Tatiana S. Laiter v. Michael Lyubchenko

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.
May 13, 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. 2019AP1793 Cir. Ct. No. 2016FA752
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
IN RE THE FINDING OF CONTEMPT IN:
TATIANA S. LAITER,
PETITIONER-RESPONDENT,
V.
MICHAEL LYUBCHENKO,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Affirmed.
No. 2019AP1793
¶1 NASHOLD, J.1 Michael Lyubchenko appeals a June 2019 order
finding him in contempt for failure to follow a February 2018 order that required
him to amend his 2015 income tax filings and file a joint 2015 tax return with his
former spouse, Tatiana Laiter, and share equally with Laiter any refund, liability,
and costs to prepare the taxes. Lyubchenko argues that the circuit court erred by:
(1) ordering him to pay Laiter half of her 2015 individual tax liability; (2) “using
wrong numbers in calculating Laiter’s 2015 tax payments”; (3) “ordering
Lyubchenko to pay one half of Laiter’s self-employment taxes and failing to take
into account [the] parties’ [full] joint liability in 2015”; (4) not equally dividing a
2015 Wisconsin tax refund; (5) ordering Lyubchenko to pay Laiter’s accountant
tax preparation fees; (6) “imposing remedial sanctions on Lyubchenko when he
was not in continuing contempt on an already moot issue”; and (7) determining the
amount of Laiter’s attorney and accountant fees. I reject Lyubchenko’s arguments
and affirm the circuit court’s contempt order.
BACKGROUND
¶2 Michael Lyubchenko and Tatiana Laiter were married in 1998.
While the parties were still married, Lyubchenko filed a 2015 individual federal
tax return taking for himself deductions and credits to which the parties were both
entitled, including claiming the parties’ two children and claiming Laiter’s father
as a dependent. This resulted in Lyubchenko receiving a $17 federal tax refund.
¶3 As a result of Lyubchenko filing an individual return, Laiter filed her
own individual return, resulting in her having to pay a total of $9,911.97 in total
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(h) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
No. 2019AP1793
tax liability, an amount that would have been lower had the parties filed a joint
return. Laiter filed for divorce on April 20, 2016.
¶4 In August 2017, a contested divorce hearing was held. One of the
issues addressed at the hearing was the 2015 tax liability Laiter incurred as a result
of Lyubchenko filing an individual tax return and taking for himself the available
joint credits and deductions. On February 5, 2018, the circuit court entered a Final
Decision and Order resolving “all remaining issues between the parties.” A
section of the order captioned “2015-2016 Taxes” provided the following:
[Lyubchenko] filed 2015 taxes claiming both
children and leaving [Laiter] with a tax liability.
[Lyubchenko] is ordered to amend the 2015 taxes and file
jointly with [Laiter]. Any refund/liability shall be shared
equally by the parties. Any cost to prepare the taxes will be
shared equally.
¶5 On February 26, 2018, Lyubchenko filed a motion to reconsider the
February 2018 order. Lyubchenko’s motion to reconsider did not challenge the
circuit court’s order pertaining to the 2015-2016 taxes. Moreover, Lyubchenko
acknowledges in his appellant’s brief that “after careful consideration” he
“decide[d] not to appeal this particular ruling.” Lyubchenko’s motion to
reconsider was denied.
¶6 On May 23, 2018, the circuit court filed its Findings of Fact,
Conclusions of Law, and Judgment of Divorce. As with the February 2018 order,
the May 2018 divorce judgment contained the following provision:
[Lyubchenko] shall amend the 2015 taxes and file
jointly with [Laiter]. Any refund or liability shall be shared
equally by the parties. Any cost to prepare the taxes will be
shared equally.
3
No. 2019AP1793
¶7 Lyubchenko appealed the May 2018 divorce judgment but did not
raise any issues in his appeal pertaining to the circuit court’s 2015 tax decision.
This court issued an opinion in that appeal in November 2019. See Laiter v.
Lyubchenko, No. 2018AP624, unpublished slip op. (WI App Nov. 7, 2019).2
¶8 After the February 2018 order was filed, Laiter had difficulty getting
Lyubchenko to file or sign an amended return. On January 3, 2019, Laiter filed a
contempt action and shortly thereafter, Lyubchenko signed an amended 2015 joint
tax return prepared by Laiter’s accountant, Judith Bacha.
¶9 In March 2019, a contempt hearing was held before a circuit court
commissioner, at which Lyubchenko was represented by counsel. Following the
hearing, the court commissioner found Lyubchenko in contempt for his failure to
sign the amended return as ordered. The court commissioner also found that
Laiter had paid $9,911.97 in individual tax liability for 2015, and ordered
Lyubchenko to reimburse her $4,955.99 for his half of that amount. The court
commissioner also determined that Laiter incurred $1,500 in reasonable attorney
fees for having to bring the contempt action and ordered Lyubchenko to pay
Laiter’s attorney fees, along with $355.50 for his half of the accounting fees
incurred for Bacha’s tax return preparation.
2
This court’s opinion noted that Lyubchenko purported to appeal the circuit court’s
February 2018 order and the denial of his motion for reconsideration but that his appeal was
premature in light of the circuit court’s subsequent May 2018 divorce judgment. See Laiter v.
Lyubchenko, No. 2018AP624, unpublished slip op. (WI App Nov. 7, 2019). This court applied
WIS. STAT. § 808.04(8) (2017-18) to preserve jurisdiction over the May 2018 divorce judgment.
Id., ¶3 n.1. Lyubchenko also appealed from a circuit court order entered on February 10, 2020,
and this court issued an opinion in that case affirming the circuit court’ order. See Laiter v.
Lyubchenko, No. 2020AP730, unpublished slip op. (WI App Mar. 18, 2021). Thus, this opinion
is the third issued by this court in response to Lyubchenko’s appeals stemming from the parties’
divorce.
4
No. 2019AP1793
¶10 Lyubchenko, through his attorney, requested de novo review. At the
commencement of the May 2019 de novo hearing, the circuit court allowed
Lyubchenko’s attorney to withdraw. Both Laiter and Lyubchenko testified at the
de novo hearing, as did Bacha.
¶11 Following the hearing, the circuit court issued an order on June 13,
2019, finding Lyubchenko in contempt for his “willful and unreasonable” failure
to file or sign a 2015 joint tax return. The court held open sanctions, stating that
sanctions would not be imposed if Lyubchenko complied with the court’s order to:
pay half of Laiter’s $9,911.97 liability for her 2015 individual taxes; pay half of
the accountant fees for preparation of the 2015 taxes; and pay Laiter’s attorney
fees.
¶12 Additional background will be provided as necessary in the
discussion below.
DISCUSSION
¶13 A circuit court’s use of its contempt power is reviewed on appeal for
an erroneous exercise of discretion. Krieman v. Goldberg, 214 Wis. 2d 163, 169,
571 N.W.2d 425 (Ct. App. 1997). A circuit court’s findings of fact underlying a
contempt determination will not be set aside unless they are clearly erroneous. Id.Because this case involves remedial, or civil, contempt, Lyubchenko has the
burden of showing he is not in contempt. See State v. Rose, 171 Wis. 2d 617, 623,
492 N.W.2d 350 (Ct. App. 1992).
I. Reimbursement for half of Laiter’s 2015 individual tax liability.
¶14 Lyubchenko argues that the circuit court erred in ordering him to
reimburse Laiter for half of the $9,911.97 in 2015 tax payments that she paid. He
5
No. 2019AP1793
contends that the court’s May 2018 divorce judgment directed him to either amend
his 2015 taxes and re-file jointly with Laiter or to reimburse Laiter, but did not
require him to do both. Thus, according to Lyubchenko, the court’s June 2019
order requiring him to both re-file his 2015 tax return and reimburse Laiter
contradicted the May 2018 divorce judgment, contrary to the doctrines of issue
and claim preclusion. Lyubchenko is incorrect.
¶15 A court interprets a judgment in the same manner as it does other
written instruments. Jacobson v. Jacobson, 177 Wis. 2d 539, 546, 502 N.W.2d
869 (Ct. App. 1993). Where language is plain and unambiguous, effect is to be
given to the plain and unambiguous language as written. Topolski v. Topolski,
2011 WI 59, ¶33, 335 Wis. 2d 327, 802 N.W.2d 482. Ambiguity exists when the
language of the written instrument is subject to two or more reasonable
interpretations. Schultz v. Schultz, 194 Wis. 2d 799, 805-806, 535 N.W.2d 116(Ct. App. 1995). Whether a judgment is ambiguous is a question of law to which
this court owes no deference. Id. at 805. Where a judgment or other order is
ambiguous, deference is given to the circuit court’s reasonable interpretation of its
own prior order. See id. at 808-09.
¶16 The circuit court’s February 2018 order provides: “[Lyubchenko] is
ordered to amend the 2015 taxes and file jointly with [Laiter]. Any refund/liability
shall be shared equally by the parties. Any cost to prepare the taxes will be shared
equally.” The court’s May 2018 judgment of divorce likewise states:
“[Lyubchenko] shall amend the 2015 taxes and file jointly with [Laiter]. Any
refund or liability shall be shared equally by the parties. Any cost to prepare the
taxes will be shared equally.” These orders are not ambiguous; however, even if
they were, deference would be accorded the circuit court’s interpretation of its
own order. See Schultz, 194 Wis. 2d at 808-09. As the circuit court concluded,
6
No. 2019AP1793
these orders require Lyubchenko to not only amend his 2015 taxes and file jointly
with Laiter, but also to share any refund or liability equally. It is undisputed that,
because Lyubchenko filed his 2015 taxes individually while the parties were still
married and claimed for himself credits and deductions—including those for the
parties’ children and Laiter’s father—Laiter also filed an individual tax return. As
a result, she incurred a tax liability in the amount of $9,911.97. Under both the
February 2018 order and the May 2018 divorce judgment, this amount constitutes
a “liability” that is required to be shared by the parties.3
¶17 In sum, Lyubchenko has not shown that the court erroneously
exercised its discretion in ordering Lyubchenko to pay half of Laiter’s $9,911.97
tax liability.4
II. The circuit court’s calculation of Laiter’s 2015 tax liability.
¶18 As stated, the circuit court found that the amount of 2015 tax
liability that Laiter paid was $9,911.97. This amount was based on the expert
testimony of Laiter’s accountant, Bacha, and an exhibit that Bacha prepared.
3
Notwithstanding Lyubchenko’s suggestions to the contrary, the anticipated refund for
the parties’ joint return, which at the time of the May 2019 de novo hearing on Laiter’s contempt
motion was anticipated to be $3,030, was also to be divided equally. However, the circuit court
granted Laiter’s request that Lyubchenko’s share of the refund go to Laiter to offset his half of the
$9,911.97.
4
Laiter contends that, in making his argument regarding payment of Laiter’s 2015 tax
liability, Lyubchenko refers to various IRS documents, bank records and tax returns, none of
which he produced during the de novo contempt hearing or before the circuit court commissioner
prior to the de novo hearing. In addition, Laiter states that, with respect to the October 2019 and
December 2019 Internal Revenue Service (IRS) documents to which Lyubchenko refers, the
circuit court specifically denied Lyubchenko’s motion to supplement the appellate record with
these documents, concluding that his attempt to do so was frivolous. In view of my rejection of
Lyubchenko’s argument on other grounds, I need not consider Laiter’s additional contentions.
7
No. 2019AP1793
¶19 Lyubchenko argues that the circuit court “made a mistake of fact” in
accepting the $9,911.97 figure. He argues that the figure should actually be
$8,323.
¶20 As stated, a circuit court’s findings of fact underlying a contempt
determination will be upheld unless they are clearly erroneous. Krieman, 214
Wis. 2d at 169. A circuit court’s decision is not clearly erroneous when it
logically interprets the facts, applies a proper legal standard, and reaches a
reasonable conclusion using a demonstrated rational process. Benn v. Benn, 230
Wis. 2d 301, 308, 602 N.W.2d 65 (Ct. App. 1999). On appeal, a reviewing court
will not reweigh evidence or reassess witness credibility. Dickman v. Vollmer,
2007 WI App 141, ¶14, 303 Wis. 2d 241, 736 N.W.2d 202.
¶21 At the de novo hearing, Bacha testified as to how the $9,911.97
figure was derived, relying on a supporting exhibit. Lyubchenko did not object to
the exhibit, nor did he present testimony from an accountant or other expert
witness to refute the $9,911.97 amount.
¶22 Lyubchenko makes several assertions as to why the $9,911.97 figure
was in error: namely, that Laiter’s exhibit in support of the figure did not provide a
source for the figure; that a motion to reconsider that he filed showed that “3 out
of 4 numbers on that list do not match [Laiter’s] own tax returns and the actual tax
liability was $1,600 less”; that the circuit court “included penalties and interest
into Laiter’s tax liability without giving any explanation” but that “IRS does not
consider penalties and interest tax liability, and calculates them in their own way
different from the taxpayer”; that “the decision not to pay her tax bill on time was
entirely Laiter’s”; and that Laiter’s liability consisted primarily of self-
employment taxes “that are her own sole responsibility.”
8
No. 2019AP1793
¶23 Because Laiter’s arguments are not developed or supported by any
legal authority, they need not be considered on appeal. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we need not address
undeveloped arguments); Industrial Risk Insurers v. American Eng’g Testing,
Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (“[a]rguments
unsupported by legal authority will not be considered, and we will not abandon
our neutrality to develop arguments” (citations omitted)). Moreover, with the
exception of the self-employment tax issue discussed in the next section below,
the challenges Lyubchenko raises were not raised during the hearing and are
therefore forfeited on appeal. See Schill v. Wisconsin Rapids Sch. Dist., 2010 WI
86, ¶45 & n.21, 327 Wis. 2d 572, 786 N.W.2d 177 (issues not raised in the circuit
court are forfeited and appellate courts generally do not address forfeited issues).
This includes the allegation Lyubchenko raised in his motion to reconsider that
there were discrepancies between the hearing exhibit and Laiter’s tax return. To
raise this issue on appeal, Lyubchenko was required to raise it at the hearing so
that Laiter, her expert, and the circuit court would have an opportunity to address
it during the hearing. This is particularly true here, where the $9,911.97 figure
presented at the de novo hearing was the same amount that was presented before
the court commissioner at the initial contempt hearing and the same figure set
forth in the court commissioner’s order. Thus, Lyubchenko had more than two
months prior to the de novo hearing to prepare a challenge to this figure, assuming
one existed.
¶24 Based on the foregoing, I reject Lyubchenko’s argument that the
circuit court erroneously exercised its discretion in finding that Laiter’s 2015 tax
liability was $9,911.97.
9
No. 2019AP1793
III. Lyubchenko’s argument that the circuit court erred in ordering
him to “pay one half of Laiter’s self-employment taxes and failing
to take into account [the] parties’ [full] joint liability in 2015.”
¶25 Lyubchenko asserts that Laiter’s 2015 federal tax return indicates
that the largest portion of her $9,911.97 tax liability was for self-employment
taxes, specifically, Social Security and Medicare taxes, which she had to pay as a
self-employed individual. Lyubchenko states that both Social Security and
Medicare “are two insurance programs run by the [f]ederal government and their
distributions fall under federal and not state jurisdiction,” that “if distributions
from a program are subject to federal jurisdiction, the contributions would fall
under the same jurisdiction,” and that the “state court lacks jurisdiction to order
Lyubchenko to pay Laiter’s self-employment taxes.” In support, he cites Mack v.
Mack, 108 Wis. 2d 604, 323 N.W.2d 153 (Ct. App. 1982), but he fails to provide a
quote, pincite or proposition of law from this case, nor any analysis of it. Mack
does not support the argument that Lyubchenko appears to be making—i.e., that
the circuit court lacked jurisdiction to consider whether self-employment taxes
may constitute marital debt. Nor does he provide any authority for any assertion
that self-employment taxes incurred during a marriage may not be considered a
marital debt. Therefore, I need not consider these unsupported arguments. See
Industrial Risk Insurers, 318 Wis. 2d 148, ¶25.
¶26 However, I also note that Lyubchenko has not shown that the circuit
court erred in rejecting Lyubchenko’s argument that the bulk of the $9,911.97 tax
liability was Laiter’s responsibility to pay. The court explained:
Mr. Lyubchenko had the right, if he wished, to call
an expert. He cannot sit on the stand and try to explain
complex tax issues as he does not have the foundation to do
that. I am not a tax expert and I certainly will not take
Mr. Lyubchenko at his word as to what he understands the
10
No. 2019AP1793
tax laws to be when we have an accountant who has
prepared the taxes here as an expert testifying.
So to that end, I am going to accept the proposition
that there are -- there’s a tax liability that Mr. Lyubchenko
owes to Ms. Laiter.
I cannot conclude that the court’s determination was clearly erroneous.
¶27 Lyubchenko also argues that the circuit court “failed to explain why
Lyubchenko has to pay not only his Social Security, Medicare and income taxes
and all parties’ school and property taxes on the parties’ joint residence in New
York, but also pay Laiter’s self-employment, her business taxes and both federal
and Wisconsin income taxes.” Even assuming Lyubchenko’s characterizations of
the parties’ respective obligations are accurate, such assertions are challenges to
the court’s original division of property during the divorce proceedings and are not
the proper subject of this appeal of the court’s June 2019 contempt order.
¶28 In sum, Lyubchenko has not demonstrated that the circuit court
erroneously exercised its discretion in determining that Lyubchenko should pay
half of Laiter’s 2015 individual tax liability.
IV. 2015 Wisconsin tax refund.
¶29 Lyubchenko argues that the May 2018 divorce judgment requires not
only that the 2015 federal tax refund be shared equally, but that any 2015
Wisconsin tax refund be shared equally as well. He therefore contends that the
circuit court erred in awarding Laiter the 2015 Wisconsin refund in its June 2019
contempt order. As previously stated, the May 2018 divorce judgment states:
“[Lyubchenko] shall amend the 2015 taxes and file jointly with [Laiter]. Any
refund or liability shall be shared equally by the parties. Any cost to prepare the
taxes will be shared equally.” Similar language is used in the court’s February
11
No. 2019AP1793
2018 order. The June 2019 contempt order from which Lyubchenko now appeals
provides that Laiter and Lyubchenko “shall each be entitled to any refund from the
filing of their State return ([Laiter] files in Wisconsin and [Lyubchenko] files in
Texas and New York).”
¶30 Lyubchenko notes that toward the end of the May 2019 de novo
hearing, he raised the issue of the Wisconsin tax refund but the circuit court
responded that it was not part of the de novo review and that no evidence was
presented on the issue. Lyubchenko has not demonstrated that the court’s
determination was in error. Notably, the motion for contempt appears to have
been based on Lyubchenko’s failure to file or sign an amended joint federal return,
not based on his failure to sign a Wisconsin return. Moreover, Lyubchenko’s
failure to file the federal return was the subject of the initial contempt proceeding
and the de novo review.
¶31 Based on the foregoing, Lyubchenko has not shown that the circuit
court erred in declining to address the Wisconsin return at the de novo hearing or
that it erroneously exercised its discretion in determining that each party would be
entitled to a tax refund from the state in which that party filed his or her own
individual taxes.5
5
Laiter also argues that the Wisconsin tax refund issue is moot because Lyubchenko
actually received the Wisconsin refund, in that Laiter’s refund was intercepted by the Wisconsin
Department of Revenue (WDOR) to pay the Wisconsin Bureau of Child Support for child support
that Lyubchenko owed Laiter. In support, Laiter attaches to her brief a letter addressed to her
from the WDOR that shows that $327.47 of her tax refund was applied to a debt owing the
Bureau of Child Support, and asks that this court take judicial notice of the WDOR letter under
WIS. STAT. § 902.01(2). In light of my determination that Lyubchenko has not shown that the
circuit court erred, I need not consider Laiter’s mootness argument. See Barrows v. American
Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate
court need not address every issue raised by the parties when one issue is dispositive.”).
12
No. 2019AP1793
V. Tax preparation fee.
¶32 Lyubchenko argues that the circuit court erred in ordering him to pay
for half of the accountant fees that Laiter incurred for Bacha’s preparation of the
parties’ 2015 amended joint tax return. Lyubchenko’s share for these fees was
$618. Lyubchenko contends that the May 2018 divorce judgment “clearly and
unambiguously” ordered Lyubchenko to amend his tax return and file jointly with
Laiter and that “[i]t is therefore unclear why Laiter decided to proceed with
preparing her own tax return without consulting Lyubchenko.” He further argues
that the record shows that he did not agree to Bacha’s services for preparation of
the 2015 return.
¶33 Notably, however, both the February 2018 order and the May 2018
divorce judgment state that “[a]ny cost to prepare the taxes will be shared
equally.” And neither order explicitly states that Lyubchenko himself was
required to prepare the joint return. Rather, both orders state that Lyubchenko was
required to “amend the 2015 taxes and file jointly with [Laiter].”
¶34 Additionally, Lyubchenko was first ordered to amend his 2015 tax
return and file a joint return with Laiter in February of 2018. The record shows
that when Laiter filed her contempt motion nearly a year later in January 2019, no
joint return had been filed, nor had Lyubchenko signed the return that Bacha had
prepared. Lyubchenko appears to argue that Laiter and Bacha failed to cooperate
with him in preparing the amended return. However, as found by the circuit court
and testified to by Bacha, Lyubchenko’s proposed return had the refund going to
Lyubchenko. The record shows that upon receiving Lyubchenko’s draft of the
joint return in June 2018, Laiter’s attorney responded the following month that
Laiter would not agree to a return where Lyubchenko receives the entire refund.
13
No. 2019AP1793
Also, as Bacha testified, the return that Lyubchenko prepared did not include a
number of deductions that would have increased the parties’ refund.
¶35 Accordingly, the circuit court found that it was “reasonable under
the circumstances” and “based on the history of this case” for Laiter to have the
tax return prepared by a professional accountant. Lyubchenko has not shown that
the court’s determination was in error or that the court erroneously exercised its
discretion in requiring that Lyubchenko pay half of Bacha’s accounting fees,
particularly given that this was expressly ordered in the circuit court’s February
2018 order and May 2018 divorce judgment.
VI. Lyubchenko’s argument that the circuit court “abused its
discretion in imposing remedial sanctions on [him] when he was
not in continuing contempt on an already moot issue.”
¶36 Lyubchenko was first ordered to amend his 2015 tax return and file a
joint return with Laiter in February 2018. As previously stated, at the time Laiter
brought her contempt motion in January 2019 almost a year later, Lyubchenko still
had not filed a joint return and had not signed the return that Laiter’s accountant
had prepared. However, shortly after Laiter filed her contempt motion, and prior
to the March 2019 contempt hearing before the circuit court commissioner,
Lyubchenko signed the amended return.
¶37 Lyubchenko argues that, because he signed the amended return
before the contempt hearing, the circuit court erred in finding him in contempt.
He states that failure to file the amended return was the basis for the contempt
motion and that therefore signing the tax return prior to the hearing rendered the
contempt issue moot at the time of hearing. See PRN Assocs. LLD v. DOA, 2009
WI 53, ¶25, 317 Wis. 2d 656, 766 N.W.2d 559 (“An issue is moot when its
resolution will have no practical effect on the underlying controversy.”). In his
14
No. 2019AP1793
reply brief, Lyubchenko also argues that, in order for the court to impose a
remedial sanction, there must be continuing contempt of court at the time the
remedial sanction is considered. In support of this latter proposition,
Lyubchenko’s reply brief cites Christensen v. Sullivan, 2009 WI 87, ¶75, 320
Wis. 2d 76, 768 N.W.2d 798, and Frisch v. Henrichs, 2007 WI 102, ¶47, 304
Wis. 2d 1, 736 N.W.2d 85.
¶38 In Christensen, our supreme court determined that the circuit court
lacked statutory authority to impose a remedial contempt sanction against
Milwaukee County for its past violations of a consent decree provision where the
County’s contemptuous conduct was no longer “continuing” at the time a
contempt motion was filed. Christensen, 320 Wis. 2d 76, ¶¶74-75. In Frisch, the
court held that, although one of the parties had “produce[d] all the required
documents before the circuit court found him in contempt, his contempt was
continuing under WIS. STAT. § 767.27(2m) because his production of documents
came too late to undo the problems he had created by failing to produce the
documents on time.” Frisch, 304 Wis. 2d 1, ¶47.
¶39 It is a well-established rule of appellate practice that the court will
not consider arguments raised for the first time in a reply brief, Northwest
Wholesale Lumber v. Anderson, 191 Wis. 2d 278, 294 n.11, 528 N.W.2d 502 (Ct.
App. 1995), because doing so “thwart[s] the purpose of a brief-in-chief, which is
to raise the issues on appeal, and the purpose of a reply brief, which is to reply to
arguments made in a respondent’s brief.” Verex Assurance, Inc. v. AABREC,
Inc., 148 Wis. 2d 730, 734 n.1, 436 N.W.2d 876 (Ct. App. 1989). In challenging
the circuit court’s contempt order, Lyubchenko’s brief-in-chief addresses the issue
of mootness, not whether there was “continuing contempt” as discussed in
15
No. 2019AP1793
Christensen and Frisch. Thus, I need not consider Lyubchenko’s legal arguments
raised in his reply brief based on Christenson and Frisch.
¶40 Moreover, Lyubchenko did not raise either a mootness or a
“continuing contempt” argument before the circuit court; therefore, both
arguments are forfeited. See Schill, 327 Wis. 2d 572, ¶45 & n.21.
¶41 Even if I were to consider the merits, however, Lyubchenko’s
arguments would be unavailing because he has failed to show that the circuit
court’s resolution of the contempt issue would have “no practical effect,” as
required for application of the mootness doctrine, see PRN Assocs., 317 Wis. 2d
656, ¶25, or that the contempt was not continuing under Christensen and Frisch.
Here, it is undisputed that as a result of Lyubchenko’s failure for nearly a year to
comply with the circuit court’s February 2018 order, Laiter incurred accountant
fees for ultimately having Bacha prepare the parties’ joint return; incurred attorney
fees for bringing the contempt action which evidently prompted Lyubchenko’s
compliance with the February 2018 order; was denied her share of an anticipated
tax refund from the filing of the amended return; and had not been reimbursed by
Lyubchenko for the tax liability she incurred for having to file an individual tax
return as a result of Lyubchenko’s filing an individual return during the parties’
marriage. There is likewise no dispute that these financial losses were outstanding
at the time of the March 2019 contempt hearing before the court commissioner
and that they were still outstanding at the time of the May 2019 de novo hearing.
In finding Lyubchenko in contempt, the circuit court ordered that he reimburse
Laiter for half of the accountant fees, for attorney fees, and for half of the amount
in tax liability that Laiter incurred for having to file an individual tax return. The
court also ensured that Laiter’s half of the anticipated tax refund for the parties’
16
No. 2019AP1793
amended tax return would be paid to Laiter and that Lyubchenko’s share of the
refund would also be paid to Laiter to offset amounts he owed her.
¶42 Lyubchenko has failed to cite any authority in which a court has
determined that a party may not be found in contempt where, at the time of the
contempt motion, the party is in violation of a court order but then complies with
the court order in time for the contempt hearing. As repeated throughout this
opinion, arguments unsupported by legal authority will not be considered, and this
court will not abandon its neutrality to develop arguments on behalf of a party.
See Industrial Risk Insurers, 318 Wis. 2d 148, ¶25.
¶43 Lyubchenko also appears to challenge the circuit court’s finding of
contempt on the ground that he provided a proposed amended tax return to Laiter
in June 2018, and that it was not his fault that no return was completed until
January 2019. As previously stated, a circuit court’s findings of fact underlying a
contempt determination will be upheld unless they are clearly erroneous.
Krieman, 214 Wis. 2d at 169. Moreover, “[b]ecause the exercise of discretion is
so essential to the [circuit] court’s functioning, we generally look for reasons to
sustain discretionary decisions.” Schneller v. St. Mary’s Hosp. Med. Ctr., 155
Wis. 2d 365, 374, 455 N.W.2d 250 (Ct. App. 1990).
¶44 Here, the circuit court was presented with ample evidence that
Lyubchenko did not reasonably comply with the circuit court’s February 2018
order that he file an amended 2015 return. Although Lyubchenko appears to have
completed a proposed amended return on June 18, 2018, the circuit court heard
testimony that Lyubchenko drafted the return so that the entire refund would go
solely to him and that he failed to include deductions that would result in a larger
refund. The record also shows that in July 2018, Laiter’s counsel informed
17
No. 2019AP1793
Lyubchenko’s counsel that Laiter would not sign Lyubchenko’s proposed
amended return but would do so if he modified it to address these concerns. The
record also includes an email dated October 18, 2018, in which Laiter’s attorney
asked Lyubchenko’s attorney about the status of the amended return. On
December 14, 2018, an amended return prepared by Bacha was sent to
Lyubchenko’s attorney with an email requesting that counsel have the amended
return signed and returned to Laiter’s counsel by December 28 and warning that if
the return was not received by then, Laiter’s counsel would file for contempt. On
December 17, 2018, Laiter’s counsel again emailed Lyubchenko’s counsel asking
him to “acknowledge receipt” and reiterating that if she did not have the return
back by December 28, she would file for contempt. On December 18, 2018,
Laiter’s counsel once again emailed Lyubchenko’s counsel, stating that it was the
third time she had emailed him and again warning that if she did not receive the
signed return by December 28, she would file for contempt. On January 3, 2019,
Laiter filed her request for a contempt order.
¶45 As he argued before the circuit court, Lyubchenko argues on appeal
that he received no update from his attorney on the status of the return after July
2018, that he was not informed by his attorney of the amended return prepared by
Bacha and sent to his attorney on December 14, 2018, and that when he became
aware of the return in early January 2019, he signed it shortly thereafter.
However, as found by the circuit court:
I think that Mr. Lyubchenko, through his lawyer, had
several opportunities between June -- or May of 2018 and
by the time this contempt was filed to have disputed,
refuted, had negotiations; but instead it ends up with a
contempt motion filed and two hearings to work it out -- or
to have the Court finally decide how to work it out.
I am going to grant Ms. Laiter’s motion. I think that
Mr. Lyubchenko’s actions, either by him or through his
18
No. 2019AP1793
attorney, were not reasonable in conforming to the court
order.
¶46 In sum, Lyubchenko has not established that the circuit court’s
findings were clearly erroneous or that the court’s order finding him in contempt
was in error.
VII. Attorney and accountant fees.
¶47 Lyubchenko challenges the amounts in attorney and accountant fees
determined by the circuit court. Regarding attorney fees, Lyubchenko argues that
the amount of $1,500 incurred for the initial contempt hearing before the court
commissioner was in error because it is inconsistent with the amount of attorney
fees listed in an exhibit submitted by Laiter at the de novo hearing. The exhibit
states that Laiter incurred $1,200 in attorney fees for the initial contempt
proceeding, but the circuit court ordered $1,500 in attorney fees for that
proceeding.
¶48 However, the court commissioner who conducted the contempt
proceeding found that Laiter “incurred $1,500 in reasonable attorney fees for
having to bring this action.” This is set forth in the court commissioner’s March
2019 order and was adopted by the circuit court following the court’s de novo
review. Laiter acknowledges that the hearing exhibit states the amount as $1,200
but argues that the mistake is on the exhibit, not on the court commissioner’s
order. She argues that there is no requirement that the circuit court ignore a
previous court finding and instead use figures that are set forth on an exhibit. I
agree with Laiter. The circuit court was clearly following the court
commissioner’s order in determining that the attorney fees incurred for bringing
the action before the court commissioner were $1,500. Lyubchenko has failed to
19
No. 2019AP1793
establish that this amount was clearly erroneous. See Herlitzke v. Herlitzke, 102
Wis. 2d 490, 494, 307 N.W.2d 307 (Ct. App. 1981) (“When more than one
reasonable inference can be drawn from the evidence, this court is obliged to
support the findings made by the trial court.”).
¶49 With respect to the accountant fees, Lyubchenko argues that the
circuit court made an “error in computation” in awarding accountant fees for 3.5
hours of Bacha’s time instead of for 3 hours. At the de novo hearing, the
following exchange occurred between Bacha and the court:
Q Did you incur additional fees for being here today?
A I did.
Q And what additional fees did you incur?
A This morning I put in two and a half hours to get
everything for today’s appearance in order and my time
here.
THE COURT: So about three hours?
THE WITNESS: Mm-hmm.
THE COURT: Yes?
THE WITNESS: Yes, your Honor.
(Emphasis added.)
¶50 Based on this exchange, Lyubchenko argues that the circuit court
should have entered an order for 3 hours rather than 3.5 hours.6 I conclude that
6
As Laiter points out, even if Lyubchenko were correct that this was a “miscalculation,”
the error would result in Lyubchenko saving $37.50 (50% of ½ hour x $150/hour). Laiter argues
that “[t]his is the quintessential example of the extent Mr. Lyubchenko will go to excessively
litigate issues in this case.”
20
No. 2019AP1793
Lyubchenko has not shown that the court’s calculation was clearly erroneous.
First, the court summarized Bacha’s statement as about three hours, not exactly
three hours. In addition, Bacha testified that her time consisted of 2.5 hours
preparing for the hearing that morning and “my time here.”7 I note that Bacha’s
testimony about her hours and her “time here” occurred relatively early during the
de novo hearing, at page 14 of the 54-page hearing transcript, and that following
Bacha’s testimony regarding her time, she was recalled as a witness, after both
Laiter’s and Lyubchenko’s testimony.
¶51 Accordingly, Lyubchenko has not shown that the circuit court
erroneously exercised its discretion in determining the amount for either attorney
or accounting fees.
CONCLUSION
¶52 For the reasons stated above, I affirm all challenged aspects of the
circuit court’s June 2019 order finding Lyubchenko in contempt.8
7
Lyubchenko’s reply brief suggests that Lyubchenko has construed the 2.5 hours as
including the time Bacha spent at the hearing. He asserts: “The record clearly shows that Bacha
spent 2.5 hours in preparation for [the] hearing and the hearing itself. The court clearly didn’t
want to deal with fractions and rounded the number to 3.” However, that interpretation is not
supported by the exchange set forth above between the circuit court and Bacha.
8
Laiter moves for costs and attorney fees against Lyubchenko under WIS. STAT.
§ 809.25(3)(c) because, according to Laiter, this appeal is frivolous. Attorney fees may be
imposed under § 809.25(3)(c) only if the entire appeal is frivolous. State ex rel. Robinson v.
Town of Bristol, 2003 WI App 97, ¶54, 264 Wis. 2d 318, 667 N.W.2d 14. Although I have
decided against Lyubchenko on all of the issues he raises in this appeal and consider some of his
arguments on appeal to be frivolous, I cannot conclude that all of his arguments are frivolous.
Accordingly, I deny the motion. I further note that, relying on Zhang v. Yu, 2001 WI App 267,
248 Wis. 2d 913, 637 N.W.2d 754, Laiter argues that this court may order costs and attorney fees
based on a subset of frivolous arguments. However, I reject this argument because Zhang
affirmed a circuit court determination of attorney fees in the context of “overtrial”; it did not
(continued)
21
No. 2019AP1793
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
determine that this court may award attorney fees under § 809.25(3)(c) based on a subset of
frivolous arguments. See Zhang, 248 Wis. 2d 913, ¶¶9-10, 16.
22