Frisch Was Poor Candidate for Publication

By Attorney Gregg Herman
May 31, 2006

On April 26, 2006, the Wisconsin Court of Appeals ordered the decision in Frisch v. Heinrichs, 2006 WI App 64 published, despite written pleas from the American Academy of Matrimonial Lawyers, the Wisconsin Department of Workforce Development and the Wisconsin Family Court Commissioners Association to the contrary.  Depending on how strictly the holding is read, the result may cause severe problems in allowing courts to order a person who disobeys a court order to make the innocent party whole.

The Court of Appeals decision reversed and remanded a post-judgment contempt judgment order with sanctions rendered by the Waukesha County Circuit Judge Ralph M. Ramirez, stemming from the husband’s failure to timely provide copies of his income tax returns to the wife.

The case had a tortured factual and procedural history — one good reason right there why it should not be published.  Cutting through a great deal of detail, the eventual holding was that a circuit court cannot use its remedial contempt powers to sanction a child support payor who fraudulently fails to timely provide copies of his tax returns, which, when produced, revealed greater income that previously represented.

Lost in the morass of the peculiar facts of the case is an important issue: What remedy is available when a support payor receives a substantial increase in income, but does not report it, contrary to Wis. Stats. §767.263?

In Frisch, the parties had reached an unusual stipulation to essentially freeze child support for a four-year period, thus mooting the effect of the reporting requirement.  This question, then, will have to wait for another day.

The contempt issue, however, cannot wait.  The danger the case poses was stated in the AAML letter, as follows:

“[P]art of the language suggests that no contempt sanction can ever be granted, or finding of contempt made, if a person who has been disobeying a court order cures the disobedience at any time before the hearing. If this is the law, it is an open invitation to litigants to delay compliance until the very last moment, causing the other party to lose time and money trying to enforce the court order.”
The problematic language in the Court of Appeals decision dealt with the use of remedial contempt when the original violation of the court’s order had been corrected.  The court held:

“[W]e disagree that remedial contempt was properly employed in this case. As noted, a remedial sanction is imposed to ensure compliance with court orders for the purpose of terminating a continuing contempt of court. WIS. STAT. § 785.01(3). Here, Ronald’s contempt was his failure to furnish accurate income information by way of timely produced copies of tax returns. But the undisputed fact is that the returns were produced, albeit belatedly, prior to any pronouncement of contempt. Thus, any prior contempt was no longer ongoing.”
To the extent that this holding is limited to the facts in this case (particularly, where there is a stipulation freezing child support – a very unusual occurrence), the decision is benign and the court’s ignoring the pleas to not publish will be meaningless.

On the other hand, if trial courts read the decision strictly, it could be used to argue that once the underlying act has been corrected, a court is deprived of remedial power.  Such a strict holding would cause great concern as it would allow manipulative parties to cause costs to the other side which could not be remedied by the trial court.

Once again, this case demonstrates the problems of publication decisions by the Court of Appeals.  As noted in this column previously, the entire rule prohibiting citations to the court’s own decisions is a bad one.  However, if the court is going to have such a rule, it would be nice if they would solicit and pay attention to the opinions of those in the trenches.  Here, the court chose not to, perhaps at great risk to innocent parties.

This article originally appeared in Wisconsin Law Journal.

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