Schroff v. Schroff

• Decision Date: 31 October 1978
• Docket Number: No. 77-288,77-288
• Parties: William K. SCHROFF, Plaintiff-Respondent, v. Karen Zeanah SCHROFF, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 379

271 N.W.2d 379

85 Wis.2d 505

William K. SCHROFF, Plaintiff-Respondent, v. Karen Zeanah SCHROFF, Defendant-Appellant.

No. 77-288.

Supreme Court of Wisconsin.

Argued Oct. 3, 1978.

Decided Oct. 31, 1978.

John J. Ottusch (argued), Milwaukee, for defendant-appellant; Cook & Franke, S.C., Milwaukee, on the briefs.

Clifford K. Meldman (argued), Milwaukee, for plaintiff-respondent; Meldman & Meldman, S.C., Milwaukee, on the brief.

DAY, Justice.

This is an appeal from a judgment entered September 19, 1977 which reduced family support payments established by a previous Florida divorce judgment. We hold that the Wisconsin court lacked jurisdiction in the matter and accordingly vacate the judgment.

The defendant-appellant, Karen Zeanah Schroff, and the plaintiff, William K. Schroff, were married on June 4, 1968 in Florida. After their marriage, they lived together first in Florida and then in New Jersey where their two children were born. While living in New Jersey the couple separated. On August 27, 1975, they signed a marriage settlement agreement in New Jersey following which Karen Schroff moved to Florida with the children where she continued to live and was living at the time the judgment in this case was entered. The parties have never lived together in the State of Wisconsin. The only time she had been to Wisconsin was to bring the children to visit Mr. Schroff for approximately a week in March of 1976.

This action began when William Schroff filed a summons and complaint for legal separation in the circuit court of Milwaukee county in July, 1976. Karen Schroff was personally served on July 26, 1976 in that action while she was in Florida. Earlier, on July 2, 1976, Karen Schroff brought an action for Dissolution of Marriage against her husband in the circuit court of Hillsborough county, Florida. He was served personally on July 31, 1976 while he was in Florida.

On August 11, 1976, he moved the court in Milwaukee to set his action for legal separation for immediate trial. On August 13, 1976, Karen Schroff moved the circuit court of Milwaukee county to dismiss the action for the reason that the court lacked jurisdiction over her person. In the alternative, she moved the court pursuant to sec. 801.63, Stats. (1975) to stay the action to permit the Florida Dissolution of Marriage action to proceed. On August 31, 1976, both motions were denied. She then filed an answer, objection to jurisdiction and motion for abatement on September 3, 1976. On October 15, 1976, William Schroff made a motion returnable October 27, 1976 asking that his action be set for an immediate trial. Karen Schroff's lawyer objected, again raising the jurisdictional question in arguing that there never had been a hearing or decision on her motion for abatement. The judge refused to grant a hearing on the motion for abatement and set the matter for trial on November 1, 1976.

On October 28, 1976, Karen Schroff applied to this court for a writ of prohibition. This court issued an order to show cause, halting further proceedings in the trial court pending a decision on the application. While that application was pending, the dissolution of marriage action went to completion in Florida and on November 12, 1976, the Florida court granted a judgment of Dissolution of Marriage which incorporated the earlier agreement between the parties entered into in New Jersey as modified by a stipulation dated November 3, 1976. William Schroff signed the stipulation in Milwaukee while Karen Schroff signed the stipulation in Florida. The Florida judgment divided the property of the parties, awarded custody of the children to Karen Schroff and ordered him to pay her $1,000 per month for family support.

After learning of the Florida judgment terminating the marriage, this court dismissed Karen Schroff's application for a writ of prohibition on December 17, 1976. In January, 1977, William Schroff filed a second amended complaint asking that the Florida Dissolution of Marriage judgment be made a Wisconsin judgment pursuant to sec. 806.24, Stats. (1975), (formerly sec. 270.96). The Florida judgment was filed in the office of the clerk of circuit courts in Milwaukee county in February, 1977.

On August 1, 1977, the Milwaukee circuit court issued an order to show cause returnable on September 7, 1977 directing Karen Schroff to show cause why the family support payments of $1,000 per month should not be reduced to $400 per month and paid to the clerk of the circuit court for Milwaukee county. The order to show cause was served on Karen Schroff in Florida and also on her Milwaukee attorney. Karen Schroff did not appear at the September hearing. Her lawyer argued that the court could not modify the family support payment without personal jurisdiction over her and further argued that sec. 801.08(1), Stats. (1975) required the court to hold a hearing on the jurisdictional objection before proceeding to the merits of the case. The court, however, proceeded in the matter and after hearing William Schroff's testimony with respect to changed circumstances, the court reduced the family support payments from $1,000 to $400 per month Nunc pro tunc to July 31, 1977 and set a further hearing for January, 1978 to give Karen Schroff an opportunity to come to Wisconsin to present evidence. The judgment lowering the support payments was entered September 19, 1977 and this appeal followed.

The issues are as follows:

1. Was there a final judgment from which an appeal might be taken?

We hold that there was.

2. Did Karen Schroff consent to the jurisdiction of the Wisconsin trial court when she signed the stipulation for alimony, property division, child support, custody and visitation rights which was incorporated into the Florida Dissolution of Marriage judgment?

We hold that she did not.

3. Should this court remand the cause to the trial court for a jurisdictional hearing or order that the action be dismissed for lack of personal jurisdiction over Karen Schroff?

We hold that the judgment should be reversed and the cause be remanded with instructions to vacate the judgment and dismiss the complaint.

I. WAS THERE A FINAL JUDGMENT FROM WHICH AN APPEAL MIGHT BE TAKEN?

William Schroff argues that this court has no jurisdiction to entertain this appeal claiming there was no final judgment entered in the trial court in this matter. He would characterize the trial court's modification of family support payments as a non-appealable intermediate order, rather than a final judgment because the trial court gave Mrs. Schroff an opportunity to make a later appearance and put additional evidence into the record.

Sec. 247.25, Stats. (1975) ¹ provides that a court may modify child support payments upon a showing of changed circumstances, and "make a new judgment concerning the same as the circumstances of the parents and the benefit of the children shall require." The trial court made such a judgment which was entered September 19, 1977 to take effect immediately. It further provided, "this payment schedule shall become final and fixed unless the wife presents herself to the court, before the Honorable John F. Foley . . . on January 30, 1978, at 2 o'clock p. m."

When a judgment or appealable order is entered in the trial court, subject matter jurisdiction is vested in the appellate court from that time, whether or not the appeal is taken from the appealable matter. Walford v. Bartsch, 65 Wis.2d 254, 262, 222 N.W.2d 633 (1974); sec. 817.11(4), Stats. (1975). ²

The judgment reducing support payments was in fact a judgment and was so designated. It was filed September 19, 1977 and took effect immediately. This

court has jurisdiction to entertain the appeal. II. DID

KAREN SCHROFF CONSENT TO THE JURISDICTION OF THE WISCONSIN

TRIAL COURT WHEN SHE SIGNED THE STIPULATION FOR ALIMONY,

PROPERTY DIVISION, CHILD SUPPORT, CUSTODY AND VISITATION

RIGHTS WHICH WAS INCORPORATED INTO THE FLORIDA DISSOLUTION

OF MARRIAGE JUDGMENT?

Karen Schroff maintains that she was entitled to either a hearing under sec. 801.08, Stats. (1975) ³ to hear her jurisdictional objection or in the alternative that this court should vacate the judgment and dismiss the action for want of personal jurisdiction. William Schroff, on the other hand, argues that Karen Schroff submitted herself to the jurisdiction of the Wisconsin trial court when she signed the stipulation in Florida, and thus no jurisdictional hearing was necessary. William Schroff's argument is based on the fact that at the head of the stipulation were the captions of both the Florida case and the Wisconsin case which had been stayed by order of this court. The caption of the stipulation read:

The Florida judgment provided, in part, as follows: . . .

"(4) The husband shall pay to the wife as and for her alimony and for support of the children, . . . the following payments:

"a) $1,000.00 monthly beginning 1/1/77 . . ."

In Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948), the wife had been ordered alimony under a New York separation decree. The husband subsequently obtained an Ex parte Nevada divorce, and contended that his obligation to make support payments ended with the termination of the marriage relationship. The United States Supreme Court held that while the Nevada court had jurisdiction to dissolve the marriage, it could not extinguish the wife's right to alimony without personal jurisdiction over her.

"The New York judgment is a property interest of respondent, created by New York in a proceeding in which both parties were present. It imposed obligations on petitioner and granted rights to respondent. The property interest which it created was an intangible, jurisdiction over which cannot be exerted through control over a physical thing. Jurisdiction over an intangible can indeed only arise from control or power over the persons whose relationships are the source of the rights and obligations.

"Jurisdiction over a debtor is...