Commentary: Case was poor candidate for publication.

• Author: Herman, Gregg

Byline: Gregg Herman

On April 26, 2006, the Wisconsin Court of Appeals ordered the decision in Frisch v. Heinrichs, 2006 WI App 64 published, despite written pleas from the American Academy of Matrimonial Lawyers, the Wisconsin Department of Workforce Development and the Wisconsin Family Court Commissioners Association to the contrary. Depending on how strictly the holding is read, the result may cause severe problems in allowing courts to order a person who disobeys a court order to make the innocent party whole.

The Court of Appeals decision reversed and remanded a postjudgment contempt judgment order with sanctions rendered by the Waukesha County Circuit Court Judge Ralph M. Ramirez, stemming from the husband's failure to timely provide copies of his income tax returns to the wife.

The case had a tortured factual and procedural history - one good reason right there why it should not be published. Cutting through a great deal of detail, the eventual holding was that a circuit court cannot use its remedial contempt powers to sanction a child support payor who fraudulently fails to timely provide copies of his tax returns, which, when produced, revealed greater income than previously represented.

Lost in the morass of the peculiar facts of the case is an important issue: What remedy is available when a support payor receives a substantial increase in income, but does not report it, contrary to Wis. Stats. 263?

In Frisch, the parties had reached an unusual stipulation to essentially freeze child support for a four-year period, thus mooting the effect of the reporting requirement. This question, then, will have to wait for another day.

The contempt issue, however, cannot wait. The danger the case poses was stated in the AAML letter, as follows: "[P]art of the language suggests that no contempt sanction can ever be granted, or finding of contempt made, if a person who has been disobeying a court order cures the disobedience at any time before the hearing. If this is the law, it is an open invitation to litigants to delay compliance until the very last moment, causing the other party to lose time and money trying to enforce the court order."

The problematic language in the Court of Appeals decision dealt with the use of remedial contempt when...