Ted B. Vallejos v. Gary Kramschuster

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.
September 29, 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 No. 2019AP2424 Cir. Ct. No. 2012FA5081
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN RE THE FINDING OF CONTEMPT IN
IN RE THE PATERNITY OF S.L.V.K.:
TED B. VALLEJOS,
RESPONDENT,
V.
GARY KRAMSCHUSTER AND SANDRA KRAMSCHUSTER,
APPELLANTS.
APPEAL from an order of the circuit court for Milwaukee County:
CAROLINA STARK, Judge. Affirmed.
No. 2019AP2424
¶1 DUGAN, J.1 Gary and Sandra Kramschuster appeal the order of the
Milwaukee County Circuit Court finding that Ted Vallejos purged an order of
contempt by making efforts to have his child psychologically evaluated. This court
concludes that the circuit court properly found Vallejos was no longer in contempt
of court and affirms the circuit court’s order.
BACKGROUND
¶2 The Kramschusters are the maternal grandparents of the child of Ted
Vallejos and Stephanie Prsytarski, and they were given visitation rights starting with
a circuit court order from December 18, 2013. As part of the December 18, 2013
order, the child was required to undergo a psychological evaluation.
¶3 Following a series of hearings addressing this and the multiple other
matters that arose over the custody and placement of the child, the circuit court
issued another order on November 14, 2014, which provided the Kramschusters
with supervised visitation. As part of this order, Vallejos was required to have the
child psychologically evaluated “to assess the impact of the separation from mother
and maternal grandparents and follow any recommendations made” as a result of
that evaluation. A subsequent decision by a court commissioner instructed Vallejos
to complete the evaluation by July 21, 2015.
¶4 On August 1, 2018, the Kramschusters filed a motion to enforce the
order for grandparent visitation from November 14, 2014, and, as is relevant here,
argued that Vallejos should be found in contempt for failing to have the child
evaluated. Following a hearing on the matter, the circuit court found Vallejos in
contempt and required Vallejos to have the evaluation conducted by June 15, 2019,
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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(h) (2017-18).
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No. 2019AP2424
with proof of the evaluation filed by July 1, 2019. The circuit court’s order stated
that, should Vallejos be unable to complete the evaluation, he must log his efforts
to do so, or face a forfeiture. The circuit court set a review hearing for July 10,
2019. After the July 10 review hearing, the circuit court imposed a forfeiture for
Vallejos’s failure to complete the evaluation, or log his efforts taken, and set another
review hearing for November 5, 2019.
¶5 On October 17, 2019, Vallejos filed a list of forty-two therapists he
had contacted and their responses to his request for an evaluation. As indicated on
the list and confirmed at the November 5 review hearing, many of the therapists
either did not respond or declined to conduct the evaluation. Based on the list of
therapists and testimony provided by Vallejos regarding his efforts to find a
therapist willing to conduct the evaluation, the circuit court found that Vallejos had
purged the contempt and issued an order to that effect on November 19, 2019:
The respondent satisfied the contempt purge conditions, and
as a result, the Motion to Enforce Grandparent Visitation
filed on August 1, 2018, has come to a final resolution. The
issue regarding the respondent’s failure to have the child
evaluated by a child psychologist (as required by paragraph
5 of the court orders issued on November 14, 2014) has been
litigated to a final order and shall not be litigated again.
¶6 The Kramschusters appealed the circuit court’s order finding that
Vallejos purged the contempt.
DISCUSSION
¶7 On appeal, the Kramschusters first argue that the circuit court erred
by allowing Vallejos to appear by phone because they did not stipulate to such an
appearance and even objected to it. In support of their position, they point to WIS.
STAT. § 807.13(2), which allows a party to appear by phone at an evidentiary
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No. 2019AP2424
hearing under certain circumstances. The Kramschusters additionally argue that the
circuit court erred because its finding is supported by hearsay given that Vallejos
did not appear in person and the list of therapists was not submitted during the
hearing as an exhibit. The Kramschusters lack legal authority to support these
arguments and have not properly developed them. This court “cannot serve as both
advocate and judge” and declines to address these arguments any further as they are
unsupported and undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992).
¶8 The Kramschusters next argue that the circuit court erred (1) because
its finding improperly modified the November 14, 2014 order without a motion by
a party filed pursuant to WIS. STAT. § 767.451 and (2) because the circuit court
should have imposed a sanction vacating the November 14, 2014 order as a purge
condition. This court reviews the circuit court’s exercise of its contempt power for
an erroneous exercise of discretion. Benn v. Benn, 230 Wis. 2d 301, 308, 602
N.W.2d 65 (Ct. App. 1999). The purpose of a purge condition is to bring a party
into compliance with a court order. See Frisch v. Henrichs, 2007 WI 102, ¶35, 304
Wis. 2d 1, 736 N.W.2d 85.
¶9 As the circuit court recognized in its ruling purging the contempt, the
November 14, 2014 order is still very much in tact and Vallejos must continue his
efforts to complete the evaluation. In other words, the purge condition set by the
circuit court was intended to bring Vallejos into compliance with the order by either
completing the evaluation or taking steps to complete it. The purge condition was
not intended to modify the order to have the evaluation done. The circuit court
considered that Vallejos had contacted forty-two therapists, applied the law that a
purge condition is intended to bring a party into compliance with a court order, and
reached a conclusion that a reasonable judge could reach in finding that Vallejos
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No. 2019AP2424
purged the contempt. The circuit court also applied the proper legal standard in
denying the Kramschusters’ request to modify the November 14, 2014 order
through a purge condition. This court, therefore, concludes that the circuit court did
not erroneously exercise its discretion in finding that Vallejos purged the contempt,
and there was no improper modification of the November 14, 2014 order.
CONCLUSION
¶10 This court concludes that the circuit court did not err in finding that
Vallejos purged the contempt. Accordingly, the circuit court’s order is affirmed.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)(5).
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