Angela Lee Linsmeyer v. Jason Scott Linsmeyer

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.
November 5, 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. 2019AP2032 Cir. Ct. No. 2015FA224

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE CONTEMPT PROCEEDINGS IN
IN RE THE MARRIAGE OF:

ANGELA LEE LINSMEYER,

PETITIONER-RESPONDENT,

V.

JASON SCOTT LINSMEYER,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Dodge County:
BRIAN A. PFITZINGER, Judge. Affirmed.
No. 2019AP2032

¶1 FITZPATRICK, P.J.1 Jason Linsmeyer, pro se, appeals an order of
the Dodge County Circuit Court that denied Linsmeyer’s motion to enforce a
physical placement order and ordered Linsmeyer to pay his former spouse, Angela
Miller,2 child support from Linsmeyer’s prison release account. Linsmeyer argues
that the circuit court’s failure to grant his request to subpoena the production of
phone records from the correctional institute where he is incarcerated deprived him
of his right to due process. Linsmeyer also argues that the court erred by ordering
that his child support obligation be deducted from his prison release account. I reject
Linsmeyer’s arguments and affirm.

BACKGROUND

¶2 There is no dispute regarding the following material facts.

¶3 Linsmeyer has been incarcerated at the Jackson Correctional
Institution since at least June 2015. In March 2016, a divorce judgment ending
Linsmeyer’s marriage to Miller was entered. At the time of their divorce, Linsmeyer
and Miller had six minor children. In the judgment of divorce, the circuit court

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(h) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
Angela Miller was formerly known as Angela Linsmeyer.

Miller did not file a respondent’s brief as required by the rules of appellate procedure. See
WIS. STAT. RULE 809.19(3). The failure of a respondent to file a brief is grounds for summary
reversal. See WIS. STAT. RULE 809.83(2); State ex rel. Blackdeer v. Township of Levis, 176 Wis.
2d 252, 259-60, 500 N.W.2d 339 (Ct. App. 1993) (stating summary reversal is an appropriate
sanction for a respondent’s violation of briefing requirements). However, whether to grant
summary reversal as a sanction against a party who fails to file a brief is a decision left to this
court’s discretion. Raz v. Brown, 2003 WI 29, ¶14, 260 Wis. 2d 614, 660 N.W.2d 647. I have
determined that this appeal does not warrant summary reversal and decide the appeal based solely
upon my review of Linsmeyer’s brief, the record, and applicable authorities.

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awarded Miller sole physical placement of the children and ordered that Linsmeyer
have weekly phone visits with the children.

¶4 In July 2016, Linsmeyer filed a motion requesting an “Order to Show
Cause for Contempt,” alleging that he had been denied phone visits with the
children. Miller, in turn, filed a motion with the court seeking modification of the
parties’ placement order. Miller averred that she had “made efforts” to comply with
the placement order but “[n]one of [the] children wish to talk with [Linsmeyer]” and
“are extremely traumatized when they have been forced to talk with [Linsmeyer].”
A hearing on the parties’ motions was held, and the court entered an order that
denied, with prejudice, Linsmeyer’s request for a contempt order, but modified the
placement order to provide as follows:

[Linsmeyer] shall call [Miller’s] phone every
Wednesday at 12:40 p.m. to talk with his children. At that
time, [Miller] shall make [the four youngest children]
available to talk to [Linsmeyer]. She will answer the phone,
and, if any of the children want to talk with [Linsmeyer] at
that time, she shall make them available to the phone. If one
or more of the children do not wish to talk with [Linsmeyer],
[Miller] shall advise [Linsmeyer] of that at the time of the
telephone call.… [Linsmeyer] is not to call to talk with the
children at any other time.

… [Linsmeyer] is allowed to call [the two older
children] at any time, because they have their own phones.
If they want to talk to him, they will answer the phone. If
not, they will not answer the phone.

¶5 In May 2018, Linsmeyer filed a motion with the circuit court to
enforce the physical placement order, alleging that his periods of placement had
been denied or substantially interfered with by Miller, and requesting that the court
find Miller to be in contempt. A hearing was held on Linsmeyer’s motion, and, in
December 2018, the court entered an order that modified the placement order but

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left pending a ruling on Linsmeyer’s motion. The December 2018 order provided
in pertinent part:

 “[A]t 12:40 p.m., [Linsmeyer] shall call [Miller]’s cell phone to talk
to the children” on the following five dates: December 19, 2018;
January 23, 2019; February 20, 2019; February 20, 2019; March 20,
2019; and April 24, 2019.

 Miller “shall make the children available” on the five specified dates
at the specified time “and when [Linsmeyer] calls, if a child wants to
talk to him, [Miller] shall put the child on the telephone. If a child
does not want to talk to him, [Miller] shall advise [Linsmeyer] of
that.”

 After the April 24, 2019 telephone call, the court “will set … a hearing
… to review status.”

¶6 In May 2019, Miller filed a motion with the circuit court requesting
an order requiring Linsmeyer to pay child support. A hearing was held on
August 27, 2019, to address Miller’s child support request. Upon Linsmeyer’s
agreement to pay monthly child support and his agreement that child support be
deducted from his release account, the court ordered Linsmeyer to pay Miller
monthly child support in the amount of $25 and ordered that any funds remaining
in Linsmeyer’s prison release account after court costs were deducted from that
account would be paid to Miller towards Linsmeyer’s child support obligation.

¶7 At the August 27, 2019 hearing, the court also revisited Linsmeyer’s
May 2018 motion to enforce the physical placement order and for contempt. At the
hearing, Linsmeyer informed the court that sometime before the hearing he had filed

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a request to subpoena phone records from the Jackson Correctional Institution. The
court did not grant Linsmeyer’s request to grant the subpoena. The court received
testimony from Linsmeyer and Miller, who gave conflicting testimony concerning
Miller’s compliance with the placement order. The court found credible Miller’s
testimony that she had complied with the placement orders. Based upon the court’s
discussion with the children prior to the hearing, the court also found that the
children are “angry” with Linsmeyer and “don’t want to talk to [him].” Based on
those findings, the court determined that Linsmeyer had not shown that Miller had
denied or interfered with Linsmeyer’s phone visitation and denied Linsmeyer’s
motion.

¶8 Additional material facts, including the relevant evidentiary hearing
testimony, is mentioned in the discussion below.

DISCUSSION

I. The Circuit Court Ruling on Linsmeyer’s Motion to Enforce the
Physical Placement Order.

¶9 Linsmeyer challenges the circuit court’s September 2019 order
denying Linsmeyer’s May 2018 motion to enforce the physical placement order.
Linsmeyer asserts that the court violated his right to due process by denying that
motion without first granting his request for the issuance of a subpoena requiring
the Jackson Correctional Institution to produce certain phone records. I begin by
first setting forth additional material facts and then the standard of review.

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No. 2019AP2032

A. Additional Material Facts.

¶10 On August 22, 2019, five days before the hearing on Miller’s motion
for child support, Linsmeyer filed a motion with the circuit court “requesting
subpoena of phone records.” In his motion, Linsmeyer stated:

Please take notice that … Linsmeyer[] will appear
before [the circuit court] … on the 27th day of August 2019,
and will ask the [c]ourt to order the Subpoena of phone
records of the respondent … Angela Lee Miller. Specifically
I will ask the court to subpoena all received phone calls from
[a phone number belonging to the Jackson Correctional
Institution] to [Miller’s phone number] from February 1st of
2016 until December 31st of 2018.

¶11 At the August 27, 2019 hearing, the court reviewed the status of
Linsmeyer’s May 2018 motion alleging that Miller had prevented or interfered with
Linsmeyer’s phone visitation with the children and requesting a contempt order
against Miller. Linsmeyer informed the court that he had filed with the court a
motion requesting a subpoena of the phone records of the Jackson Correctional
Institution “so that we [do not] have to rely on individual testimony.” The court did
not grant Linsmeyer’s request.

¶12 The circuit court heard testimony from Miller and Linsmeyer, who
gave conflicting testimony on Miller’s compliance with the placement order. Miller
testified that, on all dates Linsmeyer was scheduled to have a phone visit with the
children, she answered the phone if Linsmeyer called within the court-ordered time,
that the children were given an opportunity to talk with Linsmeyer, and that the calls
lasted “long enough for [Miller] to tell [Linsmeyer] that the children did not want
to talk to [him].”

¶13 Linsmeyer testified that Miller had denied him phone visits with the
children on at least eight separate dates between January 2018 and May 2018.

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However, Linsmeyer admitted that the controlling placement order provided that
Linsmeyer was to have phone visits with the children at 12:40 p.m. on December 18,
2018; January 23, 2019; February 20, 2019; March 20, 2019; and April 24, 2019.
As to those dates, Linsmeyer testified that on one date he called at the specified
time, on one date he called late, and he did not call on the other three dates. As to
the single occasion that Linsmeyer timely called, Linsmeyer did not testify that
Miller prevented or interfered with his right to speak with the children.

¶14 The circuit court found Miller’s testimony that she complied with the
placement orders to be credible. Based on Miller’s testimony and the court’s
discussion with the children during which the children informed the court that they
“are angry with [Linsmeyer],” the court denied Linsmeyer’s motion.

B. Standard of Review.

¶15 This case concerns whether the circuit court erred by not granting
Linsmeyer’s request to subpoena phone records from the Jackson Correctional
Institution and whether the court’s denial of that request abridged Linsmeyer’s
constitutional right to a fair hearing. See General Elec. Co. v. WERB, 3 Wis. 2d
227, 241, 88 N.W.2d 691 (1958) and Bituminous Cas. Co. v. DILHR, 97 Wis. 2d
730, 735, 295 N.W.2d 183 (Ct. App. 1980) (stating an order made in a proceeding
in which there has not been a full hearing is a denial of due process).

¶16 A circuit court’s decision to grant or deny a motion for a subpoena
duces tecum3 lies within the circuit court’s discretion. See Nashban Barrel &
Container Co. v. G. G. Parsons Trucking Co., 49 Wis. 2d 591, 611, 182 N.W.2d

3
A subpoena duces tecum is a “subpoena to compel production of books, papers,
documents, or tangible things.” State v. Gilbert, 109 Wis. 2d 501, 509, 326 N.W.2d 744 (1982).

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No. 2019AP2032

448 (1971). A circuit court’s discretionary decisions are reviewed under an
erroneous exercise of discretion standard. State v. Allen, 2004 WI 106, ¶9, 274 Wis.
2d 568, 682 N.W.2d 433. Under that standard, an appellate court will affirm a
discretionary decision “unless it can be said that no reasonable judge, acting on the
same facts and underlying law, could reach the same conclusion.” State v. Jeske,
197 Wis. 2d 905, 913, 541 N.W.2d 225 (Ct. App. 1995).

¶17 Whether a due process violation has occurred presents a question of
constitutional fact. See State v. Bergwin, 2010 WI App 137, ¶9, 329 Wis. 2d 737,
793 N.W.2d 72. When reviewing questions of constitutional fact, this court will
uphold a circuit court’s factual findings unless those findings are clearly erroneous.
State v. Samuel, 2002 WI 34, ¶15, 252 Wis. 2d 26, 643 N.W.2d 423; see WIS. STAT.
§ 805.17(2). However, this court will independently decide whether those facts
meet the constitutional standard. Samuel, 252 Wis. 2d 26, ¶15.

C. Analysis.

¶18 Linsmeyer contends that the circuit court’s failure to grant his
subpoena request violated his due process right to a fair hearing. He challenges the
court’s finding that Miller was a credible witness and argues that without the phone
records, which would have provided “impartial evidence” of whether Miller had
complied with the placement order, he was denied a fair hearing. I first address
Linsmeyer’s challenge of the court’s credibility finding.

¶19 When there is a conflict in testimony, the circuit court, when acting as
the fact finder, is the ultimate arbiter of a witness’s credibility. See Cogswell v.
Robertshaw Controls Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647 (1979). An
appellate court will not overturn a court’s credibility determination unless the
determination is “inherently or patently incredible or in conflict with the uniform

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course of nature or with fully established or conceded facts.” Global Steel Prods.
Corp. v. Ecklund Carriers, Inc., 2002 WI App 91, ¶10, 253 Wis. 2d 588, 644
N.W.2d 269. Linsmeyer argues that circuit court’s finding that Miller’s testimony
was credible is “hardly fair” because “the court’s only ground[] for finding” that
Miller was credible “is that [] Linsmeyer is a prisoner.” However, the court had the
opportunity to observe Miller’s demeanor in response to questions and to gauge the
persuasiveness of her testimony. See Lessor v. Wangelin, 221 Wis. 2d 659, 667-
68, 586 N.W.2d 1 (Ct. App. 1998). Resolution of Linsmeyer’s motion turned on
credibility. The court had the right to believe Miller’s testimony and to reject
Linsmeyer’s conflicting testimony. I now turn to Linsmeyer’s due process
argument.

¶20 Linsmeyer asserts that the circuit court erred by not granting his
request for a subpoena of the correctional institution’s phone records and that,
without those records, he was denied a fair hearing in violation of his due process
rights. I need not, and do not, decide whether the circuit court’s decision not to
grant Linsmeyer’s request for a subpoena was erroneous because I conclude that,
even if it was (and I do not come to that conclusion), Linsmeyer’s constitutional
right to due process was not violated. Cholvin v. DHFS, 2008 WI App 127, ¶34,
313 Wis. 2d 749, 758 N.W.2d 118 (stating if a decision on one point disposes of the
appeal, the court will not decide other issues raised). While Linsmeyer is correct
that an order made in a proceeding in which there has not been a full hearing is a
denial of due process and is void, see General Electric, 3 Wis. 2d at 241, I am not
convinced that Linsmeyer received less than a full hearing.

¶21 Circuit courts are vested with “inherent discretionary power to control
[their] docket[s] with economy of time and effort.” Rupert v. Home Mut. Ins. Co.,
138 Wis. 2d 1, 7, 405 N.W.2d 661 (Ct. App. 1987). They also have broad discretion

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in determining the admission of evidence. Berg-Zimmer & Assocs., Inc. v. Central
Mfg. Corp., 148 Wis. 2d 341, 349, 434 N.W.2d 834 (Ct. App. 1988). Circuit courts
are not bound to entertain evidence that is irrelevant to the issues at hand. See State
v. Anthony, 2015 WI 20, ¶48, 361 Wis. 2d 116, 860 N.W.2d 10.

¶22 Linsmeyer conceded at the August 27, 2019 hearing that the
controlling placement order was the order entered in December 2018. That order
specified that Linsmeyer was to have phone visits with the children on five specific
dates between December 2018 and April 2019, and ordered Linsmeyer to call Miller
on the specified dates at a specified time. Linsmeyer testified that on four of the
five specified dates he either did not call or called late, and he did not claim at the
hearing that Miller prevented him from speaking with the children on the only date
he timely called Miller. The phone records Linsmeyer sought in the subpoena
covered calls made between February 1, 2016 and December 31, 2018. Production
of those records would not have provided any unique information relevant to the
question of whether Miller had prevented or interfered with the May 2018
placement order. Accordingly, I conclude that Linsmeyer’s due process rights were
not violated by the circuit court’s failure to grant his subpoena request.

II. The Circuit Court’s Child Support Order.

¶23 Linsmeyer next contends the circuit court did not have authority to
order the DOC to distribute funds from his release account to Miller for payment of
his child support obligation. Linsmeyer asserts that the disbursement of release
account funds is permissible only for the purpose of paying fees related to
commencing or defending a legal action and that the child support payment ordered
by the court does not fall within that category.

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¶24 I begin by setting forth additional material facts and the standard of
review.

A. Additional Material Facts.

¶25 At the August 27, 2019 hearing, Linsmeyer testified to the following
material facts. At the Jackson Correctional Institution he is sometimes employed as
a recreation worker for which he is paid twenty-six cents per hour. He has two
financial accounts at the correctional institution, a general account and a release
account. Ten percent of all money earned or received (for example, by gift) by
Linsmeyer is deposited into Linsmeyer’s release account, and all remaining money
earned or received by Linsmeyer is deposited into his general account. At the time
of the August 2019 hearing, the balance of Linsmeyer’s general account was
“maybe a couple hundred bucks,” and the balance of Linsmeyer’s release account
was approximately $1000.

¶26 Miller’s counsel requested that the circuit court order Linsmeyer to
pay “$25 a month” in child support and order that the money contained in
Linsmeyer’s release account “be paid as child support.” Linsmeyer informed the
circuit court that he had “no issue paying what I can” for child support, that he would
be “more than happy” to pay Miller “up to $25 per month,” and that he was willing
to pay a portion of the funds contained in his release account towards child support.
The court ordered the following:

 “Commencing September 1, 2019, [Linsmeyer] shall pay the sum of
$25.00 per month to [Miller] as and for child support”; and

 Linsmeyer “shall pay from his prison release account the following
obligations:

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A. All of his court costs associated with this matter in the amount
of $0.00.

B. The balance of the funds shall be paid directly to [Miller] at
her address.”

B. Standard of Review.

¶27 To determine whether a circuit court had authority to order the DOC
to release funds from Linsmeyer’s “release account” to pay his child support
obligation, I must interpret governing statutes and administrative rules. Like the
interpretation of a statute, the interpretation of an administrative code provision
presents a question of law subject to de novo review. State v. Dowdy, 2012 WI 12,
¶25, 338 Wis. 2d 565, 808 N.W.2d 691 and Orion Flight Servs., Inc. v. Basler
Flight Serv., 2006 WI 51, ¶18, 290 Wis. 2d 421, 714 N.W.2d 130. “The purpose
of statutory construction is to ascertain and give effect to the legislative intent.”
Spence v. Cooke, 222 Wis. 2d 530, 536, 587 N.W.2d 904. Statutory and
administrative rule interpretation begins first with an examination of the pertinent
language. Id. “If the statute’s meaning is clear and unambiguous on its face, resort
to extrinsic aids for the purpose of statutory construction is improper.” Id. If the
applicable language is capable of being understood by reasonably well-informed
persons in two or more different ways, the language is ambiguous. Id.

C. Analysis.

¶28 Release accounts are governed by WIS. ADMIN. CODE § DOC ch. 309
(through Oct. 2020). See Spence, 222 Wis. 2d at 532 n.1. Section DOC 309.466(1)
provides for the establishment of an inmate’s release account. Spence, 222 Wis. 2d
at 532 n.1. That section provides that the “institution business office shall deduct
10% of all income earned by or received for the benefit of the inmate … until $5,000

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is accumulated, and shall deposit the funds in a release account in the inmate’s
name.” Sec. DOC 309.466(1).

¶29 In 2009, the administrative code was amended to “expand[] the
purposes for which inmate release account funds can be used” prior to an inmates
release. See WIS. ADMIN. CODE § DOC 309.466(2) (2009) and Emergency Rule
EMR0920, https://docs.legis.wisconsin.gov/code/misc/old/emr/emr0920_rule_text
/emr0920_rule_text (last visited Oct. 28, 2020).

¶30 WISCONSIN ADMIN. CODE § DOC 309.466(5) provides: “The
institution business office shall disburse release account funds in accordance with
[WIS. ADMIN. CODE §] DOC 309.48.”4 Section DOC 309.48, in turn, provides that
“[e]ach institution shall set forth in writing a procedure whereby inmates may
request the disbursement of funds.”

¶31 Policy No. 309.45.02 of the Division of Adult Institutions sets forth
the DAI’s policy and procedures on “Inmate Trust System Deductions.” (See DAI
policy No. 309.45.02 (eff. Apr. 4, 2016), available at
https://doc.wi.gov/DepartmentPoliciesDAI/3094502.pdf (last visited Oct. 28,
2020). Of relevance here is section V, which sets forth the DAI’s policy on a non-
custodial parent’s child support obligation (Linsmeyer is a non-custodial parent).
Subsection A of section V provides: “When the Order/Notice to Withhold Income
form is received from a county child support agency, facilities shall establish a child
support deduction to be taken from all inmate monies, except VA benefits, unless
the Order/Notice to Withhold Income specifically states that deductions will be

4
Separate from WIS. ADMIN. CODE § DOC 309.466, under the Prisoner Litigation Reform
Act, 1997 Wis. Act 133, release account funds are available to pay fees and costs of litigation,
including filing fees, see Spence v. Cooke, 222 Wis. 2d 530, 537, 587 N.W.2d 904 (Ct. App. 1998),
and the fee for preparation of transcripts, see State ex rel. Akbar v. Kronzer, 2004 WI App 108,
¶4, 273 Wis. 2d 749, 681 N.W.2d 280 (per curiam). That Act is not at issue here.

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taken only from inmate wages.” No. 309.45.02, § V(A) (emphasis added).
Subsection B of section V states:

The [Department of Children and Families]
establishes the process used by courts to determine what
amount of child support should be ordered.

1. In making that determination, the courts look
closely at what the non-custodial parent is earning as gross
income.

2. WISCONSIN STAT[.] [§] 767.75 controls how or
from what sources the DOC collects child support.

3. This statute states that each order for child support
or spousal support “constitutes an assignment of all
commissions, earnings, salaries, wages, pension benefits,
benefits under Ch. 102 or 108, lottery prizes that are payable
in installments, and other money due or to be due in the
future to the department or its designee.” (small
capitalization added).

No. 309.45.02, § V(B). Subsection C of section V in turn provides:

The DCF, which collects the child support on behalf
of the child or custodial parent, interprets [the quoted
language of WIS. STAT. § 767.75 in subsection B] to mean
that any money from any source, including gifts that are paid
or payable to the non-custodial parent would constitute
money due to DCF if that non-custodial parent owes child
support. Therefore, if the non-custodial parent owes child
support, the DOC can deduct money from any source (other
than refunds and ICRS reimbursements) for purposes of
collecting the amount ordered, unless the order specifically
states that support only be withheld from inmate wages.

No. 309.45.02, § V(C).

¶32 Under the statutory analysis in DAI policy No. 309.45.02, § V(A)-
(C), child support can be deducted from any funds, except VA benefits, belonging
to the non-custodial inmate. Wisconsin law does not restrict deductions for child
support to be made from those funds deposited in the inmate’s general account, and
Linsmeyer does not, in any statutory analysis, assert otherwise.

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¶33 Linsmeyer refers this court to a number of cases in support of his
contention that funds in a release account cannot be disbursed to pay an inmate’s
child support obligation. See Parker v. Parker, 152 Wis. 2d 1, 447 N.W.2d 64
(1989); Richards v. Cullen, 150 Wis. 2d 938, 442 N.W.2d 574 (Ct. App. 1989); and
State ex rel. Steldt v. McCaughtry, 2000 WI App 176, ¶15, 238 Wis. 2d 393, 617
N.W.2d 201. However, those cases either predate the 2009 amendment to WIS.
ADMIN. CODE § DOC 309.466 or are inapposite of the issue here. Linsmeyer also
points to Attachment A to DAI policy No. 309.45.02 and asserts that the purposes
listed in that document are the “only” permissible purposes for which release funds
may be disbursed. Attachment A lists purposes for which inmate release funds may
be used. See No. 309.45.02(IX)(B) and Attachment A, available at
https://doc.wi.gov/Pages/AboutDOC/DepartmentPolicies/DAIPolicies.aspx (last
visited Oct. 28, 2020). However, nothing in the policy indicates that the purposes
listed in Attachment A are exhaustive, and nothing in the policy states that funds
cannot be deducted from a release account for child support.

¶34 Accordingly, I conclude that the circuit court had authority to order
funds be deducted from Linsmeyer’s release account for child support.

CONCLUSION

¶35 For the foregoing reasons, the order of the circuit court is affirmed.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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