Court Upholds Contempt for Failure to Provide Info
September 3, 2007
May a circuit court use its remedial contempt powers to craft a remedy, where a party fails to provide tax returns and income information in a timely manner as required under statute, a divorce judgement, and a court order, but then the party produces the information just before the contempt hearing?
On July 17, 2007, the Supreme Court of Wisconsin answered this question in the affirmative in Frisch v. Henrichs, 2007 WI 102. The justices reversed the published decision of the District II Court of Appeals concerning the remedial contempt powers of the circuit courts.
This is the first of two articles which will first discuss the holding, then the implications on family law cases.
The case involved whether a circuit court may use its remedial contempt power to craft a remedy where a party failed to provide tax returns and income information in a timely manner as required under statute, a divorce judgment, and a court order, but then does produce the information just before the contempt hearing.
The Waukesha County Court, Judge Ralph Ramirez, found Ronald J. Henrichs in contempt for failing to produce tax information on an annual basis to his former wife, Heidi Frisch, and for failing to timely report substantial changes in his income. In addition to the statutory requirement of annually providing financial information to a support recipient, Ronald was in violation of a November 1995 court order and a stipulation entered into between parties.
Ramirez also held that the stipulation between the parties, which set a ceiling on the amount of Ronald’s child support obligations for four years, was not in the best interests of the parties’ children and was contrary to public policy. The court ordered Ronald to pay Heidi $100,000 as compensation for Ronald’s contemptuous conduct and $32,000 of Heidi’s attorney fees on grounds that he had engaged in overtrial.
The Court of Appeals reversed, holding that the circuit court improperly employed remedial contempt because Ronald’s contempt was no longer continuing at the time of the contempt hearing. The appellate court held that Ronald had provided Heidi with all the tax information before the contempt hearing; therefore, the contempt was no longer continuing and the circuit court was not authorized under Wis. Stat. ch. 785 to employ remedial contempt.
The Court of Appeals additionally held that the stipulation between Ronald and Heidi was not contrary to public policy. The court reversed the circuit court’s order that Ronald pay $100,000 to Heidi and also reversed the $32,000 overtrial award.
High Court Probes ‘Continuing Contempt’
The Supreme Court reversed the Court of Appeals, holding that the circuit court properly employed remedial contempt in this case.
The majority opinion, written by Justice David T. Prosser Jr., held that Ronald’s contempt was continuing at the time of the contempt hearing because, although he had provided Heidi with complete tax and income information at the time of the hearing, his failure to produce the information in a timely manner, as required, permitted him to evade exposure to the possibility of a modification of his child support obligation and thereby deprived Heidi and their children of their traditional remedies under statutory law. The court further held that the timely provision of information was an essential element of the court’s order. Since Ronald could not and did not turn back time when he did not produce the required information timely, his contempt was and is continuing within the legislative directive of Wis. Stat. § 767.27(2m).
The high court also concluded that the stipulation between the parties setting a ceiling on child support was unenforceable, even though it was for a limited period of time, because it was not in the best interests of the children and therefore contrary to public policy.
Justice Louis Butler Jr., joined by Justice Ann Walsh Bradley, concurred, opining that the majority opinion “does violence to the law of remedial contempt” by holding that failure to meet a deadline constitutes a “continuing contempt” of court. Because Ronald engaged in on-going efforts to conceal his income and financial interests, The concurrence opined that the circuit court should be affirmed for holding Ronald in contempt by a straightforward application of Wis. Stat. §785.01(3), which includes in the definition of contempt the “[r]efusal to produce a record, document or other object.”
Butler wrote that by redefining “continuing,” the “law of unintended consequences” is likely to impact future contempt cases.
Finally, in an extremely brief dissent Chief Justice Shirley S. Abrahamson wrote that she would retain jurisdiction and remand the case to circuit court to advise the high court as to whether Ronald provided all the required information, and that further briefing about the circuit court’s ability to enter its order was necessary.
The Bottom Line
The case stands for the following:
1. Orders to provide financial information after a divorce are continuing orders and complying late does not alleviate a contempt.
2. Orders capping child support, even if entered into knowingly and voluntarily, are contrary to public policy and unenforceable.
We will examine the possible implications of this decision on the practice of family law in this column next week. For those of you who enjoy cliffhangers, let’s just say this: They are troubling.
This article originally appeared in Wisconsin Law Journal.