v. Amy Jean Trevino ( 2021 )

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.
June 22, 2021
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. 2019AP379 Cir. Ct. No. 2018CV138
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
PETITIONER,
PETITIONER-APPELLANT,
V.
AMY JEAN TREVINO,
RESPONDENT-RESPONDENT.
APPEAL from an order of the circuit court for Lincoln County:
ROBERT R. RUSSELL, Judge. Affirmed.
Before Stark, P.J., Hruz and Brash, 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. 2019AP379
¶1 PER CURIAM. Susan1 appeals an order vacating a temporary
restraining order (“TRO”) and dismissing her petition for a harassment injunction
against Amy Trevino.2 Susan argues that the circuit court erred by: (1)
concluding that Susan could obtain the same relief in family court; and (2)
dismissing the petition under a “de-facto” summary judgment standard. For the
reasons discussed below, we affirm the order.
BACKGROUND
¶2 Susan filed a petition for a TRO and harassment injunction against
Trevino, the ex-wife of Susan’s husband. In an attachment to the petition, Susan
alleged:
Trevino has been harassing, threatening, stalking and
attempting to intimidate myself, my husband and our minor
children for the last 5 years since I started dating my
husband. She has filed false police reports stating my
husband [and] I are the ones behaving this way when in
reality it is her. Just yesterday she once again threatened to
have me dealt [with]. Due to her consistent actions of
stalking me, videotaping myself, my husband [and] our
children, threats etc. I ask the court to give me a
temp[orary] restraining order until I can plead my case to
the court for a permanent order to protect myself, my
husband [and] our children. I fear for my life, my
husband[’]s [and] our children[’]s due to her actions [and]
knowledge she may try to either herself, or through her
boyfriend [and/or] associates have us murdered and claim
self-defense.
1
Pursuant to WIS. STAT. RULE 809.81(8) (2019-20), we use a pseudonym when referring
to the petitioner in this matter. All references to the Wisconsin Statutes are to the 2019-20
version unless otherwise noted.
2
The TRO was granted by the Honorable Jay R. Tlusty, and the order vacating the TRO
and dismissing the petition for a harassment injunction was entered by the Honorable Robert R.
Russell.
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No. 2019AP379
¶3 On the same day the petition was filed, the circuit court issued an
ex parte TRO against Trevino, effective until the time and date of the injunction
hearing. Trevino moved to dismiss the petition, alleging that “despite being
admonished in [c]ourt not to initiate contact” with Trevino, Susan drove her
husband’s and Trevino’s children to an exchange point with Trevino. After a
hearing, the court vacated the TRO and dismissed the petition for an injunction
hearing. The court also denied Susan’s contemporaneous motion for
reconsideration. This appeal follows.
DISCUSSION
¶4 To grant a harassment injunction under WIS. STAT. § 813.125, the
circuit court must find “reasonable grounds to believe that the respondent has
engaged in harassment with intent to harass or intimidate the petitioner.”
Sec. 813.125(4)(a)3. Relevant to this appeal, “harassment” means “[e]ngaging in
a course of conduct or repeatedly committing acts which harass or intimidate
another person and which serve no legitimate purpose.” Sec. 813.125(1)(am)2.
¶5 Whether a respondent engaged in harassment presents a mixed
question of fact and law. M.Q. v. Z.Q., 152 Wis. 2d 701, 708, 449 N.W.2d 75(Ct. App. 1989). We will not set aside the circuit court’s factual findings unless
they are clearly erroneous, see WIS. STAT. § 805.17(2), though we independently
review the circuit court’s conclusion, based on the established facts, as to whether
the applicable reasonable grounds exist. M.Q., 152 Wis. 2d at 708. Whether to
grant an injunction, however, is within the sound discretion of the circuit court,
and our review ultimately is limited to whether that discretion was properly
exercised. Welytok v. Ziolkowski, 2008 WI App 67, ¶23, 312 Wis. 2d 435, 752
N.W.2d 359. Our task as the reviewing court is to search the record for reasons to
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No. 2019AP379
sustain the circuit court’s exercise of discretion. Hughes v. Hughes, 223 Wis. 2d
111, 120, 588 N.W.2d 346 (Ct. App. 1998).
¶6 On appeal, Susan argues that the circuit court erroneously exercised
its discretion by vacating the TRO and dismissing the matter on grounds that
Susan could obtain protection in a concurrent family court proceeding to which
she is not a party. While it is true that Susan is not a named party in the family
court action, the circuit court’s decision reflects a more nuanced discussion of the
family court’s possible impact on the present matter. The court’s discussion of the
family court proceeding was part of a larger discussion regarding the substantive
allegations Susan made and the protections ultimately sought.
¶7 At the hearing on Trevino’s motion to dismiss, Trevino asserted that
if, as Susan alleged, she was in fear for her life because of Trevino, she should not
have come to the child exchanges. Trevino further argued it was unfair for Susan
to place Trevino in jeopardy of arrest for violating the TRO by causing contact
between the two of them. According to Trevino, Susan was using the TRO as a
sword rather than a shield and, in effect, baiting Trevino to violate the TRO.
Emphasizing the “vagueness” of the allegations made in Susan’s petition for a
harassment injunction, Trevino also argued that she should not be subjected to the
fear of arrest when Susan has not shown a “course of conduct” justifying a
harassment injunction.
¶8 In vacating the TRO and dismissing the petition, the circuit court
noted that a family court order requiring the parties to remain in their vehicles
during child exchanges protected the parties from situations that give rise to the
filing of civil cases. The court further noted that “many of the issues that have
been brought to the [c]ourt’s attention today have either been dealt with in family
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No. 2019AP379
court or will be dealt with in family court very soon.” The court recognized,
however, that the family court order did not necessarily protect the parties from a
TRO, and it did not know what would have happened to Trevino if Susan had
called law enforcement at the exchange point. The court nevertheless recounted
that in Susan’s pre-hearing motion for a continuance to complete discovery, Susan
conceded that if the family court could provide a mechanism—such as an anti-
harassment provision that would prevent all but “legitimate” communication
between her and Trevino—she “would feel secure.”
¶9 Having considered the petition, the motion to dismiss, Susan’s own
conduct, and the concession made in her pre-hearing motion, the circuit court
concluded that “these are issues that can be addressed in family court.” The court
added that an injunction was not necessary to protect Susan from the conduct
described in the petition. To that end, the court noted the “very general”
allegations made in Susan’s petition, commenting that “if there was any merit to
these allegations contained in the petition that [Susan] would not have gone to
these exchanges without another adult present.” Thus, it appears that the court, in
effect, reversed the original decision to grant the TRO because the allegations in
the petition were poorly pled (and no greater support had been provided
subsequent to its filing).
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No. 2019AP379
¶10 As recounted by Trevino in her brief, Susan was told to amend her
pleading at a November 21, 2018 hearing, but the petition was never amended.3
Furthermore, many of the vague allegations of harassment involved individuals
other than Susan. With respect to Susan’s claims of false police reports, those are
issues for the police to resolve. Moreover, those allegations involving Susan’s
husband and their children would be best handled in the family court proceeding.
Based on the record, we conclude the court reasonably determined that Susan’s
vague allegations, to the extent they applied to her, were insufficient to support her
claim for a harassment injunction.
¶11 Susan alternatively contends that the circuit court erred by
dismissing the petition under a “de facto” summary judgment standard. At the
outset of the hearing on the motion to dismiss, Susan’s counsel questioned
whether witness testimony was necessary, as Susan conceded that she “show[ed]
up for one or two exchanges on behalf of” her husband. The parties, therefore,
agreed to make offers of proof, with Trevino’s counsel adding that “if someone
wants testimony I can put it on.” Thus, even assuming the circuit court utilized a
“de facto” summary judgment standard and erred by doing so, Susan invited the
error. Therefore, we will not review it. See Binsfeld v. Conrad, 2004 WI App 77,
¶26, 272 Wis. 2d 341, 679 N.W.2d 851.
3
Susan does not dispute this claim, and the transcript of the November 21, 2018 hearing
is not in the record. It was Susan’s responsibility, as the appellant, to provide this court with a
record sufficient to allow review of the issues raised, including any necessary transcript. See
Butcher v. Ameritech Corp., 2007 WI App 5, ¶35, 298 Wis. 2d 468, 727 N.W.2d 546 (2006).
We assume that any missing transcript would support the circuit court’s findings of fact and
discretionary decisions. See Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226(Ct. App. 1993).
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No. 2019AP379
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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