Tatiana S. Laiter v. Michael Lyubchenko

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.
March 18, 2021
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. 2020AP730 Cir. Ct. No. 2016FA752

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

TATIANA S. LAITER,

PETITIONER-RESPONDENT,

V.

MICHAEL LYUBCHENKO,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, 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. 2020AP730

¶1 PER CURIAM. This appeal addresses various issues arising after
the May 2018 entry of a judgment of divorce that terminated the marriage of
Michael Lyubchenko and Tatiana Laiter. Lyubchenko, pro se, challenges aspects
of a February 10, 2020 order in which the circuit court, according to Lyubchenko:
(1) “erred when it failed to rule on how the parties would claim [income tax
exemptions for] dependents on 2017 and 2018 tax returns”; (2) “erred” in finding
the amount of tax refund to Laiter for tax year 2015; (3) “erred in failing to
sanction Laiter for perjury and fraud and denied Lyubchenko due process”; and
(4) erroneously exercised its discretion in determining that Lyubchenko’s motion
to supplement the record for an appeal different from this one was frivolous. In
the Discussion section below we explain Lyubchenko’s arguments and why we
reject them. Accordingly, we affirm all challenged aspects of the order.

BACKGROUND

¶2 The following background is found in an opinion resolving a prior
appeal in this case,

Lyubchenko and Laiter were married in 1998 and,
following a trial, were divorced effective August 31, 2017.
The parties had two children together, one of whom was a
minor at the time of their divorce. The circuit court entered
an order on February 5, 2018, resolving the issues of
maintenance, property division, child support, and
insurance expenses for the parties’ minor child. The order
required Lyubchenko to pay Laiter an equalization payment
of $56,063 by March 15, 2018. Lyubchenko moved for
reconsideration, and the circuit court denied his motion.
The circuit court then entered findings of fact, conclusions
of law, and a judgment of divorce on May 23, 2018.

Laiter v. Lyubchenko, No. 2018AP624, unpublished slip op. ¶2 (WI App Nov. 7,
2019); see also id., ¶¶5-16 (rejecting Lyubchenko’s arguments related to the

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circuit court’s division of property and remanding for the circuit court to exercise
its discretion on the issue of who is to pay for visitation-related travel expenses).

¶3 The circuit court held a hearing on February 5, 2020, to address
various issues raised by the parties, the results of which the court memorialized in
a February 20, 2020 order. Lyubchenko now appeals aspects of this order.

DISCUSSION

I. THE INCOME TAX DEPENDENCY EXEMPTION ISSUE

¶4 Lyubchenko purports to raise issues related to circuit court decisions
resolving which of the two, Lyubchenko or Laiter, could claim the income tax
dependency exemptions for tax years 2017 and 2018 for their two children after
the parties stopped filing joint returns. Lyubchenko contends that “the circuit
court effectively relinquished its jurisdiction” by failing to respond to
Lyubchenko’s purported request that he be allowed to claim exemptions for the
older child for 2017 and for the younger child for 2018, and that as a result this
court must “order Laiter to compensate him for” the taxes he would not have paid
if he had been allowed to claim the older child on his 2017 tax return and “issue a
ruling allowing Lyubchenko to refile his 2018 tax return to claim” the younger
child.

¶5 A circuit court’s decision addressing how to award an income tax
dependency exemption for a minor child is an aspect of child support that is
decided by the circuit court within its discretion; reversal is not appropriate unless
the circuit court erroneously exercised that discretion. See Fowler v. Fowler, 158
Wis. 2d 508, 526-27, 463 N.W.2d 370 (Ct. App. 1990). “[A] discretionary
determination must be the product of a rational mental process by which the facts

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of record and law relied upon are stated and are considered together for the
purpose of achieving a reasoned and reasonable determination.” Hartung v.
Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). We will uphold a circuit
court’s discretionary decision if the court “examined the relevant facts, applied a
proper standard of law, and, using a demonstrated rational process, reached a
conclusion that a reasonable judge could reach.” Long v. Long, 196 Wis. 2d 691,
695, 539 N.W.2d 462 (Ct. App. 1995).

¶6 Although the proper exercise of discretion contemplates that the
circuit court adequately set forth its reasoning, when it fails to do so we may
search the record to determine whether the record supports the court’s decision.
Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737. If the
facts support the court’s exercise of discretion, we will uphold the decision.
Franke v. Franke, 2004 WI 8, ¶55, 268 Wis. 2d 360, 674 N.W.2d 832.

¶7 We reject Lyubchenko’s argument on two alternative grounds, either
of which would be sufficient for affirmance. First, Lyubchenko requests relief to
which he is not entitled based on his own premise that the circuit court failed to
address the two exemption issues that he raises on appeal. It is unclear what
Lyubchenko means by arguing that the circuit court “relinquished its jurisdiction.”
But in any case, if as Lyubchenko contends the circuit court failed to address the
issues he raises, then the proper remedy would be for this court to remand to the
circuit court for it to exercise its discretion in the first place, and he does not seek
this remedy. See, e.g., Schroeder v. Schroeder, 100 Wis. 2d 625, 639, 302
N.W.2d 475 (1981) (in the absence of adequate findings and determinations to
support civil contempt in divorce case, remanding for circuit court to make
appropriate determinations). It is for the circuit court in the first instance to

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exercise its discretion to address issues of this type that have been properly raised,
not for this court to take them up for the first time.

¶8 Second, Lyubchenko fails to show that the circuit court erroneously
exercised its discretion in addressing all tax exemption issues that he clearly and
consistently presented to the court. Our conclusion on this point rests in part on
Lyubchenko’s failure to present a clear and consistent request to the circuit court
on the topics he now raises. We now provide pertinent background and explain
our conclusion further.

¶9 After the circuit court issued the February 5, 2018 order resolving
major post-judgment issues referenced above, Lyubchenko submitted a March 19,
2018 pleading. In this pleading, Lyubchenko requested in pertinent part that the
court allow him to claim the dependency tax deduction for his older child for the
tax year 2017, while allowing Laiter to claim the deduction for the younger child
for tax year 2017. Going forward, Lyubchenko proposed, Laiter could claim the
deduction for the older child until she reached majority and the parties would
alternate claiming the younger child (i.e., Lyubchenko-2018, Laiter-2019,
Lyubchenko-2020, etc.).

¶10 After this, on June 18, 2019, Lyubchenko appended what he now
calls an “additional request” to a motion for reconsideration of a June 13, 2019
order addressing an unrelated contempt issue. In this “additional request,”
Lyubchenko again asked the court to allow him to claim the younger child “on all
his even year tax returns, starting with 2018 until she reaches the age of majority
(2018, 2020, 2022, 2024).” This time, however, he also made an alternative
request:

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In 2017 [Laiter] claimed both children on her tax
return without asking [Lyubchenko]. Since [Lyubchenko]
paid child support for both children, paid for their insurance
and medical and part of college expenses, he asks the Court
to allow him to refile his 2017 tax returns claiming his
elder daughter … similar to how he was allowed to do in
2016. Alternatively, [Lyubchenko] will accept an
equalizing payment from [Laiter] for the difference
between his with and without dependent tax refunds
(approximately $1,000). [Lyubchenko] has already
provided [Laiter] with his 2017 tax return.

¶11 More than six months after making the “additional request,” on
January 6, 2020, Lyubchenko submitted a letter to the circuit court seeking various
forms of relief. This letter presented a scheme to address the dependency
deduction issue that varied somewhat from the prior ones. He still sought the
deduction for the older child for 2017, but then stated:

[Lyubchenko] believes it is only fair that he is allowed to
claim his younger daughter … and associated child tax
credit on his tax return in 2019, 2020, 2022 and 2024, with
[Laiter] claiming [the younger daughter] on her 2017, 2018,
2021, 2023, 2025 tax returns.

Thus, under the new proposed scheme, the court would award Lyubchenko the
deduction for the older child for 2017 (as he had previously requested), but he now
asked to be awarded the deduction for the younger child for 2019, but not for 2018
(contrary to his prior positions). Further, this formulation did not refer to the
concept of an “equalizing payment,” nor did it incorporate by reference any
argument previously presented to the court or attempt to clarify the discrepancies.

¶12 Then, compounding the potential for confusion, at the February 2020
hearing, Lyubchenko failed to make a request regarding the exemption for the
older child and omitted the prior request for the exemption for the younger child
for the tax year 2018. The following is all of the pertinent discussion from the

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hearing, with italics now added to emphasize the pertinent request that
Lyubchenko made at the hearing:

MR. LYUBCHENKO: I also made the request at phone
conference about tax exemption. I believe the issue was
brought to your attention at the same time as the travel in
March, and it still remains unruled on. And the final order
that was issued in May of 2018 does not have any
provision—doesn’t say any way which—who’s supposed
to claim—so in other words, [Laiter] can’t claim because
there’s no order saying that I’m allowed to—

….

… [T]he Court never addressed the issue of tax
consequences as [Laiter] continues to claim both children.

So I would ask the Court to allow me to claim [the
younger child] for 2019, ’20, ’22 and ’24.

[Laiter] claimed [the younger child] in 2017 and
2018.

THE COURT: And you’re asking for what? ’19—

MR. LYUBCHENKO: ’19, ’20, ’22 and ’24, and [Laiter]
can claim her in—she already claimed her in ’17, ’18. She
will claim her in ’21, ’23, and ’25.

[COUNSEL FOR LAITER]: You can decide, Your Honor,
whether this issue is before you or not. He is totally wrong.
The custodial parent has the right to claim the child. I have
the tax code. [Laiter] had every right to claim the child
and—

MR. LYUBCHENKO: — I’m not saying that—

THE COURT: —Stop. Don’t talk while [Laiter’s counsel
is] talking.

[COUNSEL FOR LAITER]: We are requesting that my
client be allowed to claim the child. He is wrong. I have
my client’s tax returns here.

The older child has aged out and is not claimed on
your taxes; is that correct?

MS. LAITER: Um ... [inaudible.]

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[COUNSEL FOR LAITER]: There’s only one minor child.
And we are asking that Ms. Laiter be able to continue to
claim her.

THE COURT: But … it’s fairly typical that parties
alternate if child support is current, that they alternate a tax
exemption.

[COUNSEL FOR LAITER]: This has been an atypical
case, Your Honor and—

THE COURT: I … do understand that, I do understand
that—

[COUNSEL FOR LAITER]: —there has been a lot of
litigation going on, and I know this is the issue in front of
you today, but certainly, he shouldn’t claim ’19.

THE COURT: So—so even years?

[COUNSEL FOR LAITER]: If that’s your ruling.

THE COURT: Michael, I’ll give you even years.

MR. LYUBCHENKO: Well—

THE COURT: No. That’s my—no. Don’t argue with me,
or you know what? We can go back to her claiming—you
know, don’t argue yourself out of something that you just
got here.

MR. LYUBCHENKO: So then I only get ...

THE COURT: You get ’20, ’22 and ’24.

MR. LYUBCHENKO: Okay.

THE COURT: All right. Now let’s move on to [a different
issue].

¶13 This passage appears to reflect Lyubchenko conceding that Laiter
could claim the exemption for the younger child for tax years 2017 and 2018. In
any case, it shows that at no point during this critical point in his advocacy on this
issue did Lyubchenko request the relief that he now seeks, namely, permission to
claim the exemption for the older child for 2017 and for the younger child for

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2018 tax years. Further, it is significant that the concept of an equalizing payment
is also missing from his arguments here. This was yet one more unexplained
shifting element in the relief requested. Thus, at a minimum, at the hearing
Lyubchenko allowed the court to treat the exemptions for the 2017 and 2018 tax
years as a settled matter in favor of Laiter, with no suggestion of the need for an
equalizing payment. As a result, at this hearing the court could fairly treat the
arguments of Lyubchenko and opposing counsel as if the court was being asked to
decide, going forward, whether to award the tax years 2019, 2020, 2022, and 2024
to Lyubchenko (his request) or all years to Laiter (her request). The court settled
on a compromise going forward, which the court noted is a conventional approach,
of awarding alternating years to the parties, as long as Lyubchenko is
“substantially current” on child support obligations.

¶14 On February 20, 2020, Lyubchenko filed a motion to reconsider.
This motion harkened back to the March 19, 2018 pleading in which, as
summarized above, Lyubchenko had requested permission to claim the deduction
for the younger child for all even years starting with tax year 2018. In the
reconsideration motion, Lyubchenko argued that the court at the February 2020
hearing had failed to address any tax years other than 2020-2024, and “[a]s such,
the tax years 2017 and 2018 are still not ruled on,” and on this basis he asked the
court “to update the February 10, 2020 order specifically allowing him to refile his
2017 and 2018 taxes claiming his [older child] in 20l7, and his [younger child] in
2018.” The reconsideration motion made no reference to the “relinquished
jurisdiction” concept that he now raises on appeal. It also did not attempt to
explain why Lyubchenko had failed to present these arguments at the hearing.
The court denied the reconsideration motion in a summary fashion without
holding a hearing.

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¶15 On this record, we conclude that the court properly exercised its
discretion in (1) treating the exemptions for the tax years before 2020 as settled in
favor of Laiter when they were claimed by her, and (2) awarding alternating years
to each party going forward. The court made clear that it gave serious
consideration to awarding no years going forward to Lyubchenko, based on what
Laiter’s counsel referred to as the “atypical” nature of the litigation to date.

¶16 Regarding this “atypical case” topic, Laiter points out that the same
circuit court judge who made the challenged decisions had presided over this case
since 2016, and further suggests that the court had a reasonable basis to award all
of the exemptions to Laiter (as she requested at the hearing) because the court was
aware of the following “atypical” conduct: “Mr. Lyubchenko’s contemptuous
actions … his repeated frivolous filings, and the substantial amount of attorney
fees that Ms. Laiter has [incurred] as a result of having to defend against Mr.
Lyubchenko’s overlitigation.” In his reply brief, Lyubchenko does not deny those
characterizations. He merely asserts that, regardless of the nature of litigation
conduct, it must be “irrelevant,” but without developing an argument that the court
could not rely on this history in exercising its broad discretion on these issues.

¶17 As for his motion for reconsideration, Lyubchenko fails to provide
authority for the proposition that on this record the circuit court, having resolved
the issues at the hearing based on the specific arguments presented, was obligated
to prolong this long-litigated divorce case yet further to revisit these issues.

¶18 Lyubchenko may mean to argue that he is entitled to some form of
relief because the circuit court should have made determinations on these issues
more promptly. If so, he fails to develop an argument supported by authority that
the court was obligated to act in any particular manner at any particular time

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before it made its pertinent rulings. Lyubchenko references rules of our supreme
court that require judges to “dispose of all judicial matters promptly and
efficiently” and to avoid unnecessary delay, but he fails to show how the circuit
court here violated these rules, particularly given the many requests and
overlapping issues with which the court was presented in this heavily litigated
case. See SCR 60.04(1)(h), (1)(hm). Further, Lyubchenko does not take the
minimal first step of identifying a consistent argument that he presented to the
circuit court and that aligns with his current position.1 A party cannot complain
that circuit court delay on an issue caused the party to be deprived of a specific
form of relief on the issue when the party did not clearly and consistently pursue
that specific form of relief in the circuit court.

¶19 Using provocative language, Lyubchenko alleges that the circuit
court deliberately delayed its rulings in order to “essentially harass[]” him “into
abandoning” arguments. Such baseless, ad hominem attacks only serve to
highlight the absence of developed, supported arguments.

II. AMOUNT OF TAX REFUND

¶20 Lyubchenko argues that the circuit court improperly credited
testimony by an accountant that Laiter received a particular amount of tax refund
money for the 2015 tax year and not the greater amount that Lyubchenko contends
she received. We conclude that he merely raises questions on this topic and fails

1
We recognize that almost two years passed between March 2018, when Lyubchenko
apparently first raised the exemptions issue, and February 2020, when the court made its
challenged rulings. In itself, the passing of tax years and the filing of returns in the meantime
might reasonably have called for Lyubchenko to adjust his requests to the circuit court in some
ways. However, in the circuit court he did not adjust his requests in a manner that he clearly
attributed to changed circumstances given the passage of time.

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to show that the great weight and clear preponderance of the evidence undermines
the circuit court’s finding based on the accountant’s testimony.

¶21 We review the circuit court’s findings of fact for clear error. Sellers
v. Sellers, 201 Wis. 2d 578, 586, 549 N.W.2d 481 (Ct. App. 1996); WIS. STAT.
§ 805.17(2) (2019-20).2 “Under this standard, even though the evidence would
permit a contrary finding, findings of fact will be affirmed on appeal as long as the
evidence would permit a reasonable person to make the finding,” and reversal is
appropriate only when “the evidence supporting a contrary finding” “constitute[s]
the great weight and clear preponderance of the evidence.” Id.

¶22 At the same February 5, 2020 hearing referenced above, an
accountant for Laiter, referencing documentary evidence and relating interactions
she had with Internal Revenue Service employees, testified that Laiter received a
refund of $2,083.33. In contrast, relying on an IRS “account transcript,”
Lyubchenko argues that Laiter received two refunds totaling $8,742.18. The
circuit court credited the accountant’s testimony.

¶23 One thrust of Lyubchenko’s argument is that the circuit court did not
allow him to present argument or “submit any evidence.” It is true that the court
limited Lyubchenko’s presentation during the course of the hearing, expressing
both a strong interest in resolving the case expeditiously and frustration with
Lyubchenko’s conduct in the litigation.3 But he fails to persuade us that it could

2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
More specifically, the circuit court expressed frustration with a pattern in the case of
Lyubchenko, “time after time,” making allegations on tax-related issues without the benefit of
training in the area or support from any expert, in contrast to Laiter, who relied on the same
accountant for various issues. As the court noted at the hearing that, referring to Laiter’s
(continued)

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have made a difference in his favor if the court had allowed him more time to
present evidence or argument at this hearing. Lyubchenko is wrong in insisting
that the circuit court could not consider the accountant’s testimony to shed light on
the meaning of particular numbers reflected on an IRS “accounting transcript.”

¶24 What remains on this issue appear to be only Lyubchenko’s indirect
suggestions that some aspects of the accountant’s testimony may have been
inadmissible. But he fails to develop any such specific argument based on
pertinent legal authority.4

¶25 As with his separate argument addressed above, he again lobs
unsupported ad hominem attacks on the circuit court. This serves him no better on
this issue.

III. “FAILING TO SANCTION”; “DUE PROCESS”

¶26 Lyubchenko presents a jumble of underdeveloped or undeveloped
allegations and arguments purporting to describe deception by Laiter, unfairness
and bias by the circuit court, and perjury and bias by Laiter’s accountant. He
argues that as a result he is entitled to “incurred losses” of $1,321 and, as a
“sanction,” $6,408.96 from Laiter. We put to the side yet more unsupported ad
hominem attacks on the circuit court and also numerous attempts at emotive

accountant, “We have one accountant in the [court]room who consistently has testified
throughout these hearings.” These comments conveyed the view that, in the absence of definitive
information or expertise to point to, Lyubchenko failed to present admissible evidence on these
issues and failed to cross examine Laiter’s accountant based on reliable premises or information.
4
Further, the circuit court noted at the hearing that Lyubchenko did not object to the
admissibility of the accountant’s testimony until after she had already testified, which came too
late.

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assertions that do not constitute legal arguments (e.g., “From the very beginning
Laiter embarked on the path of lying and misrepresentation.”). For the most part
what remains consists of allegations and arguments involving the two issues we
have already resolved against him. Further, as to those issues, as well as any
others he touches on, we agree with Laiter that this section of Lyubchenko’s brief
amounts to a series of requests that this court improperly make its own credibility
determinations, reweigh the evidence, and issue our “own findings of fact different
from those appropriately made by the circuit court.” We reject all of these
arguments for these reasons.

IV. ATTORNEY FEES FOR FRIVOLOUS MOTION

¶27 At the February 5, 2020 hearing, the circuit court granted Laiter’s
motion for attorney fees to compensate her for having to respond to what the court
characterized as a frivolous motion by Lyubchenko to “supplement the record” for
purposes of a separate appeal from this one filed by Lyubchenko in this case.
Lyubchenko does not argue that the court was without authority to order a
sanction if his motion was frivolous. See Wenzel v. Wenzel, 2017 WI App 75,
¶¶29-30, 378 Wis. 2d 670, 904 N.W.2d 384 (noting that a party in a family law
action may seek sanctions by motion under WIS. STAT. § 802.05(2) and (3)). Nor
does he argue that $500 was an unreasonable amount to impose as a sanction. See
Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 575-79, 597 N.W.2d 744 (1999)
(“[I]n determining the appropriate amount of fees and expenses, a court should
‘reflect upon equitable considerations in determining the amount of the sanction.’”
(quoted source omitted)). Instead, Lyubchenko argues that his motion “cannot be
frivolous,” and therefore this order must be reversed. We disagree.

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¶28 We defer to factual aspects of sanctions determinations, and as to
those determinations, “[a] circuit court’s discretionary decision will be sustained if
it examined the relevant facts, applied a proper standard of law and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could
reach.” Id. at 548-49. However, the issue of whether arguments were warranted
by existing law or a good faith argument for a change in the law presents a legal
question to be reviewed de novo. State ex rel. Robinson v. Town of Bristol, 2003
WI App 97, ¶29, 264 Wis. 2d 318, 667 N.W.2d 14.

¶29 Additional background on this issue is necessary. At a hearing on
May 29, 2019, the circuit court granted Laiter’s motion to find Lyubchenko in
contempt for failure to comply with the court’s February 5, 2018 order requiring
him to amend his 2015 income tax filing and file a joint 2015 tax return with
Laiter. On September 18, 2019, Lyubchenko filed a notice of appeal from the
contempt finding, in an appeal assigned appellate case No. 2019AP1793 (“appeal
2019AP1793”).

¶30 On December 13, 2019, Lyubchenko, pro se, submitted to the circuit
court a filing that he styled as a “Motion To Supplement Record On Appeal And
Other Relief” (“the motion to supplement”). As pertinent to the issues here,
Lyubchenko stated in the motion that his goal was to have the circuit court order
that the record be supplemented, for purposes of appeal 2019AP1793, with several
documents attached to the motion along with “any further documents received
from the IRS or” Laiter. Lyubchenko specifically purported to attach “two IRS
Notices both dated November 4, 2019,” which Lyubchenko alleged he had
received from Laiter on November 26, 2019. All such documents, he contended,
would help him prevail in appeal 2019AP1793 by showing that, in connection
with 2015 tax returns, Laiter “concealed and failed to disclose” facts regarding her

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filing of a return and tax refunds she received. Lyubchenko argued that, because
Laiter had “concealed” from him and the court that she had filed an amended
return for tax year 2015, “all of these documents should be added to the record to
be used on appeal.”

¶31 On February 3, 2020, counsel for Laiter filed a six-page response to
the motion to supplement, addressing in part the specific requests to supplement
the record. Counsel explained that Laiter would be requesting attorney fees based
on the need to respond to “this frivolous and meritless motion.”

¶32 The circuit court noted at the February 5, 2020 hearing that this court
had directed the circuit court to address Lyubchenko’s motion to supplement the
record in appeal 2019AP1793, so that the issue could be resolved for purposes of
the appeal. The circuit court asked Lyubchenko whether he was seeking to
supplement the record for appeal 2019AP1793 with documents that had not been
submitted to the circuit court before it made the contempt finding at issue in
appeal 2019AP1793, indeed whether some of these documents did not even exist
at the time of the finding. Lyubchenko acknowledged that this was true. The
court concluded that there was “simply no basis for me and no legal authority for
me to grant your request to supplement the record with those documents,” because
the record in appeal 2019AP1793 “cannot be supplemented with facts that weren’t
in the record at the time” that the circuit court made the contempt ruling
challenged by Lyubchenko in his appeal. The court directed that this court be
informed that Lyubchenko’s motion to supplement the record in appeal
2019AP1793 was denied.

¶33 The circuit court deemed it frivolous for Lyubchenko to “file a
motion asking to supplement the record with documents” that were not in the

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record before the circuit court at the time of the circuit court decision challenged
in that appeal. The court suggested that its finding of frivolousness on this tax-
related issue was also supported by the court’s view that Lyubchenko had
consistently taken uninformed positions in the case on tax-related issues, positions
not based on valid authority—in other words, the frivolous motion was part of a
pattern of Lyubchenko failing to pursue good faith arguments in this area and
litigating recklessly. The court’s comments as a whole can be reasonably
interpreted as a determination, based on undisputed facts, that Lyubchenko filed
the motion to supplement without any reasonable basis in law or equity and that it
could not be supported by a good faith argument for an extension, modification, or
reversal of existing law.

¶34 We conclude that, as to pertinent factual aspects of the court’s
determinations, the court “examined the relevant facts, applied a proper standard
of law and, using a demonstrated rational process, reached a conclusion that a
reasonable judge could reach,” see Jandrt, 227 Wis. 2d at 548-49, and that, on our
independent review, Lyubchenko’s motion to supplement was not warranted by
existing law or a good faith argument for a change in the law, see Robinson, 264
Wis. 2d 318, ¶29. The parties could not present arguments to this court in appeal
2019AP1793 regarding the contempt issue based on documents that were not
before the circuit court at the time of the challenged court ruling, and therefore the
motion to supplement merely wasted the time of opposing counsel and the circuit
court. See State ex rel. Wolf v. Town of Lisbon, 75 Wis. 2d 152, 155-56, 248
N.W.2d 450 (1977) (appellate review is limited to the pertinent record before the
circuit court).

¶35 It is true that it is not necessarily frivolous for a party to pursue a
motion to properly enlarge the record on appeal to ensure that the record is

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complete. See id. (“[T]he record is not to be enlarged by material which neither
the trial court nor this court, acting within their respective jurisdictions, have
ordered incorporated in it.”). However, Lyubchenko was not seeking to add
material for the sake of completeness. Instead, the theory of his motion to
supplement was the following. If the documents were added to the record in
appeal 2019AP1793, this would create a basis for him to make new arguments to
this court about whether contempt was appropriate based on documents that were
not before the circuit court when it made its contempt determination.

¶36 Lyubchenko points to no controlling legal authority for the
proposition that he may make new arguments on appeal that were not raised in the
circuit court, based on new material that was not presented to the circuit court. In
addition, his arguments on this issue are also either difficult to understand, based
on non-controlling authority from other jurisdictions, or off point. We reject as
undeveloped any argument that we do not now address.

¶37 Lyubchenko poses a hypothetical. Suppose that, as soon as
Lyubchenko filed the motion to supplement, the circuit court had on its own
identified the motion as meritless. In that case, Lyubchenko suggests, there would
have been no need for work by Laiter’s counsel and no need for a hearing on this
issue. That is not what happened, the court was not obligated to do this, and
naturally the court was free to allow Laiter to respond to the motion.

¶38 Lyubchenko repeatedly refers to the IRS as a generally “reliable” or
“trustworthy” source of information and makes references to the concept that the
documents he sought to add to the record were subject to judicial notice that the
circuit court could have taken, and perhaps this court now could take, under WIS.
STAT. § 902.01(2). We are not clear how the judicial notice rule is supposed to

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No. 2020AP730

apply to bolster any argument that Lyubchenko now makes that the court should
not have determined that the motion to supplement was frivolous. In any case, it
is sufficient to reject whatever argument Lyubchenko intends to make along these
lines that he fails to account for the points that courts cannot take judicial notice of
a fact that is subject to “reasonable dispute,” and that the parties here sharply
disputed the meaning of the IRS documents. See § 902.01(2). After Laiter notes
these points as directly undermining his argument, Lyubchenko fails to provide a
satisfactory reply. He falls back on the apparent position that a court must take at
face value any statement or numeral appearing on any IRS document, which is not
true, and again fails to recognize that the circuit court could credit the testimony of
Laiter’s accountant.

¶39 More broadly, the circuit court did not deny the motion to
supplement based on concepts of authentication or admissibility but instead on a
complete lack of relevance to the subject matter of appeal 2019AP1793, which is
whether the circuit court properly decided the contempt issue based on the record
that was then before it. Lyubchenko states that he “never intended to use these
documents for anything else but informational purposes,” but fails to explain what
he means by “informational purposes.” The motion to supplement made no such
point and the obvious purpose of the motion to allow him to use of these
documents to advance arguments that the court improperly decided the contempt
issue.

¶40 Lyubchenko argues that the circuit court improperly cut him off
from being able to speak to the frivolousness issue and suggests that this alone
may merit reversal. It is true that the court stated that it would address the
frivolousness and related sanctions issues in an abrupt manner, and prevented
Lyubchenko from explicitly addressing frivolousness as a topic as the court began

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to address it. In this way, Lyubchenko is correct that the court did not allow him
an opportunity to address the specific topic of frivolousness before ruling.
However, we are not persuaded that we must reverse on this ground.

¶41 First, Lyubchenko was on ample notice from the February 3, 2020
letter from counsel for Laiter that counsel contended that the motion to supplement
was frivolous and would be seeking reasonable attorney fees. He did not reply to
the letter in writing and at the hearing he did not ask the circuit court for an
opportunity to address the topic of frivolousness until the court had already begun
giving its ruling. Second, toward the start of the hearing the court gave
Lyubchenko a full opportunity to engage with the court on the merits of the
motion to supplement, which is a substantial aspect of the frivolousness issue,
before the court explained its decision on the merits. Third, Lyubchenko does not
now explain, in this context, what evidence the court prevented him from
presenting or referencing, or what argument he was prevented from making, that
could have made a difference on these issues. We also note that Lyubchenko’s
motion to reconsider filed on February 20, 2020, did not suggest that the court had
failed to give him a sufficient opportunity to address the frivolousness issue.5

5
Laiter moves for costs and attorney fees against Lyubchenko under WIS. STAT.
§ 809.25(3)(c) because, she asserts, this appeal is frivolous. We may impose attorney fees under
§ 809.25(3)(c) only if the entire appeal is frivolous. State ex rel. Robinson v. Town of Bristol,
2003 WI App 97, ¶54, 264 Wis. 2d 318, 667 N.W.2d 14. Although we have decided against
Lyubchenko on all of the issues he raises and we consider some of his arguments on appeal to be
frivolous, we cannot say that his arguments are wholly frivolous. Accordingly, we deny the
motion. Laiter cites Zhang v. Yu, 2001 WI App 267, 248 Wis. 2d 913, 637 N.W.2d 754, for the
proposition that we could order costs and attorney fees based on a subset of frivolous arguments,
but Zhang affirmed a circuit court determination of “overtrial,” not an appellate court
determination that an appeal was not wholly frivolous. See id., ¶¶9-10, 16.

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No. 2020AP730

CONCLUSION

¶42 For all these reasons, we affirm the challenged aspects of the court’s
February 10, 2020 order.

By the Court.—Order affirmed.

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

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