O'Flaherty Heim Birnbaum Kirchner & Curtis Ltd.

O'Flaherty Heim Birnbaum Kirchner & Curtis Ltd. > Family Law > Court Need Not Deny Motions In Written Order And Property Division In Divorce Must Be Stayed When CHIPS Action Pending

Court Need Not Deny Motions In Written Order And Property Division In Divorce Must Be Stayed When CHIPS Action Pending

In Rabine v. Rabine, the court of appeals held that 1) the circuit court did not err when determining placement of the parties’ minor children in the divorce decree because section 802.01(2) does not require a court to grant or deny all motions in a written order; and 2) that the final property division in the divorce action must be stayed pending resolution of a subsequently filed CHIPS action.   

Rabine is an unpublished court of appeals decision, but it may be cited for its persuasive value.  In Rabine, the circuit court in the divorce matter issued a non-final memorandum decision on January 29, 2010 concerning the placement of the children and the property division.  The nonfinal decision also stated that the issue of child support would be addressed at a later date. 

On May 24, 2010, Gaylan filed a motion requesting child support in reconsideration of the court’s mandate to sell the house.  On June 2, 2010, after a hearing, the circuit declined to award child support or issue a new decision on the sale of the house.

In August 2010, a CHIPS action was started in Shawano Court which placed the four minor children with Gaylan.  On August 5, 2010, Gaylan filed a motion with the divorce court (Sauk County) to reconsider the prior ruling in light of the CHIPS proceeding.  On August 20, 2010, the court issued a final decision regarding in the divorce matter which was consistent with the prior non-final decisions. Gaylan appealed.

On appeal, Gaylan argued that the circuit court erred when it issue a final divorce judgment without addressing the topics he raised in his pre-judgment motions.  The court of appeals disagreed.  Gaylan argued that placement should have been revisited because a CHIPS action had been started which awarded him placement of the children, which conflicted with the divorce judgment that had shared placement.  Gaylan argued that under §802.01(2), the court of appeals must reverse the circuit court’s ruling because it failed to consider his motions  The court of appeals stated that §802.01 says nothing about a right to an order, or more particularly, that a court must grant or deny all motions in a written order.  Further, case law has set forth the rule that “a motion which is not acted on by the trial court is deemed denied.”  See Berna-Mork v. Jones¸ 173 Wis.2d 733, 496 N.W.2d 637 (Ct.App. 1992). 

Gaylan further argues that the court applied the wrong standard of review because it did not apply the relevant facts in this case.   Gaylan argues that the court should not have required that the house be sold because it did not consider what the children needed under the CHIPS action.  Additionally, Gaylan argues that the facts involving the costs of rent/mortgage and the net proceeds were mistaken.

The court of appeals rejected Gaylan’s first argument that the divorce judgment conflicted with the CHIPS action which required an examination of the “basic needs” of the children.  Section 48.15 does require that the jurisdiction of the juvenile court take precedence over divorce court, and that the divorce court avoid taking action which conflicts with juvenile court.  However, the case law further states that the divorce court retains jurisdiction over anything not conflicting with the juvenile court.  In this case, Gaylan failed to show that the court’s divorce order ran afoul of §48.15 of the children’s code. 

Lastly, Gaylan argues that the numbers on which the divorce court based its decision were wrong, and therefore the facts are mistaken.  Pursuant to LeMere v. LeMere, there is a presumption of equal division of property.  The court may deviate after considering statutory factors.  In this case, the circuit court stated that the sale of the house was based upon an equal division.  Gaylan states that the court should have let him keep the house because the numbers set forth at trial were incorrect.  However, Gaylan provided no legal argument to the court as to why the property division should be delayed for any period of time. Even assuming that Gaylan’s argument is correct, the court did not misuse its discretion in determining the lesser of two evils.

Comments are closed.