Commentary: Open letter to Wisconsin's appellate judges.

• Author: Herman, Gregg

Byline: Gregg Herman

In my last article, I offered some unsolicited advice to the incoming Wisconsin Legislature. Surprisingly, the lawmakers have yet to express their gratitude. In any event, to be fair, I thought I should likewise offer some unasked-for advice to appellate courts in family law cases.

Dear Appellate Courts:

If you have been reading this column over the years (evidently not), you are familiar with most of the following. Still, to synthesize the opinions of one practitioner: 1. Don't tie the hands of trial courts. Family law cases do not come in one-size-fits-all packages. What makes the practice of family law so interesting is the infinite variety of experiences. As a result, most appellate cases afford trial courts wide discretion to fashion remedies that fit the individual circumstances of the case. When an appellate court ties the hands of a trial court, it has the effect of trying to force a square peg into a round hole. 2. Don't tie the hands of the parties. Criminal law allows defendants to waive constitutional rights to a lawyer, a jury trial and other important rights. So, where there is no state interest, why should family law not allow parties to negotiate purely statutory rights? Although the opinion has been withdrawn for further consideration, a perfect example is in the recent case of Motte v. Motte, No. 2005AP002776 (Ct. App. Sept. 27, 2006, withdrawn Oct. 5, 2006), where the appellate court threw out two stipulations by the parties, one of which neither party even asked the court to reject. This is supposed to be a free country and, absent a state interest, fraud or other substantial overriding concern, going through a divorce should not change that. 3. Be careful with your use of words. Since law is merely semantics, your choice of words can be incredibly important. By means of example, in Derr v. Derr, 2005 WI App 63, 280 Wis. 2d 681, 696 N.W.2d 170, Judge Paul Lundsten pointed out the confusion in terminology in prior court of appeals cases involving excluded property. These changes in terminology can be very confusing. While the Derr case goes a long way toward clearing up confusion in cases involving excluded property, it would be nice if no such confusion existed in other areas, either. 4. Fully consider all potential implications of your decisions. Recently, in Frisch v. Heinrichs, 2006 WI App 64, 280 Wis. 2d 739, 713...