Contempt finding requires evidentiary hearing.

Byline: David Ziemer

It violated due process and sec. 785.03, where a court found an attorney in contempt based on affidavits, rather than an evidentiary hearing, the Wisconsin Court of Appeals held on Sept. 25.

Hazel Washington, an attorney, negotiated settlements on behalf of four minors injured in an automobile accident. She was then appointed the minors' guardian ad litem for the purpose of obtaining court approval of the settlements.

Milwaukee Circuit Court Judge William J. Haese approved the settlements, as well as Washington's attorney fees for pursuing the personal injury claims. Haese also ordered that Washington's attorney fees and various subrogated claims be paid out of the settlements.

The remaining balances were ordered to be placed "in a restrictive trust at any bank, savings and loan institution or like institution; said account is to be restricted in that funds shall not be withdrawn from said account until the minor child ... reaches the age of 18 or by court order."

However, the money was not placed in restricted accounts, and the balances had been partially or completely withdrawn. At a status conference, Washington informed the court that the minors' mothers had withdrawn the funds to purchase clothing and blankets for the children.

The circuit court declined to take testimony from the mothers and said that it would refer the matter to the district attorney's office and appoint a referee to further investigate the matter, but the record does not reflect whether either step was taken.

The next day, the circuit court appointed attorney Theodore Hodan to replace Washington as guardian ad litem for the four minors.

Hodan moved the court to order that Washington personally repay the depleted settlement funds. He also requested that the court vacate the order approving Washington's attorney fees from the settlement, and order her to pay Hodan's fees for pursuing recoupment of the funds on behalf of the minors.

The court granted Hodan's motion only with regard to ordering Washington to repay the missing settlement funds. However, Washington did not do so by the prescribed deadline. Hodan renewed his motion, and this time, the court granted it in its entirety.

The court thus entered judgments against Washington for the original balances in the minors' accounts, plus interest, and for the guardian ad litem fees submitted by Hodan. The court also vacated the payment of attorney fees to Washington from the personal injury settlements she...