Schroeder v. Schroeder
| Decision Date | 03 March 1981 |
| Docket Number | No. 79-1018,79-1018 |
| Citation | 100 Wis.2d 625,302 N.W.2d 475 |
| Parties | Carol SCHROEDER, Plaintiff-Respondent, v. Charles SCHROEDER, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Robert J. LaBelle, Oconomowoc, for plaintiff-respondent.
This case first entered the Wisconsin court system in 1974 in an action for divorce. On November 22, 1974, the parties were granted a divorce decree in Waukesha County with the entry of a judgment incorporating the provisions of the parties' stipulation. The equity in the home of the parties was divided and the judgment provided that the defendant-appellant (Charles) pay the plaintiff-respondent (Carol) the sum of $9,000 by way of division of the estate. The judgment also provided for the payment of support for the minor children. It further provided that Carol was to convey her interest in the jointly owned real estate to Charles upon receipt of payment in full of the $9,000.
Carol was granted custody of the three minor children of the marriage, one of whom is now an adult. Charles was ordered to pay support for the children in the amount of $40 per week commencing December 2, 1974. He did not pay the ordered support money, and on March 15, 1978, the court ordered it reduced to $15 per week starting March 20, 1978, upon Charles' claim that he was unemployed. That order was to be reviewed in six months, but this was not done.
Charles, pursuant to the court judgment, did pay $5,000 of the $9,000 figure within 60 days of the original order. He has not paid the remaining $4,000 which was to be paid at the rate of $1,000 on January 2 of each year, commencing on the 2nd day of January, 1976, until paid in full.
Since the divorce judgment was entered in 1974, there have been 17 or 18 motions filed by Carol, nearly all due to defendant's violations of court orders.
As a result of one of the numerous hearings, the Honorable Robert T. McGraw on September 22, 1978, signed an order finding the defendant in contempt by virtue of his failure to pay the $1,000 payments due on January 2, 1976, 1977 and 1978. The sanction imposed was to direct those sums be placed as a lien upon the interest of the defendant in the jointly owned property. Also, the arrearage for support at that time in the amount of $6,960 was placed as a lien against the defendant's interest in the property.
The next finding of defendant's contempt was June 13, 1979, as a result of an order signed by Reserve Judge Francis H. Wendt based on his decision on May 8, 1979. Judge Wendt had conducted a two-day hearing on January 31 and February 1, 1979, which resulted in his decision.
Judge Wendt's order found the defendant in contempt of court since December 2, 1974, when the first support payment was due. Arrearage according to this order was found to be $7,115 as of April 16, 1979.
Judge Wendt also found the defendant in contempt of court for not abiding by the judgment of divorce as to division of the estate.
Reference in the order was made to Judge McGraw's hearing and findings of June 19, 1978, finding the defendant in contempt.
In his decision, Judge Wendt found the defendant had sufficient financial ability to pay all moneys due on the division of the estate. He made no finding of the defendant's financial ability to pay the support order nor to pay the medical and dental bills. Judges do not have the luxury of stating conclusions without stating the findings allowed by the proof on which they are based.
Upon the finding of contempt, Judge Wendt did not impose any remedial sanction except in his decision he stated, "Plaintiff's attorney may apply for a capias at any time upon notice." This phrase with whatever value it had was not included in the judge's order.
The next application of the courts to this continuing saga was on July 3, 1979, when Judge McGraw signed an order resulting from an order to show cause hearing on June 25, 1979, which was adjourned to July 2, 1979. The order recited the plaintiff and her attorney and defendant and his attorney were present at the hearing. No record was made of that hearing, or at least the appellate file does not contain any record of the proceedings. Judge McGraw found the defendant in contempt of court and sentenced him forthwith to serve 60 days in the Waukesha County jail. He was forthwith remanded to the custody of the sheriff of Waukesha County. In this same order the defendant was given an opportunity, through his attorney, to submit to the court within ten days "a proposal by which the defendant may purge himself of contempt." (Judge McGraw's July 3, 1979, order, Exhibit JJ of the trial court record.)
In the court of appeals, the defendant contended the order of Judge McGraw should be reversed for the following reasons: (1) the contempt proceedings actually constituted criminal contempt, and (2) the The court of appeals affirmed the trial court after a discussion of criminal versus civil contempt and found this contempt finding was civil and the jail sentence was within the authority of Judge McGraw to impose.
contempt proceedings do not lie to enforce the provisions of a divorce judgment debt. 1
Enforcement of divorce judgments by contempt proceedings is provided for in sec. 247.305, Stats. 1977. This statute became law as ch. 105, sec. 47 of the Laws of 1977. Sec. 62 of the same chapter provides:
The chapter was published on October 15, 1977. Sec. 247.305, Stats., became effective, therefore, on February 1, 1978. Even though the judgment of divorce in the present case was granted on November 22, 1974, the contempt proceedings which are the basis of this action were begun late in 1978 and led to a finding of contempt on May 8, 1979. The order for incarceration was based on this finding. Thus, the order at issue arises from an action for the enforcement of an order affecting marriage which was commenced after the effective date of sec. 247.305. Sec. 247.305, Stats. 1977, applies to this case.
Sec. 247.305, Stats. 1977, provided:
Contempt proceedings of ch. 295 are therefore appropriate for all failures to obey orders of the court as to:
There is a requirement in sec. 247.305, Stats. 1977, that the court consider in the contempt order to show cause whether the wage assignment proceeding under sec. 247.265 is inapplicable, impractical or unfeasible. There is no requirement in the statute that there be a separate wage assignment hearing under sec. 247.265 as a condition precedent to a contempt hearing under sec. 295.02. However, in signing the order to show cause for contempt, the judge should and must consider whether a separate and preliminary hearing pursuant to sec. 247.265 is applicable, practical or feasible and if the judge rules out the necessity to conduct that separate hearing, the order to show cause or resulting order should recite that determination.
To do otherwise would increase the number of appearances, the expenses to the litigants and unnecessary time of the courts. The legislature could not have meant there had to be a wage assignment hearing as to whether it should be exercised as a condition precedent to a contempt hearing since sec. 247.305, Stats. 1977, states that upon failure to satisfy an obligation as ordered by the court in a reasonable time and the wage assignment provisions of sec. 247.265 being inapplicable, impractical or unfeasible, then a hearing under sec. 295.02 may be ordered. However, the legislature The legislature in its wisdom has given another authority to the courts in addition to recognizing contempt powers by stating the additional method of wage assignment to assure the enforcement of court orders in actions affecting marriage.
has also defined statutorily that every court of record may find in contempt any person "who disobeys any process or lawful order of the court ... by which act the rights or remedies of a party in an action or proceeding pending or triable in such court or before the same county may be impaired, impeded, defeated or prejudiced." Sec. 295.01 defines the judges' authority to act in divorce proceedings in addition to sec. 247.305. Judges presiding in actions affecting marriage have no less power than judges presiding in other actions. It is clear that support payment, division of estate and [100 Wis.2d 632] maintenance orders issued by a court affect the rights and remedies of a party in an action and the judge is authorized and has the duty to assure those rights and remedies will not be impaired, impeded, defeated or prejudiced.
One of the arguments advanced by the defendant is that where a part of a divorce judgment is not paid, it may be reached by execution, and then contempt...
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