Catherine Wilcox v. Jerome Wilcox

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.
May 27, 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. 2019AP107 Cir. Ct. No. 2018FA119

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE MARRIAGE OF:

CATHERINE WILCOX,

PETITIONER-APPELLANT,

V.

JEROME WILCOX,

RESPONDENT-RESPONDENT.

APPEAL from a judgment and an order of the circuit court for
Douglas County: KELLY J. THIMM, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP107

¶1 PER CURIAM. Catherine Wilcox appeals from a judgment of
divorce, in which the circuit court ordered the partial reimbursement of filing fees,
and from an order denying what her notice of appeal designates as a “Motion to
Amend the Judgment.”1 We conclude the circuit court did not err by ordering the
filing fee reimbursed because Catherine agreed to pay the fee at the final divorce
hearing. Moreover, treating Catherine’s postdivorce motion as one for relief from
the judgment, we conclude the court did not erroneously exercise its discretion
when it denied that motion. We affirm.

BACKGROUND

¶2 Catherine attempted to file a petition for divorce, which was denied
because it was unaccompanied by payment of the filing fee and her petition for
waiver of fees and costs was denied. The executive director of Wisconsin
Judicare, Inc., which was representing Catherine, sent a letter to the Douglas
County Clerk of Courts questioning whether the clerk was improperly rejecting
partially completed CV-410 forms.2 Catherine filed a second petition for the
waiver of fees and costs, which was granted by a court commissioner. The order
granting the petition notified Catherine that she might be required to pay fees later
if the circuit court determined she had the ability to pay, in accordance with WIS.
STAT. § 814.29(2) (2017-18).3

1
Because the parties share a surname, we refer to the parties by their given names.
2
The CV-410A form is a standard form petition seeking waiver of fees and costs and
includes an affidavit of indigency.
3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP107

¶3 Catherine and Jerome were granted a stipulated divorce on
October 8, 2018. Jerome had waived his appearance at the final divorce hearing,
and Catherine provided testimony supporting the terms of the parties’ marital
settlement agreement. Catherine testified her monthly income was $863 and
Jerome’s monthly income was $1135. After ordering the divorce, the circuit court
noted that the $184.50 filing fee had been waived and stated it would require the
parties to reimburse that fee in equal amounts.

¶4 The circuit court inquired about the possibility of a payment plan to
reimburse the filing fee at a rate of $25 per month. Catherine represented that her
mortgage was $1000 per month, and she requested clarification about the basis for
the fee. The court explained that it was for filing the case and that her share of the
fee was $92.25, after which Catherine stated, “I’ll pay it all at once.” The court
then asked Catherine by when she could have it paid, and she responded, “Today.”
Based upon that representation, the court ordered that Catherine’s share be paid on
that date, and it ordered Jerome to pay his share at a rate of $50 per month.

¶5 After Catherine paid the fee,4 she filed a postdivorce motion seeking
modification of the divorce judgment to remove that portion requiring her to pay
the filing fee. The motion invoked WIS. STAT. § 806.07(1)(a), (1)(g) and (1)(h),
asserting that the circuit court was without authority under WIS. STAT. § 814.29 to
order repayment of the previously waived filing fee. Specifically, Catherine noted
there had been no finding in the final order that suggested Catherine had the ability

4
Wisconsin Judicare represents on appeal that it paid Catherine’s share of the filing fee
on her behalf immediately following the hearing.

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No. 2019AP107

to pay the fee, she was no longer indigent, or she was not represented by a legal
services organization. See § 814.29(1)(d), (2).

¶6 The circuit court denied the motion following a hearing. It
concluded that the matter was moot because the fee had been paid or, in the
alternative, that Catherine could be required to pay her portion of the fee because
she had represented at the hearing that she could pay it. Catherine now appeals.5

DISCUSSION

¶7 As an initial matter, we reject the circuit court’s conclusion that the
mootness doctrine applies in this instance because the filing fee had been paid. An
issue is moot when its resolution will have no practical effect on the existing
controversy. State ex rel. Olson v. Litscher, 2000 WI App 61, ¶3, 233 Wis. 2d
685, 608 N.W.2d 425. Clearly, the issue is not rendered merely academic here by
the payment of the filing fee, for if the circuit court lacked authority to order that
fee in the first instance, Catherine would be entitled to have her payment refunded.

¶8 However, we reject Catherine’s attempt to directly challenge the
reimbursement provision of the divorce judgment. Assuming her appeal as to that

5
Although Jerome is identified as the respondent to this appeal, the reimbursement
requirement Catherine challenges does not affect him and he has not filed a response brief.
Accordingly, this appeal was taken under submission only with Catherine’s brief-in-chief.

This court has also received a letter from the circuit court alerting us to the likelihood that
no party would be arguing in support of its decision. The court advised us that it did not continue
waiving the filing fee because Catherine represented at the final divorce hearing that she could
pay her share of the filing fee immediately. The court stated, “I believe that one of the best ways
to determine someone’s ability to pay is to ask them.”

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No. 2019AP107

judgment is timely,6 the record confirms that she did represent to the circuit court
that she could repay her share of the filing fee as of the date of the final hearing.
This representation was unaccompanied by any objection to reimbursement;
rather, Catherine only expressed her initial confusion about the reason for the fee.
Under these circumstances, even if the court incorrectly determined in this case
that reimbursement could be ordered under WIS. STAT. § 814.29, Catherine’s
failure to object to the imposition of the fee and her representation that she could
immediately pay her share of the filing fee preclude review. See State v.
Freymiller, 2007 WI App 6, ¶¶15-17, 298 Wis. 2d 333, 727 N.W.2d 334 (2006)
(noting that appellate courts typically decline to review issues on which the
appellant has invited error and/or waived any objection). Furthermore, Catherine
advances no argument as to why we should not apply the forfeiture doctrine here.

¶9 That leaves the issue of whether the circuit court erred by denying
Catherine’s postdivorce motion seeking to modify the divorce judgment. On
appeal, she incorrectly frames her motion as one for reconsideration. The motion,
however, specifically invoked the grounds for relief identified in WIS. STAT.
§ 806.07(1)(a), (1)(g), and (1)(h). We review a court’s decision under § 806.07(1)
for an erroneous exercise of discretion. McFarland State Bank v. Sherry, 2012
WI App 4, ¶20, 338 Wis. 2d 462, 809 N.W.2d 58 (2011).

¶10 Catherine does not address any of the prongs for relief advanced
under her motion. See WIS. STAT. § 806.07(1)(a) (pertaining to mistake,
inadvertence, surprise, or excusable neglect); (1)(g) (pertaining to the equity of the

6
We note Catherine’s appeal appears to have been filed in excess of ninety days after the
judgment was entered, the longest time period provided by statute to initiate an appeal. See WIS.
STAT. § 808.04(1).

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No. 2019AP107

judgment having prospective application); (1)(h) (authorizing reopening the
judgment for any other reason justifying relief). Rather, she merely reiterates that
the circuit court was without legal authority to require reimbursement of the filing
fee in the first instance.

¶11 Again, even if the premise of Catherine’s argument is true and the
circuit court lacked the statutory authority to require reimbursement, this fact
alone is insufficient to demonstrate an erroneous exercise of discretion in denying
her postdivorce motion. While we recognize the importance of following the
requirements in WIS. STAT. § 814.29(2), we cannot conclude the court erroneously
exercised its discretion in this case. The court was guided by Catherine’s
unqualified representation at the final hearing that she could pay the fee. Absent
any appellate argument regarding the cited bases for relief under WIS. STAT.
§ 806.07, Catherine has not met her burden, and we decline to reverse the order
under the circumstances here. We will not reverse a discretionary determination if
the record shows that discretion was in fact exercised and we can perceive a
reasonable basis for the court’s decision. Miller v. Hanover Ins. Co., 2010 WI 75,
¶30, 326 Wis. 2d 640, 785 N.W.2d 493.

By the Court.—Judgment and order affirmed.

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

6