Julie C. Valadez v. Michael J. Aprahamian

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.
February 2, 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. 2021AP1436 Cir. Ct. No. 2018FA296

STATE OF WISCONSIN IN COURT OF APPEALS

IN RE THE FINDING OF CONTEMPT IN:
IN RE THE MARRIAGE OF JULIE C. VALADEZ V. RICARDO VALADEZ.

JULIE C. VALADEZ,

APPELLANT,

V.

THE HONORABLE MICHAEL J. APRAHAMIAN,

RESPONDENT.

APPEAL from an order of the circuit court for Waukesha County:
MICHAEL J. APRAHAMIAN, Judge. Reversed.
No. 2021AP1436

¶1 NEUBAUER, J.1 Julie C. Valadez appeals from a contempt order
issued by the circuit court during post-divorce proceedings. Valadez argues that
the order should be vacated because the circuit court did not comply with the WIS.
STAT. § 785.03 contempt procedure when it found her in contempt for failing to
comply with circuit court orders. We agree and reverse and vacate the contempt
order.

II. BACKGROUND

¶2 These matters arise following the divorce of Valadez from her
former husband, Ricardo Valadez. Valadez has been subject to three prior
contempt orders by the circuit court that were appealed to this court, the
background and outcome of which are set forth in detail in our decision in Valadez
v. Aprahamian, Nos. 2021AP994 and 2021AP1186, unpublished slip op. (WI App
Feb. 2, 2022), which we also released today. In those cases, we reversed and
vacated two of the three contempt orders, one of which addressed the June 2, 2021
contempt order arising from Valadez’s refusal to sign a release relating to a family
court services study (the “June 2, 2021 release contempt order”). The June 2,
2021 release contempt order provides background for the contempt order on
appeal here. Valadez, Nos. 2021AP994 and 2021AP1186, ¶¶11-17. As such, we
discuss that order summarily and as relevant here but note that the detail is set
forth in our other decision.

¶3 The events at issue arise from the guardian ad litem’s (GAL) motion
for a change of placement of all the Valadez’s children from shared placement to

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(h) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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No. 2021AP1436

placement with Mr. Valadez only, as well as a subsequent motion for Valadez to
undergo a psychological evaluation. In response to the first motion, at a hearing
on March 23, 2021, the circuit court entered an order for a family court services
study to be conducted and continued the hearing without making a final decision
as to placement.

¶4 At a status hearing on June 2, 2021, the court summarily found
Valadez in contempt for refusing to sign a release for the Waukesha County
Department of Health and Human Services (DHHS) so that the social worker
could access records relating to Valadez and her children for the family court
services study—the June 2, 2021 release contempt order. After the court found
her in contempt, Valadez signed the release, and the court found Valadez had
purged her contempt.2

¶5 Subsequently, Valadez called DHSS and revoked the release.

¶6 On July 28-30, 2021, the court conducted an evidentiary hearing
related to the GAL’s motion for a change in placement of the children. It was
determined that records through June 2, when Valadez signed the release and the
prior contempt was purged, had been released. However, because Valadez
subsequently revoked her release, the court determined that Valadez needed to
prepare a stipulated order effectively providing for the release of information by
August 4, 2021, advising that Valadez’s failure to do so would be in contempt of
the order and a jail sanction would be imposed. For ease of reference, we refer to
the July 30, 2021 order regarding the release as the “second release order.”

2
As noted above and discussed further below, the June 2, 2021 release contempt order
was vacated in another opinion which we also released today.

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No. 2021AP1436

¶7 In response to the GAL’s second motion, the court also ordered that
Valadez undergo a psychological evaluation and ordered that it be accomplished
promptly so the report could be used at the final hearing scheduled for October 4,
2021.

¶8 Valadez did not provide a stipulated order regarding the release by
August 4.

¶9 On August 9, 2021, the GAL filed a letter with the court stating that
Valadez had not completed or signed the necessary referral paperwork for the
psychological evaluation and had not scheduled an appointment.

¶10 After receiving the GAL’s letter, the court issued an order to show
cause on August 10, 2021, as to “why Ms. Valadez should not be held in contempt
for her failure to comply” with the July 30, 2021 order regarding the psychological
evaluation and for her noncompliance with the order to release records “to remedy
her inappropriate revocation of the release the Court had her sign on June 2, 2021,
to purge her contempt of court.” The court set a hearing to be held three days later
on the order to show cause.

¶11 At the August 13 hearing, counsel for Valadez3 objected to the
hearing procedure because it was a nonsummary contempt proceeding, which
cannot be initiated by a judge. The court overruled the objection, holding that the
contempt “is in part summary because it’s a continuation of the summary

3
Although Valadez was ordered to appear at the August 13 hearing, she did not. Neither
party contends that this is relevant to this appeal.

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No. 2021AP1436

contempt that I found in June and also … I have inherent authority to proceed with
contempt.”

¶12 The court imposed thirty days in jail, concurrently, for each
violation, with the opportunity for Valadez to purge her contempt by complying
with the prior orders, i.e., sign the release and undergo a psychological evaluation.
The court also ordered a bench warrant for Valadez’s arrest. On August 17, 2021,
the court issued a written order memorializing its oral ruling.4

¶13 Valadez appeals.

II. DISCUSSION

¶14 Valadez contends the circuit court did not comply with the contempt
procedure under WIS. STAT. § 785.03 because the nonsummary proceeding could
not be initiated by the judge. She points to the court’s order to show cause issued
on August 10, 2021, to address Valadez’s failure to comply with the psychological
evaluation order and the second release order, which was ordered sua sponte by
the court without a motion from an aggrieved party. She also argues that the
finding of contempt cannot be justified under the summary contempt procedure.

¶15 Respondent5 argues that the court appropriately relied on its inherent
authority. Alternatively, Respondent contends a nonsummary proceeding for the

4
In an order dated September 15, 2021, we granted Valadez’s motion to stay the jail
term imposed in the August 17 order, and we ordered that the bench warrant would not be
enforced for the duration of this appeal. We previously stayed enforcement of the bench warrant
issued on August 13.
5
Judge Aprahamian is represented by the Wisconsin Department of Justice. We use the
term Respondent for ease of reference.

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No. 2021AP1436

contempt regarding the psychological evaluation was initiated by the GAL’s letter,
which qualifies as a motion by an aggrieved party, or that the contempt proceeding
as it related to the release was a continuation of the “valid” June 2, 2021 summary
contempt order.

General Principles Regarding Contempt and Standard of Review

¶16 “‘Contempt of court’ means intentional: (a) Misconduct in the
presence of the court which interferes with a court proceeding or with the
administration of justice, or which impairs the respect due the court; [or]
(b) Disobedience, resistance or obstruction of the authority, process or order of a
court[.]” WIS. STAT. § 785.01(1)(a), (b).

¶17 There are two types of contempt procedures: “nonsummary” and
“summary.” WIS. STAT. § 785.03(1), (2). Section 785.03(1) controls imposition
of a nonsummary contempt sanction and § 785.03(2) controls imposition of a
summary contempt sanction.6 Nonsummary procedure requires “a separate
hearing or trial on the contempt charge[.]” Gower v. Circuit Ct. for Marinette
Cnty., 154 Wis. 2d 1, 9, 452 N.W.2d 354 (1990). A summary contempt procedure
is used for addressing contempt that occurs “in the courtroom while court
proceedings are taking place.” Id. at 12 (citing Currie v. Schwalbach, 139
Wis. 2d 544, 552-53 & n.4, 407 N.W.2d 862 (1987)).7

6
As set forth in WIS. STAT. § 785.03(1), the nonsummary procedure provides for either a
remedial sanction or a punitive sanction. The summary procedure involves solely punitive
sanctions. Sec. 785.03(2).
7
Currie v. Schwalbach, 139 Wis. 2d 544, 407 N.W.2d 862 (1987), is also sometimes
cited as State v. Dewerth, as was the case in Gower v. Circuit Court for Marinette County, 154
Wis. 2d 1, 8, 452 N.W.2d 354 (1990). This court will use Currie v. Schwalbach throughout this
opinion.

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No. 2021AP1436

¶18 In reviewing a circuit court’s contempt finding, this court upholds
findings of fact underlying a contempt finding if those findings are not clearly
erroneous. Shepard v. Circuit Ct. for Outagamie Cnty., 189 Wis. 2d 279, 286,
525 N.W.2d 764 (Ct. App. 1994). However, whether the circuit court properly
followed the contempt statute involves interpretation of WIS. STAT. ch. 785 and
thus presents a question of law this court reviews independently. Gower, 154
Wis. 2d at 8.

Inherent Authority

¶19 Although the Respondent is correct that courts have inherent
authority deriving from the Wisconsin Constitution, see State v. Schwind, 2019
WI 48, ¶¶12-14, 386 Wis. 2d 526, 926 N.W.2d 742, “[f]or over one hundred
twenty years … the Wisconsin Supreme Court has recognized legislative
regulation of the contempt power, and the court has proscribed the exercise of this
power outside of the statutory scheme[,]” Evans v. Luebke, 2003 WI App 207,
¶17, 267 Wis. 2d 596, 671 N.W.2d 304. See also Frisch v. Henrichs, 2007 WI
102, ¶32, 304 Wis. 2d 1, 736 N.W.2d 85 (“A court’s power to use contempt stems
from the inherent authority of the court. The power may, however, within
limitations, be regulated by the legislature.” (citation omitted)); id. (“Despite the
fact that the power exists independently of statute, this court ruled … that when
the procedures and penalties of contempt are prescribed by statute, the statute
controls.” (citation omitted)); State ex rel. Lanning v. Lonsdale, 48 Wis. 348,
367, 4 N.W. 390 (1880).

¶20 The legislature has regulated contempt in WIS. STAT. ch. 785, which
thus provides procedures and penalties governing the circuit court’s contempt
power. Accordingly, we reject Respondent’s contention that the contempt order

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No. 2021AP1436

was authorized pursuant to the circuit court’s inherent authority rather than the
statutory procedures.

Nonsummary Contempt Requires a Motion by Someone Other than the Circuit
Court

¶21 Here, as explained below, the contempt findings were based on
Valadez’s failure to follow the court’s orders—typically the subject of
nonsummary contempt—not summary contempt that occurs “in the courtroom
while court proceedings are taking place.” See Gower, 154 Wis. 2d at 12 (citation
omitted); see also id. at 9 (Nonsummary procedure requires “a separate hearing or
trial on the contempt charge.”).

¶22 The nonsummary contempt procedure under WIS. STAT. § 785.03(1)
is initiated either by “[a] person aggrieved by a contempt of court” “filing a
motion,” § 785.03(1)(a) (remedial sanction), or by a “district attorney of a county,
the attorney general or a special prosecutor appointed by the court” “issuing a
complaint charging a person with contempt of court,” § 785.03(1)(b) (punitive
sanction). The “person aggrieved” for a remedial sanction must be “someone
other than the trial court.” Evans, 267 Wis. 2d 596, ¶23 (citation omitted); see
also Frisch, 304 Wis. 2d 1, ¶¶32-33.

¶23 Respondent attempts to support its contention that, as to the
contempt order regarding the psychological evaluation, the proceeding was
properly supported under nonsummary procedure because it was initiated by the
GAL. Namely, Respondent argues that an August 9, 2021 letter to the circuit
court from the GAL should be treated as a motion under WIS. STAT.
§ 785.03(1)(a). We are not persuaded. A motion under WIS. STAT. § 802.01(2)(a)
“shall state with particularity the grounds therefor, and shall set forth the relief or

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No. 2021AP1436

order sought.” The GAL’s letter did not seek any relief from the circuit court,
much less request a contempt order and remedial sanction. The letter did nothing
more than provide a status “update” on the lack of an evaluation. Respondent fails
to identify any authority supporting an argument that we should ignore
§ 802.01(2)(a) clear directives—using “shall” twice. See id.

¶24 Moreover, as Valadez aptly points out, neither the GAL nor the court
treated the letter as a motion regarding the psychological evaluation, nor did the
court construe it as such. Remember, the court drafted, filed, and issued an order
to show cause. At the contempt hearing, the court acknowledged filing the order
to show cause itself due to concerns about the information provided by the GAL
and the lack of response regarding the release of records. The court never once
stated that it had scheduled the hearing on the GAL’s motion, nor did it require the
GAL to present any evidence or offer of proof in support of a motion.

¶25 In fact, the court overruled Valadez’s objection to the court’s
initiative in the contempt proceeding and clarified that the contempt hearing based
on its order to show cause was supported by its inherent authority and a
continuation of the June 2, 2021 summary contempt proceeding. The contempt
order itself states that the August 13, 2021 hearing was held “on the Court’s Order
to Show Cause for Contempt.” There is no reference in the four-page contempt
order to any motion for contempt.

¶26 The record also shows that there was no mention of a motion by the
GAL at the hearing, and it is clear that the GAL knew how to bring a motion for
contempt of court, having previously filed orders to show cause as to Valadez’s
purported contempt related to this case. Respondent’s attempt to recharacterize

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No. 2021AP1436

the impetus for the contempt order regarding the psychological evaluation after the
fact is belied by the record.

¶27 In short, we reject Respondent’s contention that the GAL’s letter
served as a motion for contempt as regards the psychological evaluation. Beyond
that, the letter did not address the release issue, and Respondent makes no
argument that the second release order contempt at issue here was properly
supported as a nonsummary proceeding. Again, the contempt order itself makes
clear that it was initiated by the court, with its order to show cause, and not an
aggrieved party. The circuit court did not comply with the statute as it pertained to
a nonsummary proceeding.

The August 13, 2021 Contempt Order is Not Supported by Summary Procedure.

¶28 Alternatively, consistent with the court’s characterization of the
proceeding at the contempt hearing, Respondent argues that the second release
order contempt was a continuation of the June 2, 2021 release contempt order,
which was entered during a summary contempt proceeding. However, as set forth
in Valadez, Nos. 2021AP994 and 2021AP1186, ¶¶35-36, the June 2, 2021 release
contempt order was vacated. In that proceeding, the court failed to comply with
the WIS. STAT. § 785.03 contempt procedure. While the Respondent argues that
the June 2, 2021 contempt was a “valid” summary proceeding that was continued
in July, we concluded the proceeding and order did not meet the statutory criteria
or procedure for a summary proceeding.8 See Valadez, Nos. 2021AP994 and

8
As explained, WIS. STAT. § 785.03(2) sets forth the summary contempt procedure.
Subsection (2) provides:

The judge presiding in an action or proceeding may impose a
punitive sanction upon a person who commits a contempt of
court in the actual presence of the court. The judge shall impose
(continued)

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No. 2021AP1436

2021AP1186, ¶¶34-35. Specifically, as we have explained, a summary procedure
involves only punitive sanctions (the order requiring Valadez to sign the release
was remedial) and requires a punitive sanction to be imposed “immediately after
the contempt of court and only for the purpose of preserving order in the court and
protecting the authority and dignity of the court.” See id.; WIS. STAT. § 785.03(2)
(emphasis added).9

¶29 In short, we rejected the argument that the June 2, 2021 hearing was
a proper summary proceeding. Contrary to the Respondent’s contention, the
second release order contempt thus cannot be based on violation of the June 2,
2021 release contempt order because that order did not comply with proper
summary procedure.

¶30 Moreover, the second release order of July 30 was in fact, new, and
clearly so as it relates to the psychological evaluation. The court’s order to show
cause and statements in the proceeding made this fact clear; Valadez was to show

the punitive sanction immediately after the contempt of court
and only for the purpose of preserving order in the court and
protecting the authority and dignity of the court.

Id. The statute mandates four requirements before a judge may impose summary
contempt: “(1) The contumacious act must have been committed in the actual presence of the
court; (2) the sanction must be imposed for the purpose of preserving order in court; (3) the
sanction must be imposed for the purpose of protecting the authority and dignity of the court; and
(4) the sanction must be imposed immediately after the contempt.” Oliveto v. Circuit Ct. for
Crawford Cnty., 194 Wis. 2d 418, 429-30, 533 N.W.2d 819 (1995) (citation omitted).

The sanctions which may be imposed are a fine of not more than $500, up to thirty days
in jail, or both. WIS. STAT. § 785.04(2)(b). No alternative sanctions, or purge conditions, are
authorized. See id. By contrast, in the aim of ensuring compliance, purge conditions are required
for remedial nonsummary contempt orders. See, e.g., Diane K.J. v. James L.J., 196 Wis. 2d 964,
968-969, 539 N.W.2d 703 (Ct. App. 1995)
9
The order did not comply with nonsummary procedure either because the court issued
the order sua sponte, without a motion from an aggrieved party.

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No. 2021AP1436

cause as to why she should not be held in contempt for “her noncompliance with
the Court’s order entered on July 30, 2021, that she facilitate the release of CPS
information by August 4, 2021[.]” Indeed, records dated prior to the June 2, 2021
order had already been released. Clearly, the court’s focus was on release of
records going forward from that date. The contempt was for failure to sign the
release of information or file a stipulation and order regarding its release, as
ordered on July 30, 2021.

¶31 Regardless, the same reasons articulated in vacating the June 2, 2021
release contempt order apply here: the order was remedial (seeking to ensure
compliance by requiring Valadez to provide a release), not punitive, and was not
imposed to preserve dignity in the court.10 See WIS. STAT. § 785.03(2) (Sanctions
imposed for summary contempt are punitive and must be imposed immediately for
the purpose of protecting the authority and dignity of the court.); see also Diane
K.J. v. James L.J., 196 Wis. 2d 964, 968-969, 539 N.W.2d 703 (Ct. App. 1995)
(“Remedial contempt is imposed to ensure compliance with court orders[,]” while
“punitive contempt is geared towards preserving the general authority of a
court.”). Because the circuit court did not comply with the statute as it pertained
to a summary proceeding, its contempt finding is reversed and must be vacated.11

10
Valadez also sets forth additional compelling reasons why the second release contempt
proceeding was not conducted to determine if she was in violation of the June 2, 2021 order. We
need not address them, however, given our conclusions set forth herein regarding the vacation of
that order and the focus on this proceeding as relating to the order of July 30, 2021.
11
Valadez also argues that the court’s contempt findings are clearly erroneous. Because
our conclusion that the circuit court did not follow proper contempt procedure is dispositive, we
need not address this argument. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct.
App. 1983) (if we resolve an appeal based on one issue, we need not decide the other issues).

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No. 2021AP1436

By the Court.—Order reversed.

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

13