Jahimiak v. Jahimiak

410 Wis. 2d 557

In re the marriage of:

Ann Marie Jahimiak, Petitioner-Respondent,

v.David Ralph Jahimiak, Respondent-Appellant.

Court of Appeals

No. 2023AP573. Submitted on briefs September 14, 2023.— Decided December 21, 2023.

2024 WI App 5

(Also reported in 2 N.W.3d 756.)

APPEAL from an order of the circuit court for La Crosse County: RAMONA A. GONZALEZ, Judge. Affirmed in part; reversed in part and remanded.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Amy Hetzner of Schmidt Rupke Tess-Mattner & Fox, S.C., Brookfield.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Laura J. Seaton of Bosshard Parke, Ltd., La Crosse.

Before Kloppenburg, P.J., Blanchard, and Taylor, JJ.

¶ 1. BLANCHARD, J. David Jahimiak and Ann Jahimiak were divorced in 1999. David appeals rulings made by the circuit court in 2023 regarding David's motion to modify maintenance payments and awarding attorney's fees to Ann.¹ The court's rulings resulted from a hearing de novo that followed a court commissioner order.

¶ 2. As a threshold issue, David contends that the circuit court lost competency to hold the hearing de novo, and the parties must follow the court commissioner's order, because the circuit court held its hear- ing more than 60 days after Ann filed a motion seeking the hearing. See Wis. Stat. § 767.17(3) (2021–22) ("The [circuit] court shall hold a hearing de novo no later than 60 days from the date of the filing of the motion" seeking the hearing de novo).² We reject this argument, based on our interpretation of the word "shall" in § 767.17(3). In a case of first impression, we conclude that this imposes a directory duty on the circuit court, not a mandatory duty, and therefore the court did not lose competency to hold the hearing when it did.

¶ 3. Separately, David argues that the circuit court erroneously exercised its discretion in ordering modification of his monthly maintenance to $3,850, and that he should pay less. We conclude that David has shown that the court failed to explain adequately the basis for this award and our independent review of the record does not reveal a basis. Accordingly, we remand for further proceedings at which the court is to explain the basis for whatever modification decision the court deems appropriate, as the facts existed when the court issued its ruling in February 2023.

¶ 4. David also contends that the circuit court erroneously exercised its discretion in awarding Ann some of her attorney's fees. We conclude that David fails to show that the court erroneously exercised its discretion in awarding the attorney's fees.

BACKGROUND

¶ 5. By the time of the 1999 divorce, Ann and David had been married for more than 27 years. At that time, Ann was 49, worked as a sales clerk part time, and attended college part time. David was 51 and worked as a self-employed dentist. The circuit court awarded Ann "permanent spousal maintenance of $4,500 per month," which "shall continue until the death of either party or [Ann's] remarriage."³ However, despite using the term "permanent," the court also Stated that "[t]he amount of maintenance may be reviewed by the Court when [David] reaches an appropriate age of retirement, which this Court now anticipates being age 65. "⁴

¶ 6. In September 2020, when David was 73, he brought a motion, accompanied by an affidavit, requesting a termination or reduction of his mainte- nance obligation, pursuant to Wis. Stat. § 767.59, based on factors that included David's work status and health issues. Ann opposed David's motion. The court commissioner held a hearing, followed by a hearing de novo before the circuit court in September 2021. The circuit court denied David's motion, leaving the monthly amount at $4,500. The court determined that there was "no reason" to modify the original maintenance order because David had not yet retired from his dental practice "and there was no substantial change in circumstances in 2021 to change the amount of spousal maintenance." David represented at a September 2021 hearing that he planned to fully retire on November 15, 2021.⁵

¶ 7. On October 19, 2021, David filed the motion at issue in this appeal, with an accompanying affidavit. He sought "an order terminating maintenance as of November 18th, 2021 [,] based on the facts that David … is undergoing a spinal fusion at that time and will be unable to work for a minimum of three months," "with a recovery expected to be approxi- mately 12 months," and that he had "entered an agreement to terminate his ownership in the dental practice and to cease operation as of November 12, 2021."

¶ 8. After hearing evidence, the court commissioner rendered an oral decision on June 8, 2022. As memorialized in a written order issued on July 25, 2022, the commissioner denied the request to terminate maintenance, but ordered that monthly maintenance payments be reduced to $2,800 and that any outstanding arrearages be vacated.

¶ 9. On June 10, 2022, Ann filed a motion for a hearing de novo in the circuit court. The motion noticed the hearing for August 22. On August 18, David filed a motion asking the circuit court to refrain from holding the hearing de novo because it had not been held within 60 days of Ann's June 10 motion, as required by Wis. Stat. § 767.17(3).⁶

¶ 10. The circuit court commenced the hearing de novo on the day noticed in Ann's motion, August 22. At the outset of the hearing, the court briefly addressed and denied David's motion based on the 60-day time limit. The court's reasoning involved the concept that David forfeited an objection based on a lack of court competency when he failed, upon his receipt of Ann's June 10 motion, to object to the August 22 noticed date.⁷

¶ 11. After taking evidence over the course of one day each in August, September, and October 2022, and considering proposed findings of fact and conclusions of law submitted by the parties, the circuit court issued a written order in February 2023 for the following: David to pay Ann $3,850 per month as of October 1, 2022, ending upon the death of either party or Ann's remarriage; David to pay Ann $1,200 in outstanding attorney's fees from an appeal to this court, plus $19,000 "trial court attorney fees and costs in order to level the playing field between the parties and to act as a deterrent for any future meritless litigation or bad faith actions." David appeals.

DISCUSSION

I. FAILURE TO HOLD DE NOVO HEARING WITHIN 60 DAYS

[1, 2]

¶ 12. There is no dispute that the circuit court held the hearing de novo more than 60 days after Ann moved for it. Therefore, we must interpret the meaning of "shall" in Wis. Stat. § 767.17(3)'s requirement that "[t]he court shall hold a hearing de novo no later than 60 days from the date of the filing of the motion … ." (Emphasis added.) Whether the circuit court lost competency to hold the hearing de novo turns on whether the 60-day time limit is mandatory or directory. See State v. Olson, 2019 WI App 61, ¶ 11, 389 Wis. 2d 257, 936 N.W.2d 178 ("A party's failure to comply with a statutory time limit deprives a court of competency to proceed only when the time limit is mandatory."). If "shall" in this context is mandatory, then the timing of the hearing deprived the court of competency to hold the hearing. But if "shall" is directory, then the court retained competency. See id. Whether a statutory time limit is mandatory or directory presents an issue of statutory interpretation that we review de novo. Id., ¶ 10.

[3]

¶ 13. "The word 'shall' is presumed mandatory when it appears in a statute." Id., ¶ 12. "When used in a statute imposing a time limit, however, the word 'shall' can nevertheless be 'construed as directory if necessary to carry out the legislature's clear intent.'" Id. (quoting Karow v. Milwaukee Cnty. Civil Serv. Comm'n, 82 Wis. 2d 565, 571, 263 N.W.2d 214 (1978)).

[4]

¶ 14. We rely on the following factors to determine whether a statutory time limit using the word "shall" is mandatory or directory:

(1) the purpose of the statute; (2) the statute's history; (3) whether a penalty or prohibition is imposed for the violation of the time limit; and (4) the consequences of interpreting the statutory time limit as either mandatory or directory, including whether the failure to act within the time limit works an injury or wrong [to persons other than the party that failed to act within the limit].

Olson, 389 Wis. 2d 257, ¶ 13 (citing State v. R.R.E., 162 Wis. 2d 698, 708, 711, 470 N.W.2d 283 (1991) (stating that pertinent "factors" "include 'the objectives sought to be accomplished by the statute, its history, the consequences which would follow from the alternative interpretations, and whether a penalty is imposed for its violation.'" (quoted source omitted))).⁸

¶ 15. We first provide additional background for context and then explain our conclusions based on each of the four factors.⁹

A. Additional background

¶ 16. Before Wis. Stat. § 767.17 was repealed and recreated in 2021 Wisconsin Act 205, the pertinent statutes were spare. Section 767.17 (2019-20) stated in its entirety: "A decision of a circuit court commissioner under [Chapter 767, "Actions Affecting the Family"] is reviewable under [Wis. Stat. §] 757.69(8)." In turn, § 757.69 addressed the powers and duties of court commissioners. The referenced subsection (8) stated in its entirety (as it continues to state after enactment of Act 205):

Any decision of a circuit court commissioner shall be reviewed by the judge of the branch of court to which the case has been assigned, upon motion of any party. Any determination, order, or ruling by a circuit court commissioner may be certified to the branch of court to which the case has been assigned, upon a motion of any party for a hearing de novo.

Sec. 757.69(8) (2019–20). Also pertinent for context are Wis. Stat. §§ 757.68(1) and 757.69(1), which have not been changed by Act 205 and which create the court commissioner role within...