before a circuit court judge in order to demonstrate that his inability to meet the purge conditions is not willful and intentional.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 9, 1996, the petitioner Dr. John Puchner filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) challenging his incarceration for civil contempt for allegedly willfully failing to pay court ordered child support. On February 12, 1996, a Brief in Support of Petition for Writ of Habeas Corpus was submitted by petitioner. On February 13, 1996, after a preliminary review of the Petition and Brief, this Court ordered a stay of state court proceedings, ordered the respondent to show cause why the Writ should not be granted and ordered the petitioner to be released forthwith pending resolution of the Writ. On February 15, 1996, a hearing was held before this Court, in attendance were Dr. John Puchner represented by his attorney Thomas E. Hayes, Steven Schmitz attorney for Waukesha County Corporation Counsel representing Waukesha County Sheriff William Kruzicki, and Bruce O'Neill attorney for petitioner's former wife, Anne Hepperia. The Department of Justice for the state of Wisconsin reviewed the pleadings and decided that the Department did not have a role in this matter.

The underlying circumstances in this cause of action involve a divorce and ensuing custody battle marked by intense animosity and bitter feelings. By way of brief background, the petitioner and his wife, now known as Anne C. Hepperla, were divorced in Minnesota in Hennepin County, on October 27, 1992, following a three-year marriage. (Exh. 1.) The marriage produced one child, Paul Andrew Puchner, born April 4, 1992. The Minnesota judgment awarded legal custody of Paul to both parties with his physical custody being awarded to Ms. Hepperla and ordered Dr. Puchner to pay $480.00 per month for child support. (Exh. 1.) The venue of the case was transferred to Waukesha County in 1993. On December 8, 1993, Ms. Hepperla filed a Motion requesting that Dr. Puchner be held in contempt for his refusal to sign appropriate health insurance forms, pay child support and provide Ms. Hepperla's attorney with a copy of his work schedule. (Exh. 2.) On December 22, 1993, the Honorable Willis Zick, Waukesha County Circuit Court Judge, requested petitioner's appearance at a hearing scheduled for February 11, 1994. (Exh. 3.) On January 31, 1994, the petitioner submitted a notice of countermotion to Judge Zick requesting, inter alia, that he appear via telephone. (Exh. 4.) The February 11, 1994 hearing before Judge Zick and what transpired is currently being considered by this Court.

At the February 11, 1994 hearing before Judge Zick, Anne Hepperla and her attorney Bruce O'Neill were present in person; the petitioner appeared pro se via telephone from Michigan. The transcript of the hearing before Judge Zick indicates that the hearing was scheduled to address the motion dated December 6, 1993 filed by Ms. Hepperla. Ms. Hepperla first requested that Dr. Puchner pay $1,500.00 to Dr. Matusiak a court appointed psychologist; second, that Dr. Puchner pay Ms. Hepperla $1,095.00 for Dr. Matusiak's bill already paid by Ms. Hepperla; and third that Dr. Puchner pay $150.00 which was ½ the placement study fee for the Waukesha County Family Court Counseling Services. (Exh. 5, Transcript of February 11, 1994 Hearing "Trans." at 2-3.) Next, Ms. Hepperla asked that Dr. Puchner be held in contempt for his refusal to sign health insurance forms (Trans. at 3-4) and for refusal to pay child support. (Trans. at 7.) Mr. O'Neill, Ms. Hepperla's attorney, argued that Dr. Puchner was in child support arrearage totaling $2,920.00 through the first half of February, 1994 and requested purge conditions of an extra $200.00 per month. The petitioner responded, inter alia, that he had been paying child support to the state of Minnesota, arguing that he was under obligation to pay the state of Minnesota, and that the checks were being returned to him. Dr. Puchner requested "discovery" in order to present checks and receipts. (Trans. at 13-14.) After a rather convoluted discussion, Judge Zick found Dr. Puchner in contempt for not paying the $150.00 toward the $300.00 study fee and for failure to pay child support totaling "$2,920.00 under the $480.00 per month order." (Trans. at 19-22.) The exact transcript reads at page 22:

THE COURT: So the Court will find he owes $2920 under the $480 per month order then, based on Mr. O'Neill's statement, which the Court find much more credible than Dr. Puchner's semi-comprehensible statements.

So then we will find him in contempt for not paying that and sentence him to 60 days in the county jail for that contempt. We'll find he has the ability to pay that with his $32,000 salary. So, the Court will find it's an intentional failure — refusal to pay. And then, Mr. O'Neill, do you want him to purge that by paying the $100 a month, is that what — ....

(Trans. continued at 23)

THE COURT: Okay. So, we will order then that he doesn't have to serve the sentence, as long as he pays the payments, $480 from now on, plus a hundred a month.

MR. O'NEILL: It's 200 a month, a hundred per paycheck.

THE COURT: A hundred per check from now on. So he will have to pay $340.00 from each of his checks received subsequent to today then. If he does that, he will be purging that contempt finding and will not have to go to jail. And then if he does not do that, Mr. O'Neill will send us a letter with an order to execute the arrest warrant. And then the next time he is in Wisconsin, the sheriff's department will pick him up and he can serve his 60 day jail sentence.

(Trans. continued at 25)

THE COURT: Okay. So, half of that he owes her, what would get added on, would be the twenty-nine twenty on child support, the hundred fifty on the study, half of whatever — half of the total of Dr. Matusiak, and then whatever is short on Prudential. Those would be the items added on to the purge figure then. Fees, we'll worry about that when we come back here for our trial.

(Trans. continued at 27)

MR. PUCHNER: I'd ask if you read the affidavit, my counter motion?

THE COURT: I don't read affidavits at all. If you told me everything —

MR. PUCHNER: You do not read —

THE COURT: I do not read people's affidavits and things until I get —

MR. PUCHNER: — supporting documents.

On February 21, 1994 Judge Zick ordered that Dr. Puchner be found in contempt for (1) his intentional refusal to pay $150.00 in reimbursement for one-half of the cost of the placement study executed by the Waukesha County Family Court and (2) intentional refusal to pay child support, an arrearage totaling $2,920.00. (Exh. 6.) The February 21, 1994 Order sentenced Dr. Puchner to 60 days in the Waukesha County Jail and imposed purge conditions of $680.00 per month. (Exh. 6.) On March 4, 1994, the petitioner filed a pro se motion asking for an opportunity to explain his inability to pay the court ordered payments. (Exh. 7.) The petitioner maintains that this Motion was never heard and that he has never been given an opportunity to explain his inability to purge himself of the contempt conditions. Judge Zick retired from the Waukesha County Circuit Court bench and approximately nine months later the Honorable Donald Hassin was appointed to replace Judge Zick on approximately November 14, 1994. (Exh. 13.) On September 2, 1994, the petitioner was incarcerated as he arrived in Wisconsin to visit with his son. While in jail for the civil contempt charges, the petitioner filed with the circuit court a request to review his financial inability to pay the purge conditions. Again, this matter was never scheduled for a hearing. Because an appeal was pending before the Wisconsin Court of Appeals regarding the contempt order, the petitioner, having obtained counsel, was released from custody and allowed to return to Michigan.

On November 8, 1995, the Wisconsin Court of Appeals sustained the trial court's order adjudging the petitioner in contempt concluding that the contempt order was valid. (Exh. 9: Puchner v. Puchner, 542 N.W.2d 237, 1995 WL 654054 (Wis.App.1995).) On January 17, 1996, the Wisconsin Supreme Court declined to review petitioner's appeal. On January 19, 1996, and on February 5, 1996, the petitioner filed motions with the trial court requesting a hearing concerning his inability to pay the purge conditions ordered by Judge Zick. (Exhs. 10, 12.) On January 19, 1996, Judge Donald Hassin denied Dr. Puchner's request for a hearing. (Exh. 11.) On February 5, 1996, petitioner was incarcerated and began serving a 60-day sentence for contempt in the Waukesha County Huber Facility (the Court notes that petitioner had previously served three days during September, 1994 toward his 60 day sentence) for failing to pay ½ cost of a placement study and for failing to pay $2,920.00 in child support.

In his Petition for Writ of Habeas Corpus, the petitioner argues that at the February 11, 1994...