Family Law Still Needs to Follow Rules

By Attorney Gregg Herman
May 3, 2010

Every once in a while, it seems, the Wisconsin Court of Appeals needs to remind trial courts that family-law cases are really lawsuits.

While they differ from other areas of law in certain ways, namely the familiarity of the parties with each other, they are still proceedings and as a result, certain rules apply โ€” such as court orders being premised on admissible evidence. That is quite impossible if the court does not allow anyone to testify or present evidence.

Recently, the appellate court once again reminded trial courts of this simple rule. In Stumper v. Cutting, No. 2009AP94 (Wis. Ct. App. April 8, 2010) (recommended for publication), the court reversed the trial court for modifying placement sua sponte.

Charles had filed a contempt motion against Claudia for allegedly failing to timely return their child to him as required. At the conclusion of the hearing, Clark County Circuit Court Judge Jon M. Counsell denied Charles’ motion for contempt.

However, the court then issued, sua sponte, an order modifying the placement order.

Claudia appealed.

The Dist. IV Court of Appeals, in an opinion written by Judge Paul Higginbotham, held that the trial court’s action exceeded the authority granted to it by Wis. Stats. ยง 767.451(3) because the language of that statute does not permit a court to modify a placement order in the absence of a “petition, motion or order to show cause by a party.”

Previous Reminders

It seems that every few years, the Court of Appeals needs to remind trial courts that rules of evidence and procedure apply in family law cases.

For example, in In re Paternity of Stephanie R.N., 174 Wis.2d 745, 498 N.W.2d 235(1993), a trial court made a custody modification order based on the recommendation of the guardian ad litem during oral arguments, dispensing with the admittedly time consuming hassle of actually having to listen to the evidence. The Wisconsin Supreme Court, of course, reversed.

Twelve years later, the Court of Appeals had to repeat this requirement to trial courts in Goberville v. Goberville, 2005 WI App 58, 280 Wis. 2d 405, 694 N.W.2d 503, another case where the trial court short-cut evidentiary requirements by simply adopting the GAL’s recommendation.

Another example involves de novo motions brought before circuit courts from hearings before the family court commissioner. In 1988, in Long v. Wasielewski, 147 Wis. 2d 57, 432 N.W. 2d 615 (Ct. App. 1988), the Court of Appeals reversed a trial court for deciding a de novo motion without paying attention to the “novo” part of it.

And last year, the appellate court had to issue a reminder to trial courts in Stuligross v. Stuligross, 2009 WI App 25, 316 Wis. 2d 344, 765 N.W.2d 241, which consisted of essentially the same holding as Long, although the appellate court attempted to differentiate the cases in a footnote. The differences are not significant; it’s the same holding, 21 years apart: “New means new.”

Family Law is Different

While at first blush the holding in Stumper seems obvious and the decision does not need to be published, it is part of an unfortunate tradition where trial courts apparently need to be occasionally reminded that family law cases are indeed, well, they are lawsuits . Why is this so?

Partly, it is due to the very nature of family law cases. The parties, unlike any other area of law, are intimately familiar with each other. Therefore, technical rules sometimes seem unnecessary. Moreover, it’s often said that litigated custody disputes are bad for the children, which is true. With the extensive use of mediation and the expansion of alternative dispute resolution to include collaborative and cooperative processes โ€” a trend I generally applaud โ€” it seems that some lawyers and judges tend to believe that traditional, litigated family-law cases have disappeared all together. They have not. (Which is a good thing for me because if there’s no family-law caselaw developed, I’ll have nothing to write about.)

Further, the issues tend to be those which do not always lend themselves to the technicalities of the rules of evidence. A placement schedule for children, for example, is something best developed by an informal discussion between the parties with the assistance of a representative of the children, rather than by application of the rules of evidence. In fact, some states, like Arizona, have gone so far as to allow the parties to opt-out of the rules of evidence entirely in order to make the cases proceed more efficiently.

Unfortunately, we do not have such an opt-out option in Wisconsin. Until we do, trial courts will have to follow the rules, efficient or not, or appellate courts will have to issue more warnings to trial courts.

This article originally appeared in the Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.