v. Ryan Milbeck

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.
October 11, 2022
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. 2021AP2115 Cir. Ct. No. 2020CV367

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

PETITIONER,

PETITIONER-RESPONDENT,

V.

RYAN MILBECK,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Marathon County:
LAMONT K. JACOBSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Ryan Milbeck, pro se, appeals from an order
granting the Petitioner a domestic abuse injunction. Milbeck contends that the
No. 2021AP2115

circuit court erred by granting a four-year injunction after concluding that the
Petitioner had not established grounds for a ten-year injunction. Milbeck also
asserts that WIS. STAT. § 813.12(4m) (2019-20)1—which requires a respondent to
surrender his or her firearms when a domestic abuse injunction is issued but
provides an exemption for peace officers—is unconstitutional. We reject
Milbeck’s arguments and affirm.

BACKGROUND

¶2 Milbeck and the Petitioner are married and share one minor child.
They are currently in the process of a divorce. In July 2020, the Petitioner filed a
petition for a temporary restraining order and domestic abuse injunction against
Milbeck. The petition asked the circuit court to order a four-year domestic abuse
injunction. In addition, the petition sought an injunction of “not more than
10 years” if the court found “a substantial risk the respondent may commit 1 st or
2nd degree intentional homicide, or 1st, 2nd or 3rd degree sexual assault against the
petitioner.”

¶3 The circuit court entered a temporary restraining order and
scheduled an injunction hearing before a court commissioner. Following that
hearing, the court commissioner granted the Petitioner a ten-year domestic abuse
injunction against Milbeck. The injunction prohibited Milbeck from possessing
firearms until the injunction expired and required him to surrender any firearms
that he owned or possessed to the Marathon County sheriff.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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¶4 Milbeck sought de novo review of the court commissioner’s
decision. Following a de novo hearing, and after considering briefs submitted by
the parties, the circuit court entered a domestic abuse injunction against Milbeck.
During its oral ruling, the court explained that there were reasonable grounds to
believe that Milbeck had engaged in domestic abuse of the Petitioner, as required
for the issuance of a domestic abuse injunction. See WIS. STAT. § 813.12(4)(a)3.
The court concluded, however, that the Petitioner had failed to establish a
substantial risk that Milbeck would commit first- or second-degree intentional
homicide or sexual assault against her, as required for the issuance of a ten-year
injunction under § 813.12(4)(d)1. The court therefore ordered that the domestic
abuse injunction would remain in place for four years, pursuant to § 813.12(4)(c)1.
The injunction prohibited Milbeck from possessing firearms until the injunction
expired. Milbeck now appeals.

DISCUSSION

¶5 Milbeck first argues that after the circuit court concluded the
Petitioner was not entitled to a ten-year domestic abuse injunction, the court
lacked the authority to grant an injunction for a shorter time period and was
instead required to dismiss the case with prejudice. In support of this argument,
Milbeck relies on Hayen v. Hayen, 2000 WI App 29, 232 Wis. 2d 447, 606
N.W.2d 606 (1999).

¶6 In Hayen, we interpreted the 1997-98 version of WIS. STAT.
§ 813.12, which provided, in relevant part: “An injunction under this subsection is
effective according to its terms, for the period of time that the petitioner requests,
but not more than 2 years.” See § 813.12(4)(c)1. (1997-98); see also Hayen, 232
Wis. 2d 447, ¶2 n.1, ¶¶7-8. Based on the statute’s plain language, we concluded

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that “once a circuit court determines that it will issue a domestic abuse injunction,
the court is required to issue the injunction for the length of time the petitioner
requests.” Hayen, 232 Wis. 2d 447, ¶8 (footnote omitted). Because the petitioner
in Hayen had requested a two-year injunction, we held that the circuit court erred
by granting a six-month injunction, as “the circuit court was required under the
statute to grant relief for two years or not at all.” Id.

¶7 Analogizing this case to Hayen, Milbeck argues that because the
Petitioner requested a ten-year domestic abuse injunction, the circuit court was
required to grant either a ten-year injunction or no injunction at all. What Milbeck
fails to recognize, however, is that WIS. STAT. § 813.12 has been amended since
Hayen was decided. As noted above, the version of the statute that the Hayen
court interpreted permitted a court to grant a domestic abuse injunction “for the
period of time that the petitioner requests, but not more than 2 years.” See WIS.
STAT. § 813.12(4)(c)1. (1997-98). In contrast, the present version of
§ 813.12(4)(c)1. states that a domestic abuse injunction is effective “for the period
of time that the petitioner requests, but not more than 4 years, except as provided
in par. (d).” (Emphasis added.) Paragraph (d), in turn, states that upon issuing a
domestic abuse injunction, a court “may … order that the injunction is in effect for
not more than 10 years, if the court finds, by a preponderance of the evidence,”
that there is a substantial risk that the respondent may commit first- or
second-degree intentional homicide or certain kinds of sexual assault against the
petitioner. See § 813.12(4)(d)1.

¶8 Thus, the current version of WIS. STAT. § 813.12 requires a court to
engage in a two-step process when ruling on a petition for a domestic abuse
injunction. First, if the court finds reasonable grounds to believe that the
respondent has engaged in, or may engage in, domestic abuse of the petitioner, see

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§ 813.12(4)(a)3., then the court must grant a domestic abuse injunction for the
time period requested by the petitioner, but not for more than four years, see
§ 813.12(4)(c)1. Second, if the petitioner has requested a ten-year injunction
under § 813.12(4)(d)1., then the court must consider whether the petitioner has
met his or her burden under that statute. If so, the court “may” order that the
injunction “is in effect for not more than 10 years.” Sec. 813.12(4)(d)1. Contrary
to Milbeck’s argument, nothing in § 813.12 requires a court to dismiss a petition
for a domestic abuse injunction outright if the court finds that the petitioner did not
meet his or her burden for a ten-year injunction under § 813.12(4)(d)1., even
though the petitioner established grounds for a four-year injunction under
§ 813.12(4)(c)1.

¶9 In this case, the circuit court properly employed the two-step
analysis required by WIS. STAT. § 813.12. The court first determined that the
Petitioner was entitled to a domestic abuse injunction because there were
reasonable grounds to believe that Milbeck had engaged in domestic abuse of the
Petitioner. See § 813.12(4)(a)3. The Petitioner was therefore entitled to a
four-year domestic abuse injunction under § 813.12(4)(c)1., as she had requested
in her petition. The court then determined that the Petitioner was not entitled to a
longer, ten-year injunction under § 813.12(4)(d)1. because she had failed to meet
her heightened burden under that statute. Under these circumstances, the court
appropriately granted the Petitioner a four-year domestic abuse injunction.

¶10 Milbeck also argues that WIS. STAT. § 813.12(4m) is
unconstitutional. In general, subsec. (4m) provides that when a domestic abuse
injunction is issued, the injunction shall “require in writing the respondent to
surrender any firearms that he or she owns or has in his or her possession.”
Sec. 813.12(4m)(a)2. If the respondent is a peace officer, however, the injunction

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No. 2021AP2115

“may not require the respondent to surrender a firearm that he or she is required,
as a condition of employment, to possess whether or not he or she is on duty.”
Sec. 813.12(4m)(ag). Milbeck contends that by allowing peace officers, but not
other individuals, to retain their firearms, § 813.12(4m) “blatantly denies all
citizens equal protection[] of the law.”

¶11 We decline to address Milbeck’s constitutional argument because he
failed to raise it in the circuit court. Arguments raised for the first time on appeal
are generally deemed forfeited. Tatera v. FMC Corp., 2010 WI 90, ¶19 n.16, 328
Wis. 2d 320, 786 N.W.2d 810. Accordingly, we need not address an argument
that is raised for the first time on appeal. ABKA Ltd. P’ship v. Board of Rev., 231
Wis. 2d 328, 349 n.9, 603 N.W.2d 217 (1999). In this case, by failing to raise his
equal protection argument in the circuit court, Milbeck deprived the parties of the
opportunity to develop a sufficient factual record for this court to meaningfully
address Milbeck’s constitutional claim.

¶12 Having considered and rejected the arguments raised in Milbeck’s
brief-in-chief, we briefly acknowledge two additional arguments raised in his
reply brief. First, Milbeck’s reply brief takes issue with a statement in the
Petitioner’s response brief that the circuit court “cited corroboration of the
Petitioner’s testimony by the Respondent.” Milbeck contends that the evidence
does not support a determination that his testimony corroborated the Petitioner’s
testimony. Whether Milbeck’s testimony corroborated the Petitioner’s testimony
is not, however, material to our resolution of the issues raised in this appeal. To
the extent Milbeck intends to argue in his reply brief that the evidence was
insufficient to support the issuance of a domestic abuse injunction, we note that
Milbeck did not raise a sufficiency-of-the-evidence argument in his brief-in-chief.
We need not address arguments that are raised for the first time in a reply brief,

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No. 2021AP2115

see A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285
(Ct. App. 1998), and we decline to do so here.

¶13 Second, Milbeck asserts in his reply brief that this court should
sanction the Petitioner’s attorney for violating WIS. STAT. RULE 809.19(1)(d) and
various Supreme Court Rules. WISCONSIN STAT. RULE 809.83(2) permits us to
impose sanctions based upon a person’s failure to comply with a court order or
with the Rules of Appellate Procedure. RULE 809.83(2) does not, however, allow
us to impose sanctions based upon a person’s violation of a Supreme Court Rule,
and Milbeck cites no other legal authority that would permit us to do so.

¶14 As for Milbeck’s assertion that the Petitioner’s attorney violated
WIS. STAT. RULE 809.19(1)(d) by including “irrelevant” and “false” facts in the
Petitioner’s statement of facts, this argument fails because it is largely
undeveloped. See Industrial Risk Insurers v. American Eng’g Testing, Inc.,
2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (“[W]e will not abandon
our neutrality to develop arguments[.]”). Milbeck has not identified with
specificity any “irrelevant” facts that he believes were improperly included in the
Petitioner’s statement of facts. And while Milbeck cites a single factual assertion
in the Petitioner’s brief that he claims is “inherently false,” our review of the

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record does not support that claim.2 In any event, Milbeck does not explain why a
single false factual assertion in a party’s brief would warrant the imposition of
sanctions or the initiation of a “full investigation” into the party’s attorney. We
therefore deny Milbeck’s request for sanctions.

By the Court.—Order affirmed.

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

2
Milbeck asserts that the following statement from the Petitioner’s brief is inherently
false: “The Petitioner testified that the Respondent had started having sexual intercourse with her
on multiple occasions in July of 2018.” Milbeck contends that this statement is false because the
Petitioner conceded during her testimony that no intercourse occurred during July 2018. Be that
as it may, the Petitioner specifically testified regarding an incident in July 2018, shortly after the
birth of the parties’ child, when Milbeck repeatedly attempted to “initiate intercourse” with her
and did not stop until she had asked him to stop “[t]wo or three times.” This testimony
reasonably supports the statement in the Petitioner’s brief that Milbeck “started” having sexual
intercourse with her in July 2018—in other words, that Milbeck attempted to initiate sexual
intercourse. Given the Petitioner’s testimony, we cannot agree with Milbeck that the relevant
statement from the Petitioner’s brief is inherently false.

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