Mark Emmett Gilbert v. Theresa Noelle Gilbert

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 14, 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. 2018AP2312 Cir. Ct. No. 2004FA412

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE MARRIAGE OF:

MARK EMMETT GILBERT,

JOINT-PETITIONER-APPELLANT,

V.

THERESA NOELLE GILBERT,

JOINT-PETITIONER-RESPONDENT.

APPEAL from an order of the circuit court for St. Croix County:
EDWARD F. VLACK III, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.
No. 2018AP2312

¶1 SEIDL, J. Mark Gilbert appeals a postdivorce order requiring him
to pay $28,117.63 to his former spouse, Theresa Gilbert.1 The circuit court
ordered the payment be made to Theresa in her role as trustee for a constructive
trust the court had previously imposed, as a remedial sanction, on Mark’s real
estate after finding him in contempt. Mark argues, for several reasons, that the
court erred in ordering the payment. We reject Mark’s arguments and affirm.

BACKGROUND

¶2 Mark and Theresa filed a joint petition for divorce in December
2004. In October 2005, the circuit court entered a judgment of divorce that
incorporated a marital settlement agreement (MSA) signed by both parties. The
MSA, which was “founded on” the financial disclosures made by each party,
required Mark to pay Theresa $1000 per month in child support for the parties’
three children, all of whom were minors at the time of divorce.

¶3 In July 2009, Mark filed a motion seeking to revise his child support
obligation. As a result of the proceedings related to Mark’s motion, Theresa
obtained Mark’s 2005 tax return. That return showed that Mark had a gross
income in 2005 of $424,785—substantially higher than the $62,145 of gross
income he had reported in a supplemental financial disclosure prior to the divorce.
Consequently, Theresa moved the circuit court to hold Mark in contempt. She
further requested that, as a sanction for Mark’s contempt, the court order
retroactive modification of Mark’s child support obligation.

1
Because the parties share a surname, we will refer to them individually by their first
names in this opinion. Mark, an attorney, is representing himself on appeal.

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No. 2018AP2312

¶4 The circuit court ultimately found Mark in contempt for failing to
report a substantial change in his income after the parties’ divorce. Rather than
impose the remedial sanction sought by Theresa, however, the court decided to
“craft [its own] sanctions that fit the circumstances.” Namely, after determining
that the parties’ children were entitled to benefit from the discovery of Mark’s
unreported income, the court imposed a $119,397 constructive trust on Mark’s real
estate. The court stated that “[t]his constructive trust shall be for the benefit of the
children’s post high school education, until the youngest child reaches the age of
25, the trustee being [Theresa].”

¶5 Mark appealed the circuit court’s contempt order. We affirmed in an
unpublished, one-judge opinion. See Gilbert v. Gilbert, No. 2011AP1905,
unpublished slip op. (WI App Mar. 6, 2012) (Gilbert I). We concluded, in
relevant part, that the court properly found Mark in contempt and that the court’s
imposition of a constructive trust on Mark’s real estate for the benefit of his
children was permissible under WIS. STAT. § 785.04(1)(e) (2009-10).2 Id., ¶¶15,
33.

¶6 Following our decision, Theresa filed a “motion for entry of
judgment.” In support, she stated that the “basis for the motion is for enforcement
of the constructive trust on Mark Gilbert’s real estate.” The circuit court denied
this motion in 2013, after concluding that, in essence, it had been filed
prematurely. The court explained:

[T]he constructive trust was established for the benefit of
the three minor children and was to be utilized to fund their

2
All future references to the Wisconsin Statutes are to the 2017-18 version unless
otherwise noted.

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post high school educations. The constructive trust was not
a pot of gold meant to benefit [Theresa]. Rather, it was
meant to benefit the three minor children and ensure that
they would have to pay little or nothing for their post high
school education. The oldest child … just turned eighteen
and this Court imagines that the timing of [Theresa’s]
motion is not a coincidence as college plans are presumably
right around the corner. As tuition, room and board, and
other college expenses become due, this Court reminds
[Mark] that unless covered by scholarships or grants that do
not have to be repaid, he is responsible for those expenses,
up to and including the total of $119,397, pursuant to the
operation of the constructive trust. Contrary to [Mark’s]
assertion, this Court has not lost jurisdiction over the
constructive trust and the ability to enforce it as an
equitable lien.

¶7 In November 2016, Theresa again moved the circuit court to find
Mark in contempt, alleging that he was refusing to contribute toward their
children’s college expenses. The court denied this motion for “virtually the same
reason” it denied Theresa’s earlier motion for entry of judgment—“because at that
time [i.e., November 2016] … there was no order ordering [Mark] to pay
anything.”

¶8 Theresa subsequently filed a “motion to modify constructive trust.”
Again, she based her motion on Mark’s refusal to pay for the children’s college
expenses. In response, the circuit court entered an order on February 12, 2018,
that required Theresa to provide “an itemized accounting of all amounts for post
high school expenses up to March 1, 2018, that she asserts should have been paid
by [Mark].” The court further ordered that “on or before March 31, 2018, [Mark]
shall pay the remaining amounts owed for each child, or, in the alternative,
provide to [Theresa] by March 31, 2018 reasons why any post high school
education was not paid.”

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No. 2018AP2312

¶9 On February 28, 2018, Theresa provided Mark with an itemized
accounting that detailed $28,117.63 worth of their children’s unpaid college
expenses. Mark refused to pay any of these expenses, and he informed Theresa
that “I did not pay the adult expenses referenced in the material because they are
not owed.” As a result, Theresa once again moved the circuit court to find Mark
in contempt.

¶10 Following a hearing on this latest contempt motion, the circuit court
entered a decision on November 12, 2018, in which the court ordered Mark to pay
Theresa “as trustee, the sum of $28,117.63.” The court reasoned that Theresa had
“satisfied this Court that the expenses set forth … are post high school education
expenses not covered by scholarships or grants. This case has now reached the
point that post high school education expenses have not been paid by [Mark] and
should be paid.” In addition, the court ordered Theresa to begin providing “semi-
annual itemized accounting” of unpaid college expenses, which Mark would be
obligated to pay “until the sum of $119,397.00 has been paid … or until the
youngest child reaches the age of 25, whichever occurs first.” Mark now appeals.

DISCUSSION

I. Competence

¶11 Mark argues that the circuit court lacked competence to order that he
pay Theresa, as trustee, $28,117.63. Competence refers to a court’s ability to
exercise its subject matter jurisdiction in a particular case. City of Eau Claire v.
Booth, 2016 WI 65, ¶12, 370 Wis. 2d 595, 882 N.W.2d 738. We independently
review questions of competency. Id., ¶6.

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¶12 Mark advances three separate arguments regarding the circuit court’s
alleged lack of competence to issue its November 12, 2018 decision and order.
We address, and reject, each argument in turn.

¶13 First, Mark contends that “[a]bsent an enforceable agreement
[between the parties] to the contrary, a circuit court has no competency to exercise
its jurisdiction to compel a parent to pay for post-majority support of adult
children.” In support of this contention, he relies on Bliwas v. Bliwas, 47 Wis. 2d
635, 638, 178 N.W.2d 35 (1970), in which our supreme court stated that “in the
absence of stipulation at least, the trial court’s jurisdiction to make provisions for
the care, custody, maintenance and education of children of the parties is limited
to minor children.”

¶14 Mark’s reliance on Bliwas is misplaced. As our supreme court has
explained, our legislature “significantly revised the family law code” in 1977, well
after the Bliwas decision. See Griffin v. Reeve, 141 Wis. 2d 699, 704, 416
N.W.2d 612 (1987). In light of that revision, the Griffin court held that “enforcing
support payments after the child reaches majority through proceedings in
contempt” lies within “the court’s power.”3 Id. at 708. Mark’s argument that the
court lacked competence to enforce its remedial sanction against him, simply
because his children are no longer minors, therefore fails.

¶15 Second, Mark argues that because the circuit court’s July 2011 order
was “an unambiguous final order,” the court had “no authority … to alter it and

3
As we stated in Gilbert v. Gilbert, No. 2011AP1905, unpublished slip op. ¶30 (WI App
Mar. 6, 2012) (Gilbert I), the circuit court’s remedial sanction against Mark was imposed due to
his failure to report a “substantial change in income,” which “shielded Mark from a child support
modification motion and deprived Theresa of her ability to request modification.”

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No. 2018AP2312

increase sanctions, 8 years after the fact.” We agree with Theresa that Mark’s
argument in this regard rests on a fundamental misunderstanding of the nature of,
and the purpose for, the court’s remedial sanction.

¶16 To explain, as the plain language of the original sanction made clear,
the circuit court imposed the constructive trust on Mark’s real estate “for the
benefit of the children’s post high school education.” Mark’s position—i.e., that
he has purged himself of any contempt through the court’s imposition of the
constructive trust on his real estate, and that the court has no authority to “alter” its
sanction—wholly ignores the purpose of the sanction (i.e., to secure payment for
the children’s post high school education).4

¶17 This oversight is no small matter, as “violations of a court order after
a finding of contempt may constitute a continuing contempt, and the circuit court
has statutory authority to issue an ‘order designed to ensure compliance with a
prior order of the court.’” Christensen v. Sullivan, 2009 WI 87, ¶74 n.16, 320
Wis. 2d 76, 768 N.W.2d 798. When Mark refused to make payments for the
children’s post high school education because—in his own words—“they [were]
not owed,” the circuit court had a sufficient basis to conclude that Mark was no
longer complying with: (1) the explicit purpose of the remedial sanction; and
(2) the February 2018 order stating he was to pay the itemized expenses supplied

4
Mark’s position that he has purged himself of any contempt relies on a footnote from
our opinion in Gilbert I, which he contends shows that we “agreed that the sanction and
alternative purge condition were one and the same.” We disagree. That footnote (which we
inserted in our discussion of whether Mark’s contempt was continuing for purposes of the
imposition of remedial sanctions) merely stated that “Frisch v. Henrichs, 2007 WI 102, 304
Wis. 2d 1, ¶¶61-63, 736 N.W.2d 85, also held that a purge condition and a remedial sanction
could be one and the same.” Gilbert I, No. 2011AP1905, ¶30 n.11. Because we did not even
discuss, much less hold, whether Mark’s contempt had, in fact, been purged by the imposition of
the constructive trust, we reject his argument.

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No. 2018AP2312

by Theresa or, in the alternative, to provide an explanation for why he could not
pay. As such, the court had the authority to issue its November 2018 decision and
order.

¶18 Third, Mark argues that Theresa is judicially estopped from arguing
that the circuit court’s remedial sanction “should be changed to include personal
payments or that the contempt has not been purged.”5 Judicial estoppel is a
doctrine that prevents a party from adopting inconsistent positions in legal
proceedings. Olson v. Darlington Mut. Ins. Co., 2006 WI App 204, ¶4, 296
Wis. 2d 716, 723 N.W.2d 713. There are three elements that must be met for a
party to successfully invoke the doctrine: (1) the later position must be clearly
inconsistent with the earlier position; (2) the facts at issues must be the same in
both proceedings; and (3) the party against whom the doctrine is to be applied
must have convinced the court in the earlier proceeding to adopt its position. Id.

¶19 In support of his judicial estoppel argument, Mark points to two
statements Theresa made in briefing during Gilbert I. Specifically, he contends
that Theresa convinced us to adopt her positions that the imposition of the
constructive trust purged Mark’s contempt and that the remedial sanction did not
“include personal payments.”

¶20 Theresa responds that Mark forfeited any judicial estoppel argument
by failing to raise it during the extensive litigation that took place in the circuit

5
Although Mark’s brief-in-chief frames his judicial estoppel argument as a challenge to
the circuit court’s competence, he fails to explain how the doctrine—if properly invoked—would
affect a court’s ability to exercise its jurisdiction in a given case. Nonetheless, we have chosen to
address the argument in this section, given Mark’s presentation of the issue and in light of the fact
that we deem him to have forfeited the argument.

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No. 2018AP2312

court following our decision in Gilbert I. Mark fails to respond to this argument
in his reply brief, nor does his brief-in-chief provide any record citation showing
that he raised a judicial estoppel argument below. We therefore deem him to have
conceded Theresa’s forfeiture argument.6 See Schlieper v. DNR, 188 Wis. 2d
318, 322, 525 N.W.2d 99 (Ct. App. 1994) (unrefuted arguments may be deemed
conceded).

II. “New” Sanction

¶21 Mark next contends that the circuit court failed to follow the
procedures set forth in WIS. STAT. § 785.04(1) when it issued its November 2018
decision and order. Whether a court followed proper procedures in exercising its
contempt power is a question of law that we review de novo. Evans v. Luebke,
2003 WI App 207, ¶16, 267 Wis. 2d 596, 671 N.W.2d 304.

¶22 Mark’s assertion that the circuit court failed to follow the procedures
set forth in WIS. STAT. § 785.04(1) rests on the premise that the court’s November
2018 decision and order imposed a “new sanction” on him that, absent a
contemporaneous finding of contempt, was not statutorily authorized. That
premise, however, is unsound. Contrary to Mark’s insistence, the court did not
create any new “obligation” when it issued its November 2018 decision. Instead,
as the court’s decision made clear, Mark’s payments for the children’s post high

6
Even if we were to ignore Mark’s forfeiture, we would conclude that his argument fails
on its merits. Although Mark attempts to cast Theresa’s appellate arguments in Gilbert I as
somehow conceding that he would not have to make personal payments for the children’s post
high school education, we agree with Theresa that she has repeatedly and consistently argued just
the opposite. That is, Theresa has argued Mark is obligated to pay $119,397 for the children’s
college expenses as they come due, regardless of which collection mechanism the circuit court
chose to effect compliance with its order.

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No. 2018AP2312

school education will not exceed $119,397.00—i.e., the value of the constructive
trust.

¶23 As such, Mark does not face any new or increased obligation,
because every payment he makes necessarily reduces the value of the constructive
trust originally imposed by the circuit court. Indeed, Mark appears to
acknowledge this very fact in his brief-in-chief, as he asserts that he has “relied on
the words of the original order of 7/6/11 in making substantial voluntary
pre-payments toward a reduction in the constructive trust on real estate.”7
Consequently, we reject Mark’s contention that the court imposed a “new
sanction” on him not authorized by WIS. STAT. § 785.04(1).

¶24 In a related argument, Mark contends that the circuit court’s
November 2018 decision and order “relied upon inaccurate dicta language”
contained in the court’s 2013 order denying Theresa’s “motion for entry of
judgment.” As indicated, the court stated in that 2013 order that as “college
expenses become due, this Court reminds [Mark] that unless covered by
scholarships or grants that do not have to be repaid, he is responsible for those
expenses, up to and including the total of $119,397, pursuant to the operation of
the constructive trust.”

¶25 The problem with Mark’s argument is that it presupposes that this
alleged “dicta” is in conflict with the circuit court’s original remedial sanction.
For reasons explained, however, we perceive none of the court’s actions following

7
In support of this statement, Mark provides a citation to an affidavit in which he avers
that he has “paid in excess of $30,000.00 for the benefit of the adult children’s post high school
education related expenses.” Whether he actually made these payments, however, has apparently
not been decided by the circuit court and is not at issue in this appeal.

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No. 2018AP2312

Gilbert I as conflicting with the language of the original sanction—which
explicitly stated the constructive trust was established “for the benefit of the
children’s post high school education.” As such, the court’s actions in 2018 were
a valid exercise of its authority to “ensure compliance with a prior order of the
court”—that is, the original sanction. See Christensen, 320 Wis. 2d 76, ¶74 n.16.
Mark’s argument therefore fails.

III. Claim and issue preclusion

¶26 Mark next argues that “issue and/or claim preclusion bars the circuit
court from re-deciding claims and issues that were previously heard and decided in
Mark’s favor, without appeal.” Under the doctrine of claim preclusion, a final
judgment is conclusive in all subsequent actions between the same parties or their
privies involving all matters litigated, and all matters that could have been
litigated, in the proceeding leading to the judgment. State v. Parrish, 2002 WI
App 263, ¶14, 258 Wis. 2d 521, 654 N.W.2d 273. Under the doctrine of issue
preclusion, a final judgment bars the relitigation of a factual or legal issue that
actually was litigated and decided in the earlier action. Id. Whether either
preclusion doctrine applies to bar an action is a legal issue we review de novo. Id.

¶27 To support his preclusion arguments, Mark relies on two decisions
the circuit court made. He asserts that in these two decisions, the court concluded
that it could not order him to make personal payments to Theresa—for the same
expenses it later did order him to pay—because the court lacked the authority to
do so. Theresa responds that in the decisions at issue, the court merely determined
that ordering Mark to make any payments would be premature, as Mark had not
failed to pay for any post high school education expenses.

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No. 2018AP2312

¶28 We agree with Theresa. In the first decision—the 2013 decision
denying Theresa’s motion for judgment—the circuit court explained it would not
order Mark to make any payments to Theresa because “[a]t this point, it appears
that the oldest child is a senior in high school and has not yet incurred any post
high school education expenses.” (Emphasis added.) In the second decision—the
court’s denial of Theresa’s 2016 motion for contempt8—the court stated that it
would not order Mark make any payments for “virtually the same reason …
because at that time [i.e., November 2016] … there was no order ordering [Mark]
to pay anything.”

¶29 These decisions clearly reflect that the circuit court’s rationale for
declining to order Mark to make any payments for the children’s post high school
education expenses was that such an order would be premature—not because the
court lacked the authority to do so. Consequently, we reject Mark’s argument that
either issue preclusion or claim preclusion bars the court’s decision.

IV. Additional arguments

¶30 We briefly address two additional arguments raised by Mark. First,
he makes a cursory argument that some of the expenses the circuit court ordered
him to pay in November 2018 were “general living expenses [i.e., food, parking
and rent] unrelated to post-high school education.” Based on this assertion, he
appears to argue that the court erroneously exercised its discretion when it

8
Mark makes much of the fact that this decision was issued in May 2018 (i.e., six
months before the November 2018 order at issue in this appeal, and three months after the
February 2018 order which required Mark to pay the itemized expenses provided by Theresa).
As the plain language of the May 2018 order shows, however, the circuit court clearly based its
denial of Theresa’s motion by looking at the state of affairs between the parties on the date it was
filed—i.e., November 11, 2016.

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No. 2018AP2312

concluded that “[Theresa] has satisfied this Court that the expenses set forth in the
69 page Exhibit #6 are post high school education expenses not covered by
scholarships or grants.” However, Mark cites no legal authority and develops no
reasoned argument explaining why the court’s conclusion was in error. As such,
we decline to address this argument further. See State v. Pettit, 171 Wis. 2d 627,
646, 492 N.W.2d 633 (Ct. App. 1992) (we need not address undeveloped
arguments).

¶31 Second, Mark argues that our supreme court’s recent decision in
Tikalsky v. Friedman, 2019 WI 56, 386 Wis. 2d 757, 928 N.W.2d 502,
reconsideration denied, 2019 WI 89, 388 Wis. 2d 656, 933 N.W.2d 32, “is
dispositive” in that it establishes that a “constructive trust on real estate (as exists
in this case) cannot float from one asset to another.”9 Theresa responds that a
“circuit court’s authority to fashion a comprehensive equitable remedy which may
include the use of a constructive trust is well established in Wisconsin law [and]
Tikalsky doesn’t change this.”

¶32 Again, we agree with Theresa’s position. The issue addressed by the
Tikalsky court was whether a constructive trust is properly characterized as a
cause of action or as a remedy. Id., ¶1. In deciding that it is a remedy, and not a
cause of action, Mark is correct that our supreme court stated that “[o]nce a
constructive trust exists, it travels with the property to which it attaches.” Id., ¶24.
Nonetheless, we are unpersuaded that this out-of-context statement is “dispositive”
of any issue in this appeal.

9
Our supreme court issued this decision after Mark and Theresa submitted their initial
briefs. Consequently, the parties addressed the decision in supplemental letter briefs.

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No. 2018AP2312

¶33 As explained above, the fundamental problem with Mark’s
argument—both in this specific context and throughout his briefing—is that he
fails to grasp the significance of the fact that the circuit court’s July 2011 order
was an exercise of the court’s contempt power. That power exists “to provide the
court with a mechanism, or toolbox, to effect compliance with court orders.”
Frisch v. Henrichs, 2007 WI 102, ¶82, 304 Wis. 2d 1, 736 N.W.2d 85.

¶34 Viewed in that light, the Tikalsky court’s explanation of the
equitable nature of a constructive trust supports the court’s use of that remedy
here: “A constructive trust is what arises when the defendant violates an
antecedent duty that will leave him unjustly enriched. … The constructive trust
exists for the purpose of providing a remedy when he fails to do so.” Tikalsky,
386 Wis. 2d 757, ¶20. For all the reasons set forth above, we conclude the mere
fact that the circuit court decided to modify its sanction when Mark refused to
make the payments for the children’s post high school education—as the court’s
original sanction order required him to do—does not provide any basis for
reversal.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

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