Kimberly C. Niemi v. Martin B. Hying

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.
March 30, 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. 2019AP1433 Cir. Ct. No. 2006FA6891
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN RE THE MARRIAGE OF:
KIMBERLY C. NIEMI F/K/A KIMBERLY HYING,
JOINT-PETITIONER-RESPONDENT,
V.
MARTIN B. HYING,
JOINT-PETITIONER-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
DENNIS FLYNN, Reserve Judge. Affirmed and cause remanded with directions.
Before Brash, P.J., Dugan and Donald, 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. 2019AP1433
¶1 PER CURIAM. In this post-divorce litigation, Martin Hying, pro
se, appeals a circuit court order entered on April 23, 2019, determining that he
owes the guardian ad litem $2,663.08 in attorney’s fees. We affirm the order. We
also conclude that Hying’s appeal is frivolous. We therefore remand this matter to
the circuit court for a determination of costs, fees, and reasonable attorney’s fees
related to this appeal, and we impose a limitation on Hying’s future litigation in
this court.
Background
¶2 Hying and Kimberly Niemi f/k/a/ Hying divorced in November
2007. Hying has pursued numerous postjudgment appeals and writs, and we have
determined that three of his appeals were frivolous.1 Most recently, we reviewed a
circuit court order arising out of a contempt proceeding in which the circuit court
permitted Hying to avoid incarceration by making certain payments to the
guardian ad litem and to Niemi’s attorney. See Niemi v. Hying (Hying X),
No. 2017AP313, unpublished op. and order (WI App July 31, 2018). We
affirmed, and we concluded that the appeal was frivolous. See id. at 2. Following
remittitur, Attorney Phillip Arieff, who serves as the current guardian ad litem for
1
The postjudgment litigation in this matter includes: Hying v. Hying (Hying I)
No. 2010AP914, unpublished slip op. (WI App Apr. 6, 2011), State ex rel. Hying v. Circuit
Court (Hying II), No. 2011AP1899-W, unpublished op. and order (WI App Sept. 28, 2011),
Hying v. Hying (Hying III), No. 2011AP1430, unpublished slip op. (WI App May 30, 2012),
Hying v. Hying (Hying IV), No. 2012AP2019, unpublished op. and order (WI App Feb. 7, 2013),
Hying v. Hying (Hying V), No. 2014AP1780, unpublished slip op. (WI App Jan. 26, 2016), State
ex rel. Hying v. Circuit Court (Hying VI), No. 2016AP317-W, unpublished op. and order (WI
App May 23, 2016) , State ex rel. Hying v. Circuit Court (Hyng VII),No. 2016AP1896-W,
unpublished op. and order (WI App Oct. 13, 2016) , Hying v. Hying (Hying VIII-IX), Nos.
2016AP137 and 2016AP1446, unpublished op. and order (WI App Aug. 16, 2017)(deemed
frivolous), and Niemi v. Hying(Hying X), No. 2017AP313, unpublished op. and order (WI App
July 31, 2018) (deemed frivolous).
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No. 2019AP1433
the parties’ minor child, filed a motion in November 2018 to adjudicate guardian
ad litem fees.
¶3 The circuit court held a hearing on March 20, 2019, and received
testimony and other evidence from Hying and from Attorney Arieff. The circuit
court credited Attorney Arieff’s testimony that he charges an hourly rate in this
case that is at the low end of the range of rates normally charged in Milwaukee
County by guardians ad litem with his experience and credentials. The circuit
court also credited Attorney Arieff’s testimony that his work in this case was
necessary in the performance of his role as advocate for the best interests of the
minor child and that $2,663.08 was Hying’s share of the fee for that work. The
circuit court therefore awarded Attorney Arieff that amount and required Hying to
pay the fee at the rate of $150 per month. Hying appeals.
Discussion
¶4 Compensation of a guardian ad litem rests in the discretion of the
circuit court. See Lacey v. Lacey, 45 Wis. 2d 378, 389, 173 N.W.2d 142 (1970);
see also WIS. STAT. § 767.407(6) (2017-18).2 The standard that we apply when
reviewing discretionary decisions is well known and requires only a brief
summary here. We will uphold a discretionary decision if the circuit court
considered the relevant facts, applied a proper legal standard, and reached a
reasonable conclusion. See State v. Edmunds, 2008 WI App 33, ¶8, 308 Wis. 2d
374, 746 N.W.2d 590. We will not disturb a circuit court’s factual findings unless
they are clearly erroneous. See Dickman v. Vollmer, 2007 WI App 141, ¶14, 303
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2019AP1433
Wis. 2d 241, 736 N.W.2d 202. “We do not reweigh the evidence or reassess the
witnesses’ credibility.” Id.¶5 Hying first contends that Attorney Arieff was not entitled to the fees
he incurred in responding to a motion that Hying filed in June 2018, in which
Hying alleged that Attorney Arieff was in contempt of court. 3 Hying begins by
summarizing a 2014 circuit court order that requires him to pay a $1,500 deposit
with any motion he files, and he notes that the money is “to apply to any GAL fees
or attorney’s fees in connection with the motion.” Hying then emphasizes that he
made the required deposit when he filed the June 2018 contempt motion and that
the circuit court signed an order in July 2018 directing the return of the deposit to
him. According to Hying, the order returning the deposit constituted an “implicit
and understood remedial sanction” against the guardian ad litem and a
determination that the guardian ad litem was not entitled to any fees in connection
with the contempt motion.
¶6 The circuit court considered and rejected Hying’s arguments. It
described Hying’s position as “a contorted approach” that “simply makes no
sense.” The circuit court went on to explain that it returned the deposit to Hying
as a matter of equity because $1,500 is “a lot of money to have sitting around.”
Hying now renews his arguments in this court, but we too conclude that they are
meritless.
¶7 First, the rule is well settled that we normally defer to a circuit
court’s interpretation of its own orders. See Thorp v. Town of Lebanon, 225
3
The record reflects that the circuit court entered an order dismissing the motion for
contempt.
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No. 2019AP1433
Wis. 2d 672, 683, 593 N.W.2d 878 (Ct. App. 1999), aff’d, 2000 WI 60, 235
Wis. 2d 610, 612 N.W.2d 59. Hying fails to cite any legal authority demonstrating
that we should not apply that rule here.
¶8 Second, Hying fails to cite any legal authority supporting his theory
that the return of the deposit constituted either a sanction or an order that the
guardian ad litem was not entitled to fees. Indeed, the sole citation in this portion
of Hying’s submission is a footnote directing our attention generally to Evans v.
Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304. Hying, however,
does not point us to a page or paragraph in that case to explain the purpose of his
footnote, nor he does offer a quotation or an explanation showing how Evans
supports his contentions. Our review of Evans satisfies us that it does not in any
way bolster Hying’s claims that, by returning his deposit, the circuit court
sanctioned the guardian ad litem or prospectively rejected the guardian ad litem’s
request for fees. As an experienced pro se litigator, Hying knows or should know
that in the absence of adequate briefing and supporting authority, his claims lack
merit. See State v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App.
1994).
¶9 Hying next argues that the guardian ad litem is not entitled to certain
fees because they arise from Hying’s allegations that the guardian ad litem had
neglected his duties. Hying states: “fees related to a motion for failure to perform
court ordered duties are not ‘necessary work’ and repeatedly filing them with
Hying and the court is a fraudulent act [sic].” The circuit court determined as a
factual matter, however, that all of the guardian ad litem’s fees were incurred “for
services provided under [o]rder of the [c]ourt” and further found “that there is not,
and has not been since being appointed, anything ‘fraudulent’ in regard to
Attorney Arieff’s GAL billings.” Hying disagrees with those findings, but he fails
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No. 2019AP1433
to offer a citation to any legal authority supporting his theses that the billings
constituted a fraud or that the guardian ad litem’s work was unnecessary.
Accordingly, the arguments lack merit. See id.¶10 Hying next argues that a portion of a 2016 payment he made to
Niemi’s counsel should have been but was not “forwarded [to Attorney Arieff]
and thus the claim of nonpayment resides with [Niemi’s counsel] and not Hying.”
The circuit court disagreed. It found that the credible evidence did not establish
any failure by Niemi’s counsel to distribute guardian ad litem payments
appropriately. The only authority that Hying offers to support his contrary
position is contained within his conclusory assertion that “[g]arnishment (Wis
Stat. 812) and wage assignment (Wis. Stat. 788.30) statues [sic] exist to avoid this
redundant litigation and protect the debtor, Hying.” This court, however, has told
Hying on multiple occasions that efforts to enforce his financial obligations in this
case are properly addressed as family law matters. See Hying X, No. 2017AP313
at 9 (quoting Hying v. Hying (Hying VIII-IX), Nos. 2016AP137 and
2016AP1446, unpublished op. and order (WI App Aug. 16, 2017)). In light of our
discussion in Hying VIII-IX and Hying X, Hying knew or should have known that
our determination in those cases constitutes the law of this case and therefore
governs here. See Laatsch v. Derzon, 2018 WI App 10, ¶40, 380 Wis. 2d 108,
908 N.W.2d 471. Hying does not present any argument or authority from which
we might reach a contrary conclusion. Accordingly, his argument is meritless.
¶11 Hying next argues that Attorney Arieff and the circuit court “relied
on unsubstantiated evidence” to support the claim for guardian ad litem fees.
Specifically, Hying complains about the hearing’s exhibit six, a bill dated
January 14, 2011. The bill reflects that it was prepared by the predecessor
guardian ad litem, Attorney Martin Gagne, and by its terms the bill seeks
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No. 2019AP1433
$13,010.25 from Hying for fees incurred through January 13, 2011. Attorney
Arieff explained that he offered exhibit six to show that Hying had not paid
Attorney Gagne the amounts owed to him and to “undermine[] some of [Hying’s]
arguments about Hying’s specific aversion to [Attorney Arieff].... [T]here’s an
aversion to any guardian ad litem that does not recommend in a way that [Hying]
does not feel is favorable to him.” Hying objected to admission of exhibit six,
alleging that the 2011 bill was not previously filed in this case. The circuit court
overruled the objection. Hying seeks relief on the ground that the circuit court
erred in admitting the exhibit.
¶12 Hying’s argument is meritless. As an experienced pro se litigator,
Hying knows or should know that “[e]rror may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party is
affected.” See WIS. STAT. § 901.03(1). Hying also knows or should know that the
admission of exhibit six as evidence did not adversely affect his substantial rights
because the exhibit merely duplicated facts established elsewhere in the record.
Specifically, the record shows that the circuit court entered an order on March 30,
2011, finding that Hying, by his own admission, had not made a payment to
Attorney Gagne since September 20, 2008, and further finding that “in his
proposed findings of fact and order in this matter, Attorney Gagne submitted an
updated bill ... through January 13, 2011, for a total owing Mr. Gagne in the
amount of $13,010.25.”4 The March 30, 2011 order also included the circuit
court’s finding that, upon review of Attorney Gagne’s bills, each was “reasonable
4
The record shows that on January 14, 2011, Attorney Gagne submitted a letter to the
circuit court stating that he was enclosing a copy of his proposed findings of fact and conclusions
of law and had included a copy of his current bill.
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No. 2019AP1433
and consistent with local practice.” Moreover, when Hying pursued an appeal of
the March 30, 2011 order, our affirmance expressly noted his admission to the
circuit court that “he was not paying the guardian ad litem’s bills ... because, in his
view, the guardian ad litem was engaging in ‘contemptuous behavior.’” See
Hying v. Hying (Hying III), No. 2011AP1430, unpublished slip op. ¶21 n.9 (WI
App May 30, 2012) (italics added).
¶13 Accordingly, exhibit six duplicated circuit court findings from 2011
that this court affirmed on appeal. Hying offers no legal authority demonstrating
that admitting the exhibit adversely affected his rights under these facts. His
allegation is thus wholly meritless.5 See Flynn, 190 Wis. 2d at 39 n.2.
¶14 Hying next claims that the circuit court judge had “an obligation to
recuse himself for the appearance of bias” pursuant to WIS. STAT. § 757.19(2)(g).
Hying, however, did not move the circuit court to recuse itself from the March 20,
2019 proceeding.6 As an experienced pro se litigator, Hying knows or should
5
For the sake of completeness, we briefly address Hying’s contention that exhibit six
was “absent from the record for eight years” and was “fabricated by the court” on January 22,
2019. Hying offered no proof in support of these allegations. We observe that the record in this
case reflects that numerous circuit court documents were saved electronically in January 2019.
Among them were items that the circuit court clerk described in a January 22, 2019 docket entry
as “other papers” and characterized as “unidentified/unattached documents.” The record that
reached this court further reflects that these papers included the January 2011 Gagne bill. It is not
unusual for large court records to include unattached and unidentified documents that the clerk
cannot more specifically connect to an event in the case. Indeed, the record reflects that the
circuit court clerk routinely transmitted the record for Hying’s past appeals with an envelope
containing “unidentified/unattached documents.” In sum, Hying’s assertion that the circuit court
“fabricated” a document in January 2019, is merely a scurrilous allegation and is wholly lacking
in merit. Cf. Puchner v. Hepperla, 2001 WI App 50, ¶5, 241 Wis. 2d 545, 625 N.W.2d 609.
6
Hying unsuccessfully moved the circuit court to impanel an advisory jury on the
ground that the judge “had a history of what [Hying] consider[ed] biased behavior in regards to
the guardian ad litem.” Hying did not, however, ask the circuit court to recuse itself. On appeal,
Hying does not renew his claim that he was entitled to an advisory jury.
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No. 2019AP1433
know the well-established rule that “[i]f the appellant has failed to present an
issue, he may not raise it for the first time on appeal as a matter of right and have it
considered on appeal.” See Gauer v. Gauer, 34 Wis. 2d 451, 458, 149 N.W.2d
533 (1967). This rule has particular weight here, because “the determination of
the existence of a judge’s actual or apparent inability to act impartially in a case is
for the judge to make.” State v. American TV & Appliance of Madison, Inc., 151
Wis. 2d 175, 183, 443 N.W.2d 662 (1989). Accordingly, this claim lacks merit.
¶15 Hying appears to argue in his reply brief that he is entitled to “full
reversal of th[e circuit court’s] decision” because he was not served with a
February 18, 2019 notice of the March 20, 2019 hearing. Hying did not make this
argument in his opening brief. Hying also did not move the circuit court to deny
the guardian ad litem’s motion for fees on the ground that Hying did not receive
the February 18, 2019 notice. As an experienced pro se litigant, Hying knows or
should know that he may not present an argument as a matter of right for the first
time in his reply brief. See Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶30
9
No. 2019AP1433
n.6, 305 Wis. 2d 658, 741 N.W.2d 256. Accordingly, a claim for relief based on
the alleged error is wholly meritless.7
¶16 Finally, Hying appears to suggest that, because the February 18,
2019 hearing notice was not included in the appellate record, the notice is a “non-
public” document that has been hidden from view. He goes on to suggest that this
constitutes grounds for reversal. As an experienced pro se litigator, Hying knows
or should know that the appellate record is not necessarily identical to the circuit
court record. The former is required to include only those documents that satisfy
WIS. STAT. RULE 809.15(1). If Hying believed that the February 18, 2019 notice
fell within the scope of RULE 809.15(1), or if he believed that the notice was
important to his appellate claims, he knew or should have known that he could
move to supplement the appellate record with that document. See
RULE 809.15(3). Moreover, Hying knew or should have known that when a
document is missing from the appellate record, we assume that the document
supports the circuit court’s ruling. See Gaethke v. Pozder, 2017 WI App 38, ¶36,
7
Again for the sake of completeness, we note that Hying alleged early in the March 20,
2019 hearing that he “did not recall having received” the February 18, 2019 notice of hearing, and
the circuit court did not challenge the scope of his recollection. The circuit court established,
however, that its clerk sent the notice of hearing to Hying at his correct mailing address.
Accordingly, Hying’s assertion that he is entitled to relief based on a failure of service is
meritless: “[s]ervice by mail is complete upon mailing.” See WIS. STAT. § 801.14(2). Moreover,
Hying does not demonstrate that he has a meritorious basis for relief even if, as he implies, he did
not receive the notice that the clerk mailed to him. As an experienced pro se litigant, Hying
knows or should know the long-established rule that “[t]o entitle an appellant to prevail on his
appeal it is necessary for him to show, not only that the error complained of was committed, but
that it operated to his prejudice.” See Kalb v. Luce, 239 Wis. 256, 260, 1 N.W.2d 176 (1941).
Here, Hying fails to show how he was prejudiced by his alleged failure to receive the hearing
notice. He conceded at the hearing that he knew about the proceeding in advance because he
monitored the circuit court’s electronic docket. Further, the circuit court denied the guardian ad
litem’s motion to enforce the pretrial deadline for filing documents that was included in the
hearing notice. Instead, the circuit court admitted Hying’s proposed exhibits on the day of the
hearing.
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No. 2019AP1433
376 Wis. 2d 448, 899 N.W.2d 381. Accordingly, Hying’s suggestion that he is
entitled to a reversal of the April 23, 2019 order because the hearing notice is
absent from the appellate record is wholly meritless.
¶17 We turn to the question of whether Hying’s appeal is frivolous.8 We
may declare an appeal frivolous if we conclude that Hying “knew, or should have
known, that the appeal ... was without any reasonable basis in law or equity and
could not be supported by a good faith argument for an extension, modification or
reversal of existing law.” See WIS. STAT. RULE 809.25(3)(c)2. An appeal is
frivolous if we determine that it is frivolous in its entirety. See Howell v.
Denomie, 2005 WI 81, ¶9, 282 Wis. 2d 130, 698 N.W.2d 621.
¶18 We conclude that Hying’s appeal is entirely frivolous. Our
discussion of the issues presented reflects that Hying’s arguments lack any merit
and that Hying, as an experienced pro se litigator, knew or should have known that
they were meritless. We have not in the past, and we will not now, excuse
Hying’s frivolous litigation merely because he is a pro se party. The purposes of
sanctions include discouraging frivolous actions, see Holz v. Busy Bees
Contracting, Inc., 223 Wis. 2d 598, 609, 589 N.W.2d 633 (Ct. App. 1998), and
compensating those forced to defend frivolous litigation, see Jandrt v. Jerome
Foods, Inc., 227 Wis. 2d 531, 576-77, 597 N.W.2d 744 (1999). The purposes are
the same regardless of whether the party opposing the frivolous litigation is
represented by counsel or pro se, and, to the extent that sanctions against Hying to
date have been unsuccessful in accomplishing deterrence, they are all the more
8
Niemi, by counsel, filed a respondent’s brief and a motion seeking costs and fees on the
ground that the appeal was frivolous. Attorney Arieff filed a statement alleging that the appeal
was frivolous and advising that, to minimize costs to the parties, he would not file a brief.
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No. 2019AP1433
necessary to ensure that he compensates opposing parties for the needless burden
he imposes upon them. Accordingly, we remand this matter to the circuit court
with directions to determine Niemi’s reasonable costs, fees, and attorney’s fees
incurred in the instant appeal and to enter an order requiring Hying to pay those
costs, fees, and attorney’s fees.
¶19 We will also limit Hying’s future activity in this court until the
outstanding fees owed to the guardian ad litem pursuant to the circuit court’s
April 23, 2019 order are paid in full. “A court faced with a litigant who brings
frivolous litigation has the authority to limit that litigant’s access to the court.”
Puchner, 241 Wis. 2d 545, ¶7.
¶20 Hying’s frivolous litigation consumes finite judicial resources and
harms other litigants by delaying this court in its review of their meritorious
claims. See id. Accordingly, to aid the effective and efficient administration of
justice, we exercise our inherent authority to impose limitations on Hying’s
litigation. Specifically, Hying may not, without first obtaining leave of this court,
pursue any motion in this court or any appeal in which either Kimberly Niemi
f/k/a/ Hying or Attorney Phillip Arieff is a respondent or an interested party unless
Hying files with this court a document that the circuit court has signed confirming
that Hying has paid the entirety of the $2,663.08 in guardian ad litem fees that the
circuit court required Hying to pay in its order of April 23, 2019. No identified or
potential respondent to Hying’s litigation in which Niemi or Attorney Arieff is a
respondent or an interested party will be required to respond to any motion in this
court or to any appeal that Hying files unless and until this court has either
requested a response from such entity or granted Hying permission to proceed.
We emphasize that the limitations imposed here are in addition to any other
limitations imposed on Hying’s litigation.
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No. 2019AP1433
By the Court.—Order affirmed and cause remanded with directions.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
13