Danielle Ann Margaret Rowland v. Mark D. Larsen ( 2019 )

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 17, 2019
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. 2018AP1408 Cir. Ct. No. 2012PA816PJ
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
IN RE THE AWARD OF GUARDIAN AD LITEM FEES IN:
DANIELLE ANN MARGARET ROWLAND,
PETITIONER-RESPONDENT,
V.
MARK D. LARSEN,
RESPONDENT-APPELLANT.
APPEAL from a judgment of the circuit court for Dane County:
RICHARD G. NIESS, 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. 2018AP1408
¶1 PER CURIAM. Mark D. Larsen, pro se, appeals a circuit court
judgment for payment of guardian ad litem (GAL) fees. Larsen contends that the
court erred by refusing to address Larsen’s objection to the GAL’s proposed order
for fees. For the reasons set forth below, we disagree. We affirm.
¶2 In June 2017, Lisa Friedrich was appointed GAL for the minor child
in this paternity action. The circuit court ordered the parties to the paternity action
to pay the GAL fees, with Larsen responsible for 75% of the fees and the child’s
mother responsible for 25% of the fees. It further ordered Larsen to pay a $1,500
retainer to Friedrich by July 21, 2017. At an August 2, 2017 status conference,
Friedrich informed the court that she had not received the retainer or had any
contact from Larsen. In May 2018, Friedrich requested a hearing to address her
unpaid fees.
¶3 On June 6, 2018, the circuit court held a hearing on the issue of the
unpaid GAL fees. Friedrich informed the court that the fees had not been paid,
and that Larsen had not made a payment or contacted her since February 2018.
Larsen testified that he had made payments to Friedrich. He also testified that he
contacted Friedrich to set up a payment plan, but that Friedrich rejected his
proposals. He testified that he had been unable to make payments since February
because he had been laid off and only able to find part-time work. He testified
that he was again working full-time, and that he would be able to pay $500 per
month toward GAL fees going forward. He stated that Friedrich had told him that
he needed to pay her an additional $3,500 retainer for a trial on placement, and
that he did not believe there was a court order for the additional retainer. Larsen
objected to the 75% apportionment of fees to him during the period of time that he
had not been working full-time. Friedrich stated that the remaining GAL fees that
Larsen was obligated to pay her totaled over $4,000.
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¶4 The circuit court found that Larsen was shirking as to the GAL fees.
The court noted that Friedrich was one of the GALs recommended by Larsen’s
counsel and that all of the parties were aware of her fee. It also stated that the fees
charged were not surprising given the complexity and conflict in this case. The
court found that the allocation of the GAL fees between the parties was
appropriate given the parties’ respective incomes. It stated that it would award a
judgment of $4,000 to Friedrich and order Larsen to pay $500 per month toward
the judgment.
¶5 Larsen filed a pro se objection to Friedrich’s proposed GAL fees,
arguing that the amount was in excess of the amount stated at the June 6, 2018
hearing, that the fees are duplicated in the billing, that Larsen was charged fees
when the child’s mother was not, and that Friedrich had increased her charges as
retaliation for Larsen accusing her of lying in connection with a placement order.
At a June 18, 2018 status conference, the circuit court stated that it would not
consider pro se motions from represented parties, and Larsen’s counsel confirmed
that he was not participating in an objection to the GAL fees. Counsel also noted
that the parties had reached a stipulation as to placement, and that he intended to
withdraw as counsel once that was approved. The court stated that it would enter
the pro se motion objecting to the GAL fees but not hear the motion while Larsen
was represented by counsel. Following the hearing, Friedrich submitted a letter to
the court requesting that the court order Larsen to itemize any objection he had to
Friedrich’s fees before the court would schedule a hearing on the objection, citing
Dane County Court Rule 409.4.
¶6 On June 19, 2018, the circuit court awarded a judgment to Friedrich
against Larsen in the amount of $4,513.96, plus interest accrued since the June 6,
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2018 hearing at the statutory rate. The court also ordered Larsen to pay $500 per
month until the judgment is paid in full. Larsen appeals.
¶7 Larsen contends that the circuit court erred by failing to address
Larsen’s objection to the proposed order for GAL fees. He requests that this court
reverse the judgment for GAL fees and remand to the circuit court for examination
of Friedrich’s billing practices. Friedrich responds that Larsen forfeited his
objection to the GAL fees by not properly raising it in the circuit court. Friedrich
points out that Larsen was still represented by counsel when Larsen filed a pro se
objection to the fees, and argues that Larsen never complied with Dane County
Court rules for objecting to GAL fees. In reply, Larsen argues that the court erred
by failing to consider all of the circumstances affecting his ability to pay; that the
court penalized him for his inability to pay by adopting Friedrich’s proposed
placement order; that he did not receive fair notice that the June 6, 2018 hearing
would be an evidentiary hearing on his inability to pay; and that if he had proper
notice he would have presented evidence of his inability to pay the GAL fees at
the hearing.
¶8 We conclude that Larsen failed to properly raise an objection to the
GAL fees in the circuit court. Larsen cites only his June 15, 2018 pro se objection
as the point at which he objected to the fees in the circuit court. However, the
court stated at the June 18, 2018 status conference that the court would not
consider that objection because Larsen was then represented by counsel. Larsen’s
counsel confirmed that he continued to represent Larsen at that point and that
counsel was not pursuing an objection to the GAL fees. Accordingly, the court
properly declined to consider the pro se objection at that time. See State v.
Redmond, 203 Wis. 2d 13, 19-20, 552 N.W.2d 115 (Ct. App. 1996) (a defendant
may proceed with counsel or pro se, but is not entitled to hybrid representation).
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No. 2018AP1408
Larsen does not cite anything in the record showing that he ever properly pursued
a pro se objection to GAL fees. Thus, the issue was not properly preserved for
appeal and we will not address it. See State v. Van Camp, 213 Wis. 2d 131, 144,
569 N.W.2d 577 (1997) (arguments raised for the first time on appeal are
generally deemed forfeited).
¶9 We also decline to reach the arguments that Larsen raises for the
first time in his reply brief. See State v. Chu, 2002 WI App 98, ¶42 n.5, 253
Wis. 2d 666, 643 N.W.2d 878 (court will generally not address issues raised by an
appellant for the first time in a reply brief).
¶10 We note as well that Larsen fails to develop coherent arguments that
apply relevant legal authority to the facts of record, and instead relies largely upon
conclusory assertions. This court need not consider arguments that are
unsupported by adequate factual and legal citations or are otherwise undeveloped.
See Dieck v. Unified Sch. Dist. of Antigo, 157 Wis. 2d 134, 148 n.9, 458 N.W.2d
565 (Ct. App. 1990) (unsupported factual assertions); State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (undeveloped legal arguments).
While we make some allowances for the failings of parties who, as here, are not
represented by counsel, “[w]e cannot serve as both advocate and judge,” Pettit,
171 Wis. 2d at 647, and will not scour the record to develop viable, fact-supported
legal theories on the appellant’s behalf. State v. Jackson, 229 Wis. 2d 328, 337,
600 N.W.2d 39 (Ct. App. 1999). Here, Larsen has failed to develop his arguments
legally or to support them factually. Therefore, we affirm the circuit court on this
basis as well.
¶11 Finally, Friedrich requests that this court sanction Larsen for
violating the rules of appellate procedure as to briefing. Friedrich argues that
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No. 2018AP1408
Larsen cites material not included in the record, and Friedrich points out that this
court cannot consider material outside the record. See South Carolina Equip.,
Inc. v. Sheedy, 120 Wis. 2d 119, 125-26, 353 N.W.2d 63 (Ct. App. 1984) (an
appellate court may review only matters of record in the circuit court, and cannot
consider material outside that record). Friedrich also cites State v. Bons, 2007 WI
App 124, ¶¶20-25, 301 Wis. 2d 227, 731 N.W.2d 367, to support her request that
we sanction Larsen for falsely certifying that the minimally required material was
included in the appendix. We decline to impose sanctions against Larsen for
failing to strictly comply with the rules of appellate procedure.
¶12 As Friedrich points out, we do not consider material outside the
record, and we have not considered any factual assertions by Larsen that are not
supported by the record. In Bons, we sanctioned an attorney for falsely certifying
that the minimally required material was included in the appendix. Id. This court
generally makes some allowances for appellants who, like Larsen, proceed pro se,
and we do so here. We caution Larsen, however, that any briefs he files in the
future must comply with the minimum requirements under WIS. STAT. RULE
809.19 (2017-18),1 or he may be subject to sanction.
¶13 In sum, we affirm the circuit court judgment. We decline to impose
sanctions against the pro se appellant for violating the rules of appellate procedure
in briefing.
By the Court.—Judgment affirmed.
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2018AP1408
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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