State ex rel. M.L.B. v. D.G.H.

Decision Date27 February 1985
Docket NumberNo. 83-1348,83-1348
Citation122 Wis.2d 536,363 N.W.2d 419
PartiesSTATE of Wisconsin ex rel. M.L.B., Plaintiff-Respondent, v. D.G.H., Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

Jerald P. Donohue, Fond du Lac (argued), for defendant-appellant-petitioner; Jerald P. Donohue and Donohue & Donohue, S.C., Fond du Lac, on briefs.

Joseph H. Pomeroy, Fond du Lac (argued), for plaintiff-respondent; Joseph H. Pomeroy and Colwin, Fortune, Colwin & Pomeroy, S.C., Fond du Lac, on briefs.


This is a review of an unpublished decision of the court of appeals filed on May 9, 1984, 120 Wis.2d 670, 353 N.W.2d 842, affirming an order of the circuit court for Fond du Lac county, Eugene F. McEssey, Circuit Judge, which in turn refused reconsideration of a prior order. This prior circuit court order denied D.G.H. relief from an out of wedlock agreement and from orders directing him to support a child born out of wedlock. The circuit court held that D.G.H. failed to assert his claim for relief within the one-year time limitation prescribed by sec. 806.07(2), Stats.1981-82, for causes of action falling within sec. 806.07(1)(a), (b), or (c) and that he was not entitled to relief under sec. 806.07(1)(g) or (h), to which the one-year limitation does not apply. The court of appeals affirmed the circuit court. We reverse the decision of the court of appeals and remand the cause to the circuit court.

This appeal arises from an out of wedlock agreement (hereinafter, agreement) which D.G.H. signed in open court in April, 1978. See sec. 52.28, Stats.1977. According to the terms of the agreement, D.G.H. and M.L.B., the female complainant, agreed that D.G.H. was the father of M.L.B.'s child born out of wedlock on February 16, 1977, and that D.G.H. would provide support and maintenance to the child as the court might thereafter determine. There is no judgment or order in this record determining the identity of the father. The agreement was approved by the district attorney's office and the circuit judge and filed with the clerk of court on April 3, 1978. The agreement specified that since D.G.H. was then unemployed, his responsibility for support and lying-in expenses would be temporarily deferred. In April, 1981, D.G.H. reported to the Fond du Lac Special Investigator's Office that he was currently employed, and on April 29, 1981, the circuit court for Fond du Lac county, acting pursuant to the admission of paternity in the agreement and the other terms of the agreement, ordered D.G.H. to pay the sum of $5,000 for lying-in expenses and past support payable at the rate of $50 per month. Other orders relating to support were entered, the last on March 22, 1982.

On June 1, 1982, D.G.H. began proceedings to set aside the agreement. The child, through his guardian ad litem, objected. The only issue the parties raised before the circuit court, the court of appeals, and this court is whether D.G.H. is entitled to relief from the agreement under sec. 806.07, Stats.1981-82, which prescribes circumstances under which the circuit court may relieve a party from a judgment, order or stipulation.

Sec. 806.07 provides as follows:

"806.07 Relief from judgment or order. (1) On motion and upon such terms as are just, the court may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:

"(a) Mistake, inadvertence, surprise, or excusable neglect;

"(b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15(3);

"(c) Fraud, misrepresentation, or other misconduct of an adverse party;

"(d) The judgment is void;

"(e) The judgment has been satisfied, released or discharged;

"(f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated;

"(g) It is no longer equitable that the judgment should have prospective application; or

"(h) Any other reasons justifying relief from the operation of the judgment.

"(2) The motion shall be made within a reasonable time, and, if based on sub. (1)(a) or (c), not more than one year after the judgment was entered or the order or stipulation was made. A motion based on sub. (1)(b) shall be made within the time provided in s. 805.16. A motion under this section does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from judgment, order, or proceeding, or to set aside a judgment for fraud on the court."

D.G.H. grounds his request for relief on the following assertions set forth in his petition and in his offer of proof: 1 (1) M.L.B. had, prior to the execution of the agreement, falsely stated in a questionnaire dated October 14, 1976, and filed with Fond du Lac County's Special Investigator's Office that she had had intercourse with no one but D.G.H. for about a year before the questionnaire was executed; 2 (2) M.L.B. now admits that she had intercourse with a male other than D.G.H. approximately 10 times between April 21, 1976 and June 20, 1976; (3) D.G.H. (born on September 8, 1959) was 16 years old and a sophomore in high school when the child was conceived, was 17 years old when the child was born, and was an 18 and one-half-year-old unemployed high school graduate when he signed the agreement; (3) D.G.H. was not represented by counsel when he signed the agreement; 3 (4) D.G.H. could not remember whether he had been told that he had a right to an attorney or a blood test; (5) no blood test was conducted before D.G.H. signed the agreement; (6) the blood tests conducted on May 18, 1982, positively excluded D.G.H. as the father of the child.

The circuit court denied D.G.H.'s petition, holding that the bases for D.G.H.'s claim for relief were fraud, mistake, or newly discovered evidence within sec. 806.07(1)(a), (b), and (c) and that D.G.H.'s petition was not timely since it was not brought within the prescribed one-year time period set forth in sec. 806.07(2). Four years had elapsed since the agreement and 13 months since the first order enforcing the agreement. The circuit court further held that D.G.H. is not entitled to relief under sec. 806.07(1)(g) or (h), which allow a motion for relief to be raised within a "reasonable time" (which may be longer than one year), reasoning that relief cannot be had under (g) or (h) when the bases for relief asserted fall under subsections (a) (b) or (c). In other words, the circuit court held, and the court of appeals agreed, that grounds for relief under subsections (g) and (h) must be based on reasons other than those specifically set out in subsections (a), (b), and (c). 4

A circuit court's order denying a motion for relief under sec. 806.07 will not be reversed on appeal unless there has been a clear abuse of discretion. Shuput v. Lauer, 109 Wis.2d 164, 177, 325 N.W.2d 321 (1982); Family Savings Loan Ass'n v. Barkwood Landscaping Co., Inc., 93 Wis.2d 190, 204, 286 N.W.2d 581 (1980); Hollingsworth v. American Finance Corporation, 86 Wis.2d 172, 184, 271 N.W.2d 872 (1978). An appellate court will not find an abuse of discretion if the record shows that the circuit court exercised its discretion and that there is a reasonable basis for the court's determination. Howard v. Duersten, 81 Wis.2d 301, 305, 260 N.W.2d 274 (1977). The term "discretion" contemplates a process of reasoning which depends on facts that are in the record or are reasonably derived by inference from the record and yields a conclusion based on logic and founded on proper legal standards. Shuput v. Lauer, 109 Wis.2d 164, 177-78, 325 N.W.2d 321 (1982).

The issue presented in this case is whether the circuit court rested its decision upon an error of law, namely an incorrect interpretation of sec. 806.07 and thereby abused its discretion. State v. Hutnik, 39 Wis.2d 754, 763, 159 N.W.2d 733 (1968). We therefore turn to an analysis of sec. 806.07.

Sec. 806.07 attempts to achieve a balance between the competing values of finality and fairness in the resolution of a dispute. See Graczyk, The New Wisconsin Rules of Civil Procedure, Chapters 805-807, 59 Marq.L.Rev. 671, 727 (1976). The court must construe section 806.07 to achieve this balance. For assistance in construction of sec. 806.07, we refer to Wisconsin cases interpreting this section and to federal cases interpreting Rule 60(b) of the Federal Rules of Civil Procedure upon which sec. 806.07 is based. 5

Subsections (a) through (f) of sec. 806.07 enumerate relatively specific grounds warranting relief from a judgment, some of which must be raised within a specified time period. D.G.H. asserts that he is entitled to relief under either subsection (g) or (h) of sec. 806.07(1) and that his petition was brought within a reasonable time. Sec. 806.07(2), Stats.1981-82.

Subsection (g) provides that a court may relieve a party from a judgment if "it is no longer equitable that the judgment should have prospective application." The parties have not directed this court to any Wisconsin cases construing 806.07(1)(g) 6 or to any federal cases construing its analogue Rule 60(b)(5). Commentators have concluded that Rule 60(b)(5) was intended to preserve for the courts the power to alter final judgments having an ongoing impact when the facts as determined in the original action have changed to a degree that the final judgment must also be changed to comport with the new conditions. The chief use of Rule 60(b)(5) apparently has been to obtain relief from a permanent injunction which has become unnecessary due to a change in conditions. Relief from the injunction does not challenge the propriety of the original judgment, but rather is a recognition that it would be inequitable for the original judgment to be enforced prospectively. 7 Moore's Federal Practice, par. 60.26 (9/83); 11 Wright and Miller, Federal Practice and Procedure: Civil, sec. 2863, pp. 204-211 (1973).

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