C.S. v. Department of Health & Social Services

DYKMAN, J.

(dissenting). The majority addresses the discretionary power of the court under sec. 46.10(2), Stats., as a part of G.S.’s argument that it would be inequitable for the state to seize his homestead. G.S. made this argument to the trial court. Though an argument based on equity is a curious way to complain that the trial court did not consider whether G.S. was dependent on the property, I conclude that the issue was raised.

Section 46.10(2), Stats., permits a trial court to release all or part of an incapacitated person’s property from the state’s claim if the incapacitated person is “lawfully dependent upon the property for [his or . her] support.” The trial court concluded that G.S.’s property should be sold without considering whether G.S. was dependent upon the property for his support. I would reverse and remand to permit it to do so.

I agree that sec. 46.10(2), Stats., does not violate art. I, sec. 17 of the Wisconsin Constitution.