Clay Teasdale v. Marinette County Child Support Agency, 2009 WI App 152
Issue/Holding: Case specialist’s request to judge via affidavit and proposed order for remedial-contempt commitment was in fact if not form a “motion” and “was improper on numerous grounds”: it violated the §802.05(1) requirement that aside from pro se litigation motions must be signed by an attorney else must “be stricken”; it wasn’t filed with the clerk of circuit court, contrary to § 801.16(1); it violated the proscription against ex parte communications; and, it failed to afford the 5-days’ minimum notice required by § 801.15(4).
Minor point, perhaps: the court notes Teasdale’s argument that, because the request was signed by a nonattorney, the trial court lacked competency to issue the order, ¶1, but the court never quite gets around to saying whether or not it agrees. The court, to be sure, clearly says “the child support agency’s request for a commitment order should have been stricken from the record,” id., but whether that outcome equates to a lack of competency is left to the reader’s determination. The court is clear, though, about the necessity of notice:
¶11 Further, motions “shall” be heard on a minimum of five days’ notice. Wis. Stat. § 801.15(4). Yet, here the agency’s request for a commitment order was granted the day after its submission. A contemnor is entitled to an opportunity to request a hearing before being committed to jail for allegedly failing to comply with purge conditions. V.J.H., 163 Wis. 2d at 838, 842-44 (“When a contemnor’s liberty interests are at risk he or she must be given the opportunity to show the court that the failure to comply with the purge condition was not willful and intentional.”). Thus, as a matter of necessity, the contemnor must be provided notice of the allegations before any arrest warrant is issued. [7] In light of our decision in V.J.H., the court’s policy as described in this case, to jail the contemnor first and ask questions later, cannot be condoned. [8]
