2008 provides dearth of family law decisions

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Wisconsin’s appellate family law cases from 2008 can be characterized best by … their severe paucity.

Speculation on the reasons will follow. Bur first, the cases.

Steinmann v. Steinmann, 2008 WI 43

The main issue involved a “Limited Marital Property Classification Agreement,” classifying various assets and income. The wife argued the circuit court should have applied tracing rather than transmutation principles in applying the agreement. She reasoned that, had the court properly applied tracing principles, it would have identified the jointly-titled properties as her individual property under the agreement and awarded her full interest in them.

The Supreme Court disagreed, holding that although tracing and transmutation principles may be employed outside the context of gifted and inherited property, the application of these principles in the present case did not affect the ultimate determination regarding equitable property distribution.

State v. Robin M.W., 2008 WI App 60

The parties married after their child’s birth, but no father’s name was on the birth certificate. Although the parties separated, no divorce was ever filed. Since the mother had received public assistance, the state contacted her to initiate paternity proceedings.

When she refused to file an “Acknowledgment of Marital Child” form, the state filed an action to establish paternity. The father sought to dismiss the case, since the parties were still married. The trial court denied his motion.

The Court of Appeals affirmed, holding that the matter was controlled by sec. 767.80(1)(h) and (6m), which require the state to initiate a paternity action where no father’s name appears on the birth certificate and paternity hasn’t been acknowledged. The marital presumption of paternity doesn’t relieve the state of its obligations under the statute.

Further, since the parties are still married, the paternity action doesn’t need to address custody, physical placement or support. Finally, the court held that establishing paternity promotes the child’s best interests.

Welytok v. Ziolkowski, No. 2007AP347

Attorney Jill Gilbert Welytok filed for a harassment injunction against attorney Timothy Ziolkowski. After a hearing, the circuit court ordered the injunction.

On appeal, Ziolkowski made four arguments:

(1) The court didn’t consider the “no legitimate purpose” element of sec. 813.125;

(2) His constitutional rights were violated because the court allowed Welytok’s corroborating witness to testify telephonically rather than in person;

(3) The court’s factual findings weren’t supported by a reasonable view of the evidence; and,

(4) The court’s injunction was overly broad.

In the most boring decision of the year, the appellate court rejected all four arguments, holding that the circuit court properly exercised its discretion in each instance.

Lubinski v. Lubinski (O’Rourke), No. 2007AP1701

Post-judgment, the parties agreed to a placement schedule that was incorporated into an order. The father was later ordered to report for military active duty. He sought an injunction ordering the mother to strictly comply with the placement order while he was in active duty and seeking visitation rights for his new wife. His new wife filed her own petition for visitation rights under the same schedule as granted to her husband.

The trial court granted both petitions, but the Court of Appeals reversed, holding that physical placement rights are not transferable. The court held that physical placement bestows rights associated with legal custody, and the new wife has no claim to placement or custody in this case. In addition, the mother has a liberty interest in determining her child’s visitation schedule with others, and there were no facts in this case justifying state intervention with that right.

Stuligross v. Stuligross, No. 2008AP311

The husband appealed, pro se, after the trial court failed to hold an evidentiary hearing on his request for de novo review of the family court commissioner’s order.

The appellate court held that the plain language of sec. 757.69(8) entitles a party who requests a hearing de novo to a hearing that includes testimony, rather than simply a review of what occurred before the family court commissioner. The court held that “[A] de novo hearing requires a fresh look at the issues, including the taking of testimony (unless the parties enter into stipulations as to what the testimony would be). The hearing is literally a new hearing, not merely a review of whatever record may have been made before the family court commissioner.”

This holding is certainly in accordance with Wisconsin law — in fact, the Court of Appeals made the same ruling years ago in Long v. Wasilewski, 147 Wis. 2d 57 (Ct. App. 1988), which for some reason isn’t cited in Stuligross. Perhaps the Court of Appeals database doesn’t go back that far?

A Dearth of Opinions

The total is one Supreme Court case in all of 2008 (and no family law cases are on the docket for this term), and four published Court of Appeals cases — one of which is a harassment case and not really a family law case at all.

What gives? While no data is immediately available, anecdotal evidence suggests that fewer cases are being litigated. Fewer litigated cases, of course, means fewer appeals.

Why are fewer cases being litigated? Certainly, much of the credit — and it is a credit in this area to settle a case — goes to various methods of alternative dispute resolution, including mediation, collaborative and cooperative divorce.

There is data, however, which might provide another explanation: The number of pro se cases has skyrocketed in the past several years. Recent statistics in Milwaukee County reflect that as many as 84 percent of family law cases are pro se on at least one side.

While pro se parties can and do litigate, I surmise that litigation and appeals are more likely if lawyers are involved.

Is the lack of litigation and appeals a good or bad thing? For appellate judges, who are on salary rather than piecework, it’s undoubtedly a positive. For trial courts, the lack of litigation is a good thing, too, although the extent to which it is due to pro se parties is not so good. For a columnist (it is all about me, isn’t it?), nothing could be worse!