2004AP1653 Wittig v. Hoffart

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“The only possible effect Wittig’s April 18, 2003, request to have the December, 2002, domestic-abuse injunction vacated could have on any subsequent litigation is to establish that she sought vacatur for the reasons she testified to. Her request certainly did not wipe out the historical facts that underlay her petition seeking the domestic-abuse injunction or the circuit court commissioner’s decision to grant it. Significantly, as the trial court recognized, Wittig’s current petition did not seek to have the December, 2002, domestic-abuse injunction reinstated. Rather, her petition sought the issuance of a new injunction, based on things that Hoffart did to her after April 18, 2003. …

“Significantly, as we have seen, the legislature has commanded judges and circuit court commissioners to consider the respondent’s ‘pattern of abusive conduct’ in determining whether to issue a domestic-abuse injunction. …

“Second, Wis. Stat. Rule 904.04(2) also did not prevent the trial court from considering whether Hoffart’s post-April 18, 2003, threats against Wittig were innocuous expressions of frustration on the one hand, or were serious ‘true threats’ on the other….The trial court recognized that the acts underlying the December, 2002, domestic-abuse injunction were relevant both to predict Hoffart’s future conduct vis-à-vis Wittig, and, also, to gauge the seriousness of his threats against her. The trial court also applied the balancing required by Wis. Stat. Rule 904.03 and determined that the probative value of that evidence was not ‘substantially outweighed by the danger of unfair prejudice’ to Hoffart. The trial court did not, by any stretch, erroneously exercise its discretion in admitting evidence of what it found Hoffart had done before April 18, 2003. …

“As we have seen, the trial court credited both the testimony of Wittig and that of Hoffart’s sister, and it did not believe Hoffart’s denials. Further, the trial court found that Wittig was afraid of Hoffart’s threats and that her fear was objectively reasonable because of Hoffart’s pattern of abusive conduct. Thus, applying the Perkins constitutional standard to those threats, the trial court determined that they were ‘true threats’ that would support issuance of a domestic-abuse injunction under Wis. Stat. § 813.12. Based on the trial court’s findings of fact, we agree on our de novo review that Hoffart’s threats to harm Wittig were not constitutionally protected, and reached the requisite level of ‘true threats.’”

Accordingly, we affirm.

Recommended for publication in the official reports.

Dist I, Milwaukee County, DiMotto, J., Fine, J.

Attorneys:

For Appellant: David A. Nelson, West Bend

For Respondent: James K. Jaskolski, Greenfield