Julie Ann Hynek v. Christopher Michael Hynek

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 16, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2148 Cir. Ct. No. 2009FA106

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

JULIE ANN HYNEK,

JOINT-PETITIONER-RESPONDENT,

V.

CHRISTOPHER MICHAEL HYNEK,

JOINT-PETITIONER-APPELLANT.

APPEAL from an order of the circuit court for Richland County:
WILLIAM ANDREW SHARP, Judge. Affirmed.

Before Blanchard, Kloppenburg, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purpose specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2148

¶1 PER CURIAM. Christopher Hynek appeals a post-divorce order
that denied his motions for contempt and enforcement of a stipulation on child
support. We conclude that the circuit court properly denied the motions on the
grounds that the stipulation was nonfinal and, therefore, not binding. We also
reject Hynek’s arguments that Hynek’s ex-wife, Julie Knoble, is guilty of criminal
failure to support a child, that Knoble’s attorney is liable for civil conspiracy, and
that the circuit court judge was biased against Hynek. Accordingly, we affirm.

BACKGROUND

¶2 Hynek and Knoble were married in 1997 and divorced in 2012, at
which time they had two minor children. An amended judgment of divorce
entered in 2013 ordered Knoble to pay Hynek $238 per month for child support.

¶3 In 2014, Hynek moved to modify child support. During a hearing on
the motion, Hynek asked for a break to allow the parties to discuss the possibility
of a stipulation. Following a recess, Knoble’s attorney advised the court:

I think … we’ve reached a financial stipulation. I’m going
to read that into the record now. I have started to reduce it
to writing. I’ve emailed it to both parties and everyone’s
going to take a final review and we will forward it to the
Court as an order.

¶4 The proposed stipulation established updated annual income
amounts for each of the parties that would have resulted in a new monthly child
support obligation of $495.15. It also addressed the exchange of financial
information for annual adjustments going forward. The circuit court asked each of
the parties whether the proposed stipulation read by counsel was acceptable, and
each indicated that it was. The court then thanked the parties “for being able to
resolve this.”

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¶5 Following the hearing, the parties exchanged a series of emails
discussing revisions to the proposed stipulation, but never signed a finalized
stipulation sent to the court. Knoble attempted to pay the increased amount of
child support, but the child support agency returned to her the money in excess of
the order that it had on file.

¶6 In 2018, Hynek filed companion motions asking the court, among
other things, to sign the proposed stipulation and award him back child support
with interest from the date of the hearing, and to hold Knoble in contempt for
failing to comply with the proposed stipulation. In the alternative, Hynek moved
for a modification of child support based upon the statutory formula.

¶7 The circuit court entered an order prospectively increasing Knoble’s
child support obligation to $1,145 per month, but the court declined to award
arrears or to find Knoble in contempt. The court deemed the question of the
validity of the proposed stipulation to be moot based upon the new child support
order and sua sponte ruled that the stipulation was in any event “void for laches.”

¶8 Hynek moved for reconsideration, arguing that the proposed
stipulation was enforceable because it satisfied the requirements of WIS. STAT.
§ 807.05 (2017-18)1 and laches did not apply. Hynek further alleged that the
circuit court exhibited bias against him by declining to award arrears. In denying
the reconsideration motion, the court made a factual finding that the proposed
stipulation read into the record was preliminary, not final. The court deemed that

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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finding to be dispositive of all Hynek’s arguments in favor of arrears, which were
premised upon the existence of a final stipulation.

¶9 Hynek, pro se, appeals, raising eight related issues: (1) whether the
proposed stipulation read in open court is binding in its entirety under WIS. STAT.
§ 807.05; (2) whether any individual facts set forth in the proposed stipulation can
be treated as controlling on the parties pursuant to case law; (3) whether the
proposed stipulation could be nullified by the parties’ subsequent negotiations
over additional terms; (4) whether the circuit court erred in applying laches to his
request for arrearages; (5) whether Knoble violated WIS. STAT. § 948.22 by failing
to make payments in an amount that she should reasonably have known she was
obligated to provide; (6) whether Knoble’s attorney aided and abetted her client
and committed civil conspiracy by reopening negotiations, rather than fulfilling
her obligation to send the court an order to be signed; (7) whether the circuit court
would err again by applying laches if the matter were remanded; and (8) whether
there is evidence of judicial bias by the circuit court.

DISCUSSION

¶10 As a threshold matter, we agree with the circuit court that most of
Hynek’s arguments are based upon the premise that the proposed stipulation read
in open court was final with respect to the items it addressed. We therefore begin
our analysis by considering whether we can sustain the circuit court’s
determination that the proposed stipulation was only preliminary.

¶11 Whether a stipulation was validly entered into is a question of law
that we review de novo. Steven G. v. Herget, 178 Wis. 2d 674, 681-84, 505
N.W.2d 422 (Ct. App. 1993). Here, we conclude that the parties never entered
into a final, binding stipulation.

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¶12 Our determination is supported first by the language used by counsel
when reading the proposed stipulation into the record. Counsel said that she
thought the parties had reached a stipulation and that she had started to reduce it to
writing. Further, she said that the parties were going to take a “final review” of
the stipulation before forwarding an order to the court to sign. This plainly
indicates that the parties had not yet agreed that the language of the proposed
stipulation was final. Additional testimony and evidence that the parties continued
negotiating after the hearing at which the proposed stipulation was introduced also
supports the conclusion that the stipulation read into the record was conditioned
upon final approval, and therefore not yet binding upon anyone.

¶13 In context, the fact that the court thanked the parties “for being able
to resolve this” does not compel a contrary conclusion that the proposed
stipulation was final. The court’s comment can be reasonably understood as
thanking the parties for their efforts at settlement, in anticipation that a final
stipulation would be forthcoming. The court did not state on the record that it was
adopting or approving the proposed stipulation.

¶14 We conclude that the preliminary and conditional nature of the
proposed stipulation is dispositive with respect to the first, second, third, fourth,
and seventh issues that Hynek raises on appeal. WISCONSIN STAT. § 807.05
provides that no agreement or stipulation is binding unless it is either made on the
record and entered into the minutes or recorded by the recorder or made in writing
and signed by the party to be bound. It does not follow that every agreement made
on the record results in a binding stipulation. Here, the parties merely agreed that
they had produced language for a proposed stipulation that would be subject to
their final review. Because the parties conditioned entry of a written order on their
final review of the proposed language but never provided final approval, no

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binding stipulation was ever entered as to the specific terms of the parties’ updated
incomes, modification of child support, or future exchanges of financial
information. Because no binding agreement on terms was entered in the first
place, the effect of any subsequent negotiations or the potential application of
laches to the enforcement of the terms in the proposed stipulation are meaningless.
Finally, because the proposed stipulation never went into effect, no arrearages ever
accrued.

¶15 As to Hynek’s fifth and sixth issues, it appears that he is attempting
to raise them for the first time on appeal. This court will generally not consider
issues raised for the first time on appeal, so that we do not “blindside trial courts
with reversals based on theories which did not originate in their forum.”
Schonscheck v. Paccar, Inc., 2003 WI App 79, ¶¶10-11, 261 Wis. 2d 769,
661 N.W.2d 476. We do not see a sound reason here to depart from the general
rule. Further, it is not clear what available remedy Hynek seeks with regard to his
claims of Knoble’s failure to support and counsel’s conspiracy to aid and abet
Knoble’s failure to support. WISCONSIN STAT. § 948.22 is a criminal statute.
Neither the circuit court nor this court could issue criminal charges in the context
of a post-divorce proceeding. Similarly, we would have no authority to award
damages for a civil conspiracy claim in the absence of a civil lawsuit to which
counsel was party. To the extent that Hynek is citing these theories only in
support of his other claims that the proposed stipulation should be enforced, they
suffer from the same fatal defect that the stipulation was never finalized, and
therefore did not create a legal support obligation with which either Knoble or
counsel needed to comply.

¶16 Finally, Hynek contends that the circuit court was biased against
him. Due process requires an impartial tribunal. State v. Goodson, 2009 WI App

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107, ¶8, 320 Wis. 2d 166, 771 N.W.2d 385. In analyzing a claim of judicial bias,
we begin with the presumption that a judge is fair, impartial, and capable of
ignoring any potentially biasing influences. State v. Gudgeon, 2006 WI App 143,
¶20, 295 Wis. 2d 189, 720 N.W.2d 114. To overcome that presumption, a party
must demonstrate the objective2 existence of “actual bias” (i.e., that the judge in
fact treated the party unfairly), or the “appearance of bias” (i.e., that under the
circumstances “a reasonable person—taking into consideration human
psychological tendencies and weaknesses—[would conclude] that the average
judge could not be trusted to “‘hold the balance nice, clear and true’”). Id. at
¶¶20-24 (quoted source omitted). Opinions formed by a judge based upon facts
introduced or events occurring during the course of a current or prior proceeding
involving a party do not constitute the basis for a bias or partiality motion unless
they display “‘a deep-seated favoritism or antagonism that would make fair
judgment impossible.’” State v. Rodriguez, 2006 WI App 163, ¶36, 295 Wis. 2d
801, 722 N.W.2d 136 (quoted source omitted); see also Liteky v. United States,
510 U.S. 540, 555 (1994) (judicial rulings alone almost never constitute a valid
basis for a partiality motion).

¶17 Hynek cannot demonstrate actual bias here because the circuit
court’s ultimate decision not to award arrearages was correct, and not unfair.
Hynek has also not shown the appearance of bias, because he has not identified
any circumstances here that would lead a reasonable person to believe that the
average judge in these circumstances could not be trusted to be impartial toward

2
Although there is also a due process concern if a judge is subjectively biased, that is a
determination that can be made only by the judge. State v. McBride, 187 Wis. 2d 409, 414-15,
523 N.W.2d 106 (Ct. App. 1994).

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No. 2018AP2148

him. Nor can we conclude that the judge’s rulings as a whole display a deep-
seated antagonism toward Hynek that would make fair judgment impossible when
Hynek ultimately prevailed on his motion to prospectively increase child support.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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