Dugan v. Lukens (In re J.V. L.)

347 Wis.2d 548

830 N.W.2d 722

2013 WI App 55

In re the Paternity of J.V. L.:Brea Nicole Dugan, Petitioner–Respondent,

v.Christopher M. Lukens, Respondent–Appellant.

No. 2011AP2148.

Court of Appeals of Wisconsin.

March 14, 2013.

OPINION TEXT STARTS HEREAppeal from orders of the circuit court for Dane County: David T. Flanagan III, Judge. Affirmed.

Before LUNDSTEN, P.J., SHERMAN and BLANCHARD, JJ.¶ 1SHERMAN, J.

Christopher Lukens appeals an order of the circuit court dismissing his motion to modify placement, custody, and child support with respect to his minor daughter, J.L., for failure to prosecute, under Wis. Stat. § 805.03 (2011–12),¹ and awarding sole legal custody and primary placement of J.L. to J.L.'s mother, Brea Dugan. Lukens argues alternatively that his conduct, which led to the dismissal of his motion, either was not egregious or was justified. He also argues that the portion of the court's order awarding Dugan sole legal custody and primary placement of J.L. is not supported by the evidence. We conclude that the circuit court properly exercised its discretion in determining that Lukens' conduct was egregious and without a justifiable excuse, and that the court's determination with respect to custody and placement was sufficiently supported by the record. Accordingly, we affirm.

BACKGROUND

¶ 2 The following undisputed facts are taken from the circuit court record. J.L. was born in November 2006. At the time of J.L.'s birth, her parents, Lukens and Dugan, while not married, were living together. A judgment of paternity was entered in 2007. At that time, the court did not address custody or placement for J.L., and it “held open” the issue of child support in light of Lukens' and Dugan's living arrangement.

¶ 3 In February 2009, Lukens moved the circuit court for “revision of physical placement, child custody, and child support.” ² Lukens alleged that because he and Dugan were no longer residing together, joint legal custody and substantially equal periods of physical placement were no longer practical. Lukens requested that primary physical custody and sole legal custody of J.L. be awarded to him. A guardian ad litem (GAL) was appointed for J.L. and the GAL was given interim authority to set a placement schedule for J.L. An interim order setting Lukens' child support obligation was entered by the court and the GAL established a placement schedule, which gave Lukens supervised placement with J.L. three days per week.

¶ 4 In June 2009, Dugan moved the circuit court for “modification of judgment,” seeking an order awarding her sole legal custody of J.L. During the same month, the Family Court Counseling Service (FCCS), to which the case had been referred, recommended that Dugan be awarded sole legal custody and primary physical placement of J.L. with Lukens having supervised visitation one day per week for three hours with the option of exercising supervised Saturday visitation every other week for three hours. Lukens filed an objection with the court to the conclusions contained in the FCCS recommendation.

¶ 5 In October 2009, the circuit court entered an interim ninety-day order awarding Dugan sole legal custody and primary physical placement of J.L., and awarding Lukens physical placement one day per week for three hours. The interim order also addressed the GAL's unpaid fees, and ordered Lukens to pay the GAL $8,000 within ninety days.

¶ 6 In January 2010, Dugan moved the court for a revision of Lukens' child support obligation and for contribution to her attorney's fees. In April 2010, the family court commissioner granted Dugan's motion, increasing Lukens' monthly child support obligation from $500 to $704 and ordering him to contribute $300 per month toward Dugan's attorney's fees. Lukens moved the court for a hearing on the commissioner's order. In the meantime, in March, the GAL notified the court that Lukens had failed to pay $2,000 of the GAL fees that he was ordered to pay in October 2009 and that at that time her unpaid fees totaled $5,768.79. The GAL also notified the court that prior to trial, she would need a $1,000 advance to pay for her witnesses' fees. Following a status conference on the issues of the GAL's fees, the court advised the parties that it would not schedule a trial until the GAL's outstanding fees and a $2,500 advance deposit were paid.

¶ 7 In April 2010, Lukens retained new counsel. In May, Dugan moved the court for an order finding Lukens in contempt for failing to abide by the April 2010 order increasing his child support obligation and obligating him to contribute toward her attorney's fees. In June, Lukens asked the circuit court to hold a de novo hearing on Dugan's January 2010 motion to increase his child support obligation and contribute to her attorney's fees, and for a stay of the contempt proceeding. The court denied Lukens' request for a stay, but scheduled a de novo hearing on Dugan's motion.

¶ 8 In June 2010, before the hearing was held on Dugan's January 2010 motion to modify child support, the circuit court found Lukens to be in contempt of the April 2010 order issued by the family court commissioner increasing his support obligation. As a purge condition of his contempt, the circuit court ordered Lukens to deposit an anticipated $6,000 commission check from his employer with his attorney, who would hold the money in trust. Lukens, however, failed to do so and instead deposited the check in his personal bank accounts.

¶ 9 In August 2010, the circuit court held the de novo hearing on Dugan's motion to modify support. The court found Lukens in “remedial contempt” for failing to contribute to Dugan's attorney's fees and pay the increased child support, as ordered in the April 2010 order. The court described Lukens' contempt as “the most serious[ ]” case of contempt it had “ever seen in a family case,” and found that Lukens had the ability to pay but intentionally chose not to. The court also found Lukens to be “outrageously” in contempt for failing to deposit his $6,000 commission check with his attorney. The court sentenced Lukens to forty days in jail, which was stayed in the event that Lukens turned over to Dugan's attorney, by September 30, “the entire” proceeds in the checking accounts into which he deposited his commission check.

¶ 10 On August 23, 2010, the circuit court entered a written contempt order consistent with its findings at the hearing, including the directive that Lukens transfer the entire contents of the specified bank accounts to Dugan's attorney, to be applied to all of Lukens' outstanding legal fee and support obligations. The court also entered an order increasing Lukens' child support obligation. On the date the court entered the order of contempt and child support, Dugan's counsel wrote to the court objecting to the form of the contempt order. The parties then exchanged multiple letters regarding the content of the orders. On September 30, the court entered an order holding that Lukens had purged his contempt.

¶ 11 In December 2010, the GAL moved for another order of contempt against Lukens, this time on the basis that he had failed to pay her fees, as ordered. The GAL advised the court that Lukens' outstanding balance as of December 1 was $3,451.19. The court granted the GAL's motion and entered a contempt order in February 2011. The court ordered Lukens to make regular monthly payments to the GAL until the balance he owed was paid in full, or spend thirty days in jail. Lukens requested a de novo hearing on the court's contempt order and a hearing was scheduled for March. However, the day before the hearing, Lukens withdrew his request for a hearing and asked for a scheduling conference so that the case could “move forward to an evidentiary hearing on the merits of [Lukens' February 2009 motion].”

¶ 12 In March 2011, Dugan moved the court to dismiss Lukens' February 2009 motion to establish placement, support and custody on the grounds that he had failed to prosecute it. Also in March, the GAL notified the court that Lukens had not had any placement with J.L. since August 17, 2010, and, essentially, explained that the lack of visitation was because of Lukens' failure to make payments for a professional supervisor of such placements and that Lukens had appeared to prioritize “litigating financial issues” over pursuing placement time with his child. The GAL stated that Lukens had not responded to her correspondence regarding future placement with J.L. The GAL advised the court that Lukens declined holiday placement with J.L. because he did not agree with the terms proposed by the GAL and that Lukens had refused to participate in J.L.'s therapy despite the GAL's requests that he do so. In response, Lukens asked the court to disregard the GAL's March 2011 correspondence and asked that an evidentiary hearing on his February 2009 motion be set.

¶ 13 In August 2011, the circuit court granted Dugan's motion to dismiss Lukens' February 2009 motion. The court concluded that Lukens' “failure to pursue, for a two year period, the February 25, 2009 motion to modify placement [was] egregious and without justification.” The court concluded that Lukens had “at all material times possessed the means to discharge the various fees, support and costs assessed against him,” and that he had “repeatedly and unreasonably failed to exercise specific times of placement pursuant to the interim placement orders of the GAL.” The court further concluded that Lukens “had constructive notice of the possibility of dismissal for failure to prosecute beginning with the court's reluctance to schedule a final hearing” in September 2009 “because [Lukens] had at that point accrued substantial unpaid GAL fees in violation of court order.”

¶ 14 The court also addressed the issues of placement and custody in its August 2011 order. The court determined that the FCCS report, which was prepared in June 2009, and the GAL's consistent recommendation created a “sufficient factual...