Jennifer Summerhill v. Dennis M. Lins ( 2020 )

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.
April 14, 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 Nos. 2019AP274 Cir. Ct. Nos. 2018CV7
2018CV9
2019AP275 2018CV10
2019AP276
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
NO. 2019AP274
AURORA SUMMERHILL,
PETITIONER-RESPONDENT,
V.
DENNIS M. LINS,
RESPONDENT-APPELLANT.
NO. 2019AP275
GABRIELLA SUMMERHILL,
PETITIONER-RESPONDENT,
V.
DENNIS M. LINS,
Nos. 2019AP274
2019AP275
2019AP276
RESPONDENT-APPELLANT.
NO. 2019AP276
JENNIFER SUMMERHILL,
PETITIONER-RESPONDENT,
V.
DENNIS M. LINS,
RESPONDENT-APPELLANT.
APPEALS from orders of the circuit court for Iron County:
PATRICK J. MADDEN, Judge. Order affirmed; orders reversed and cause
remanded with directions.
Before Stark, P.J., Hruz and Seidl, 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. In these consolidated cases, Dennis Lins appeals
from orders denying his motions for relief from harassment injunctions entered in
favor of Jennifer, Aurora, and Gabriella Summerhill.1 Lins contends the circuit
court erred, for a number of reasons, in denying his motions.
1
Aurora and Gabriella Summerhill are the minor children of Lins and Jennifer
Summerhill. For the remainder of this opinion, we will refer to Jennifer Summerhill by her
surname and Aurora and Gabriella by their given names.
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¶2 We affirm the circuit court’s denial of Lins’ motion for relief from
the injunction entered in favor of Summerhill on the grounds that, due to Lins’
failure to timely appeal that injunction, we lack jurisdiction to consider Lins’
appellate argument that insufficient evidence supported the injunction. We
reverse the orders denying Lins’ motions for relief from the injunctions granted in
favor of Aurora and Gabriella, however, because the court failed to hold
evidentiary hearings before granting the injunctions, and the injunctions are
therefore void. We remand with instructions that those two injunctions be
vacated.
BACKGROUND
¶3 On January 18, 2018, Summerhill filed three separate petitions
seeking harassment injunctions against Lins on behalf of herself, Aurora, and
Gabriella. The petitions alleged that Summerhill had recently been contacted by
Jennifer Geiss, Lins’ former girlfriend, who informed Summerhill that Lins: had
“been physically abusive” of Geiss, resulting in Lins being charged with multiple
felonies and misdemeanors; “smokes pot and drives around high with Aurora and
[Gabriella] in the car. Smokes pot in the house while both Aurora and Gabriella
are there”; and “would not pick up after himself, leaving his apartment trashed.”
¶4 The petitions further alleged that Summerhill had recently “realized
that [Lins] has been making fake Facebook profiles.” Summerhill claimed that
Lins had used at least one of these fake profiles to “stalk[] me and my children.”
In addition, Summerhill stated that she “had an order of protection against Dennis
Lins in 2008 for stalking and harassment,” and that Lins violated that order by
driving by Summerhill’s house.
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¶5 The circuit court entered temporary restraining orders on the same
day Summerhill filed her petitions. The court then held an injunction hearing on
January 29, 2018. At that hearing, the court called Iron County case
No. 2018CV10 (the case corresponding to Summerhill’s petition); the court did
not, however, call Iron County case Nos. 2018CV07 or 2018CV09 (the cases
corresponding, respectively, to Aurora’s and Gabriella’s petitions).
¶6 Lins and Summerhill appeared without counsel at the injunction
hearing.2 Summerhill provided sworn testimony at the injunction hearing that all
of the information contained in her petition was accurate. When asked for her
“proof,” the transcript of the hearing indicates that Summerhill “presented her
documents” to the court. No documents, however, were entered into evidence or
provided to Lins.
¶7 After the circuit court posed a brief set of questions to Summerhill,
the court asked Lins “what’s your response to this?”3 Lins attempted to explain
that he and Summerhill were parties to an ongoing family court action in Illinois,
which included Summerhill “frequently … trying to deny [Lins’] visits” with his
daughters. The court refused to consider this information, telling Lins: “Let me
tell you, sir. The judges in Illinois have nothing to say to the judges in Wisconsin.
So whatever you have to say you have to say to me right now.” Still, Lins tried to
explain that the context of the proceedings in Illinois was important to
2
It is unclear from the transcript of the injunction hearing whether either Aurora or
Gabriella were present. In any event, it is undisputed that neither child had a guardian ad litem
(GAL) appointed to represent their best interests, nor did either child provide any testimony.
3
We note that Lins was not sworn in at any time during the injunction hearing, nor did
the circuit court afford him an opportunity to cross-examine Summerhill.
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understanding “what has happened in the last two months.” The court disagreed,
telling Lins that he had “real difficulty focusing” and “you’re here right now. You
have a lot of difficulty understanding the facts.”
¶8 The circuit court proceeded to ask Summerhill where she was
currently living. When she responded that she lived in Mercer, Wisconsin, the
court told her that “[t]he Illinois courts don’t have jurisdiction over you and your
children.” Lins interjected, and the following exchange occurred:
MR. LINS: Yeah, they do.
THE COURT: [to Summerhill] You don’t have to go to
anything in Illinois.
MS. SUMMERHILL: I realize that. I did hire an attorney.
She’s working on bringing the case [up] here, Anna
Talaska.
THE COURT: Anna Talaska.
MS. SUMMERHILL: Yes, that’s correct.
THE COURT: I am satisfied by the statement of concerns
which you have raised from this fellow and the Court’s
review of the legal difficulties that this fellow has created
for himself, I am satisfied that he poses a threat to yourself
and your children, and the Court grants the injunctions as
requested for you and your children.
¶9 Lins did not move the circuit court to reconsider the injunctions, nor
did he appeal the injunctions. Instead, on November 19, 2018, he moved the court
for relief from judgment pursuant to WIS. STAT. § 806.07 (2017-18).4 As pertinent
here, Lins argued that the cases underlying the three injunctions should all be
4
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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reopened, and that the injunctions should be vacated and dismissed due to a lack
of due process.5 More specifically, Lins faulted the court for failing to receive any
documents into evidence, and also for otherwise failing to develop a record that
would allow for a meaningful review of the court’s decisions.
¶10 At a hearing, the circuit court denied Lins’ motions. The court
concluded, following arguments from both sides, that “I’ve heard lots of
procedural arguments. Which are not convincing to the fact that this Court has a
responsibility to see that children who are residents of Iron County are safe. And
the determination I made then, is a determination I make now.” Lins now appeals.
STANDARD OF REVIEW
¶11 Whether to grant relief from a judgment or order under WIS. STAT.
§ 806.07(1) is a decision within the discretion of the circuit court. Sukala v.
Heritage Mut. Ins. Co., 2005 WI 83, ¶8, 282 Wis. 2d 46, 698 N.W.2d 610. We
will sustain a discretionary decision as long as a court examined the relevant facts,
applied a proper standard of law, and used a rational process to reach a reasonable
conclusion. Id.5
Lins’ motions raised numerous other arguments, many of which he again raises on
appeal, including: (1) that Wisconsin lacked jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), see WIS. STAT. ch. 822, to make a custody
determination involving Aurora or Gabriella; and (2) that the failure to appoint a GAL to
represent Aurora’s and Gabriella’s best interests was “contrary to Wisconsin public policy.”
Given our disposition of these cases as they concern the injunctions granted in favor of Aurora
and Gabriella, we need not address these arguments. See Patrick Fur Farm, Inc. v. United
Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d 707 (court of appeals
decides cases on the narrowest possible grounds).
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DISCUSSION
¶12 As a threshold matter, we note that because Lins undisputedly failed
to timely appeal the injunctions issued against him in January 2018, the scope of
our review is limited to determining whether the circuit court properly denied
Lins’ motions for relief from judgment under WIS. STAT. § 806.07. This limited
scope of review is jurisdictional; as a general matter, “[t]he filing of a timely
notice of appeal is necessary to give the court jurisdiction over [an] appeal.” WIS.
STAT. RULE 809.10(1)(e). Still, there are exceptions to this general rule: “A
judgment or order which is void may be expunged by a court at any time. Such
right to expunge a void order or judgment is not limited by statutory requirements
for re-opening, appealing from, or modifying orders or judgments.” Kohler Co. v.
DILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695 (1977).
¶13 Here, Lins’ appellate argument concerning the injunction granted in
favor of Summerhill rests on his assertion that there was insufficient evidence
introduced at the injunction hearing to support the injunction in the first instance.
This argument is one that Lins was required to bring in a timely appeal of the
original injunction order. Again, Lins failed to appeal that order. In addition,
because this argument wholly fails to address the circuit court’s exercise of
discretion in denying Lins’ motion to reopen, and because Lins also fails to argue
that the Summerhill injunction was void at the time it was issued, we conclude we
lack jurisdiction to consider Lins’ argument.
¶14 Accordingly, we turn to the injunctions granted in favor of Aurora
and Gabriella. In contrast to Lins’ appellate argument concerning the injunction
granted in favor of Summerhill, he does contend in relation to these injunctions
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both that the circuit court erred in denying his motions for relief from judgment
and that the injunctions were void when issued. Specifically, Lins asserts that
because the court never called a hearing for these two cases, “[t]he injunctions
must be vacated and the action[s] dismissed per [WIS. STAT.] § 806.07 as they are
void as the statutory requirements to issue on an injunction, namely holding a
hearing and taking evidence, never occurred.” We therefore have jurisdiction to
consider Lins’ argument, and, for the reasons that follow, we agree that the
injunctions granted in favor of Aurora and Gabriella are void.
¶15 WISCONSIN STAT. § 806.07(1)(d) allows a court to reopen a
judgment or order when it is “void.” As relevant here, an injunction that is issued
without adhering to statutory mandates is “void” and a “nullity.” See State v.
Jankowski, 173 Wis. 2d 522, 527-28, 496 N.W.2d 215 (Ct. App. 1992).
¶16 Lins’ assertion that the injunctions granted in favor of Aurora and
Gabriella are void rests on his contention that the circuit court failed to comply
with WIS. STAT. § 813.125(3)(c). That statute provides, in pertinent part, that:
A judge or circuit court commissioner shall hold a hearing
on issuance of an injunction within 14 days after the
temporary restraining order is issued, unless the time is
extended upon the written consent of the parties, extended
under s. 801.58 (2m), or extended once for 14 days upon a
finding that the respondent has not been served with a copy
of the temporary restraining order although the petitioner
has exercised due diligence.
Id. (emphasis added).
¶17 Lins argues the circuit court plainly failed to comply with this
statutory requirement because it never held a hearing in the cases related to the
issuance of the injunctions in favor of Aurora and Gabriella. He reasons: “The
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court only called [Summerhill’s] case for hearing. Lins verified this through
attempting to obtain a transcript of any injunction hearing [for Aurora or
Gabriella’s cases, and] the court reporter indicates the children’s cases were never
called.”
¶18 In response, Aurora and Gabriella concede Lins “is correct that, on
the record, the court only called [Summerhill’s case].”6 Further, they
acknowledge that “there is good reason—as evidenced in Mr. Lins’ effort to find
the transcript in this matter—for a court to clearly call every case.” Nonetheless,
they contend the requirements of WIS. STAT. § 813.125(3)(c) were satisfied
because “the court clearly heard evidence and issued an order regarding all three
cases.”
¶19 We reject this argument for two reasons. First, it is unsupported by
citation to any legal authority, and we therefore need not consider it. See State v.
Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). Second, and more
importantly, it asks us to ignore how the circuit court’s undisputed failure to call
Aurora’s and Gabriella’s cases resulted in no record of any hearing being created
in those cases. Therefore, on the records before us for those cases, we agree with
Lins that the circuit court violated WIS. STAT. § 813.125(3)(c).
¶20 Consequently, the injunctions granted in favor of Aurora and
Gabriella were void the moment they were issued. See Jankowski, 173 Wis. 2d at
6
Aurora and Gabriella also argue that Lins forfeited any argument related to WIS. STAT.
§ 813.125(3)(c) when he did not object to the circuit court’s failure to call Aurora’s and
Gabriella’s cases for a hearing when the court called Summerhill’s case. We agree with Lins,
however, that it is impossible for a party to forfeit an objection at a hearing that never occurred,
and therefore there was no forfeiture.
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527-28. We therefore conclude the circuit court erroneously exercised its
discretion by denying Lins’ motions for relief from the injunctions in Aurora’s and
Gabriella’s cases, as it is “the duty of the court to annul an invalid judgment.” See
Kohler, 81 Wis. 2d at 25. As such, we reverse and remand with instructions to
vacate the injunctions granted in those cases.7
By the Court.—Order affirmed; orders reversed and cause remanded
with directions.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
7
We note that, even if we were to accept Aurora’s and Gabriella’s argument that the
circuit court effectively held a hearing in their cases, we agree with Lins that the court’s denial of
the motions for relief from judgment failed to apply the proper law to those cases—namely, the
UCCJEA. To explain, at the outset of the hearing on the motions for relief, the court took judicial
notice of the fact that, just one week prior, Lins and Summerhill had stipulated that “the Illinois
Court had continuing exclusive jurisdiction over child custody determinations regarding Aurora
Summerhill and Gabriella Summerhill.” Yet, the court failed to address the numerous arguments
Lins raised as to the effect this stipulation—and the UCCJEA in general—had on the court’s
jurisdiction to enter an order affecting Lins’ custody rights. See WIS. STAT. §§ 822.02(3),
822.21-822.24. The court instead summarily dismissed all of Lins’ arguments as “procedural,” a
conclusion which gave—at best—short shrift to the explicit purposes of the UCCJEA. See WIS.
STAT. § 822.01(2)(a)-(f). Consequently, we would reverse the court’s orders in Aurora’s and
Gabriella’s cases and remand for consideration under the proper legal standard, even if we did not
conclude that the injunctions were void due to the court’s failure to adhere to WIS. STAT.
§ 813.125(3)(c).
10