Jean Detjen v. Lizabeth D. Rozum

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 27, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP101 Cir. Ct. No. 2019CV637
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
JEAN DETJEN AND JENNIFER VIOLA,
PLAINTIFFS-RESPONDENTS,
KIERNAN A. ROZUM,
INVOLUNTARY-PLAINTIFF,
V.
LIZABETH D. ROZUM,
DEFENDANT-APPELLANT,
RICH LAMM,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Winnebago County:
BARBARA H. KEY, Judge. Affirmed.
No. 2022AP101
Before Neubauer, Grogan and Lazar, 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).
¶1 PER CURIAM. Lizabeth D. Rozum appeals an order, removing her
as trustee of her mother’s trust, invalidating her mother’s power of attorney and
IRA beneficiary designation on the basis of undue influence, ordering payment of
various fees, and requiring Lizabeth to reimburse the trust and her mother’s
personal accounts certain amounts. Lizabeth raises numerous arguments regarding
the circuit court’s purported errors throughout the pendency of this action. We
reject Lizabeth’s arguments and affirm.
BACKGROUND
¶2 As relevant to this appeal, Kiernan and Thomas Rozum lived in
Winnebago County, Wisconsin and had three daughters: Jean Detjen, Lizabeth,
and Jennifer Viola. Thomas died in 2015. Following Thomas’s death, Kiernan,
who has some form of dementia, made Lizabeth her power of attorney (“POA”).
She also established a trust and made Lizabeth a co-trustee along with Richard
Lamm (an unrelated third party). Kiernan was the primary beneficiary of the trust;
her daughters received annual gifts from the trust. The terms of the trust allowed
the co-trustees to act jointly or independently.
¶3 During her time as POA and trustee, Lizabeth charged the trust $750
per month as co-trustee, $1,000 per month as POA, and $2,500 per month as
Kiernan’s caregiver.1 Lizabeth charged those fees despite the fact that Kiernan
1
Lizabeth reduced her fees by $800 per month when she moved out of state.
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No. 2022AP101
lived independently and the trust retained separate financial entities for investing
and bill paying. Lizabeth also received property and land located on the Pine
River in Waushara County from Kiernan.
¶4 Lamm testified his relationship with Lizabeth deteriorated
approximately six months after he became co-trustee. Lizabeth demanded that
Lamm stop talking to Kiernan and do no further work on the trust. Lamm gave
notice that he wanted to resign as co-trustee but ultimately did not because
Kiernan asked him to remain.
¶5 In May 2019, Detjen had a conversation with Kiernan about
Lizabeth’s actions as co-trustee and POA in relation to Kiernan’s assets. In
response, Kiernan called her attorney, Jillayne Verich. Verich testified Kiernan
was upset. Kiernan wanted her daughters to receive an equal inheritance and was
distressed to learn that there was nothing in place to equalize Lizabeth’s advance
receipt of certain property. Kiernan felt that Lizabeth was keeping information
from her and wanted “to revoke [Lizabeth’s] powers on her behalf.”
¶6 On May 23, 2019, Verich met privately with Kiernan. Verich
explained she had several meetings with Kiernan over the past year and at the
May 23 meeting Kiernan “was the sharpest I’d ever seen her.” Kiernan told
Verich that “she no longer wanted Liz involved as an agent in any regard whether
it’s health care, caregiver, Financial Power of Attorney, Trustee. She didn’t trust
Liz.” Kiernan wanted Detjen appointed as an interim financial POA, but
ultimately wanted “an independent, nonfamily member serving in the financial
situation whether it was POA or trustee.” Verich prepared and Kiernan executed a
document making Detjen POA.
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¶7 Kiernan wrote Lizabeth, who lived in Arizona, a letter asking her to
resign as co-trustee and advising Lizabeth she no longer wanted her in charge of
her money or health. Kiernan advised Lizabeth that she had betrayed Kiernan’s
trust and felt that Lizabeth had “controlled” her since Thomas’s death. Verich
wrote Lizabeth and advised her that “your compensation will be adjusted as of
June 1, 2019 to reflect that you no longer are serving as financial agent and
healthcare agent. This will again be adjusted to $0 when you are no longer serving
as trustee.”
¶8 As for Kiernan’s concern with equalization between her daughters,
Kiernan valued the property Lizabeth had received at approximately one million
dollars. Kiernan made Detjen and Viola the sole beneficiaries of a two-million-
dollar IRA.
¶9 In response to the changes, Lizabeth traveled unannounced from
Arizona to Kiernan’s house in Oshkosh. In early June, Verich arrived at Kiernan’s
for a scheduled meeting and walked in on Lizabeth “berating her mother” while
Kiernan sat “on the couch cowering … like an abused animal or abused child.”
Verich asked Lizabeth to leave and Lizabeth left and returned to Arizona.
¶10 On June 19, Kiernan reported to Verich that Lizabeth was flying in
later that night and Kiernan was allowing Lizabeth to stay with her because
Lizabeth was in some kind of unspecified trouble. Verich testified that when she
left the June 19 meeting, given her prior dealings with Lizabeth, she knew it would
be the last time she would see Kiernan.
¶11 A couple of days later, Kiernan fired Verich. Attorney David
Schultz testified that on June 24, he received a call from Lizabeth and met with
Lizabeth and Kiernan the next day. On June 26, Kiernan signed a POA drafted by
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Schultz that reinstated Lizabeth as POA. Kiernan also executed a new IRA
beneficiary form that reversed what had been done to equalize asset distribution.
¶12 On July 10, 2019, Lizabeth packed her mother a suitcase and drove
her to Arizona. Kiernan never returned to Wisconsin. On August 1, Lizabeth
moved Kiernan into a senior-living facility in Arizona.
¶13 On July 30, 2019, Detjen, Viola, and Kiernan, by Detjen as
Kiernan’s POA, brought suit against Lizabeth individually and in her capacity as
co-trustee and against Lamm in his capacity as co-trustee. The complaint
generally alleged that Lizabeth, as co-trustee, breached fiduciary duties to the trust
beneficiaries in various ways and sought an accounting and reimbursement from
Lizabeth for misconduct as well as Lizabeth’s removal as co-trustee in favor of
Lamm as sole trustee or another independent third-party. The complaint sought a
declaratory judgment that the June POA Kiernan executed that reinstated Lizabeth
as POA was the product of undue influence and void. The complaint also alleged
Lizabeth had violated duties owed to Kiernan while Lizabeth was Kiernan’s POA
and sought an accounting of Lizabeth’s conduct and the appointment of a third-
party financial POA.
¶14 After the lawsuit against Lizabeth was filed, an attorney representing
Kiernan moved to dismiss Kiernan from the lawsuit on the basis that she did not
wish to participate. The circuit court granted Kiernan’s motion the next day and
dismissed her from the lawsuit. Once Kiernan was dismissed from the lawsuit,
Lizabeth filed a motion to dismiss the lawsuit in its entirety.
¶15 Detjen and Viola requested judicial substitution and the case was
reassigned. Detjen and Viola then filed a motion for reconsideration of the order
dismissing Kiernan from the lawsuit. They argued they never had a chance to
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respond to the dismissal motion before it was granted, one of the critical issues in
their complaint was that Lizabeth was exerting undue influence on Kiernan, and
their complaint contained factual allegations demonstrating undue influence.
Kiernan, through her attorney, and Lizabeth opposed the motion.
¶16 At the motion hearing, the newly-assigned circuit court explained it
appeared the dismissal motion was never decided on the merits. The court advised
the parties that it called the previous judge to confirm the motion was not decided
on the merits and the previous judge agreed. The circuit court explained that
because the motion was disputed, it would reconsider the order dismissing Kiernan
from the lawsuit and would hear the dismissal motion on the merits. Following
arguments on the merits, the circuit court inquired whether, given the allegations
of undue influence, any party objected to a guardian ad litem (“GAL”) being
appointed for Kiernan. Lizabeth advised she “wouldn’t oppose a GAL being
appointed if [Kiernan’s] brought in as a party[.]” The circuit court then denied the
dismissal motion, explaining that because the issues in the case related to the
validity of Kiernan’s POA, Kiernan would remain a party to the action.2 The court
also appointed a GAL for Kiernan.
¶17 Lizabeth answered the complaint and filed cross-claims against her
sisters for conspiracy, racketeering, punitive damages, intentional interference
with contractual relations, and intentional infliction of emotional distress.
Lizabeth also petitioned the court to determine Lamm had resigned as trustee,
remove Lamm as co-trustee, and deny him trustee compensation.
2
Eventually, the court made Kiernan an involuntary plaintiff.
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¶18 In June 2020, following motions, affidavits, and arguments, the
circuit court temporarily suspended Lizabeth as co-trustee and granted Lamm’s
request to be removed as co-trustee. The court temporarily appointed Corporate
Guardians of Northeast Wisconsin (“CGNW”) as trustee. Because the court had
not yet determined whether Detjen or Lizabeth was Kiernan’s POA, the circuit
court also temporarily appointed CGNW as Kiernan’s POA. The court reasoned
that it was “necessary for the Court to use its authority for equitable purposes and
preserve the estate of Kiernan Rozum until such time this case can be fully
litigated.”
¶19 In November 2020, the court held a two-day evidentiary hearing on
the allegations of undue influence, which included the request to remove Lizabeth
as a trustee and the determination of which POA designation controlled.
Following testimony and evidence, the circuit court first determined it had
jurisdiction over this case because Kiernan was a Wisconsin resident when the
complaint was filed. The court found that Lizabeth’s actions of taking Kiernan to
Arizona did not establish Kiernan, who had lived in Wisconsin her entire adult
life, was an Arizona resident when the complaint was filed.
¶20 The circuit court then found that given Kiernan’s cognitive decline,
Kiernan was susceptible to undue influence and Lizabeth exhibited “incredibly
controlling behavior” to get what she wanted. The court noted the “statements
from Kiernan in terms of her being scared and doing what [Lizabeth] wants.” The
court found Lizabeth wanted to be in control and there was a financial incentive
for her to be in control. The court found that Lizabeth “became aware of this
change in the designation of Trustee, Power of Attorney and she came to
Wisconsin to address this and to address it by getting it all changed back and
moving [Kiernan] down to Arizona.” The court found Lizabeth’s testimony “to be
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self-serving, evasive, selective memory, some real concerns with regard to
Lizabeth’s testimony and the actions in terms of how she dealt with the people
involved here.” The court observed there was “a significant amount of testimony
of significant difficulties dealing with Lizabeth when things aren’t going the way
she wants them to go.”
¶21 The circuit court then removed Lizabeth as trustee. The court found
that Lizabeth breached her fiduciary duties as trustee and that Lizabeth’s actions
had substantially impaired the administration of the trust. The court emphasized,
“Again, this isn’t just one person testifying. It was multiple people testifying to
that.” The court ordered an accounting of the trust assets and disbursements,
concluding:
[T]he Court cannot begin to understand what’s happened to
the principal of this Trust and who knows what’s in the
individual accounts now. So much money has been spent
on things that were not in Kiernan’s best interests here.
There’s no doubt about that.
The court appointed CGNW as permanent trustee.
¶22 As for the POA designation, the circuit court found Kiernan’s May
POA, naming Detjen as POA was valid, and Kiernan’s June POA, reinstating
Lizabeth as POA was invalid because it was the result of undue influence. The
court ordered Lizabeth to provide an accounting of payments or disbursements
made from Kiernan’s personal accounts. Because Detjen believed it was in
Kiernan’s best interests to have a third-party serve as Kiernan’s financial POA, the
court appointed CGNW as Kiernan’s financial POA.
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No. 2022AP101
¶23 The circuit court then dismissed Lizabeth’s cross claims against her
sisters. It scheduled a second evidentiary hearing to determine the issues
regarding the IRA beneficiary designations and damages, including attorney fees.
¶24 Leading up to the second evidentiary hearing, the circuit court issued
an order requiring all parties and witnesses to appear in person. The court
explained, in part, that during the first evidentiary hearing, Lizabeth, who
appeared virtually, had at one point appeared to be speaking to someone off
camera. When the court inquired, Lizabeth advised the court no one else was
present. However, in Lizabeth’s post-hearing filings, she advised the court that
indeed there was another individual present with her during the hearing, taking
notes and recording testimony. As a result, the court prohibited virtual
appearances at the second evidentiary hearing.
¶25 Following the circuit court’s order, Lizabeth moved the court to
permit her to appear virtually. The court denied her request. Lizabeth then wrote
to the court, advising the court, among other things, that she “will not be in court
on November 23, 2021,” which was the day of the second evidentiary hearing.
Lizabeth also moved the court to reconsider and permit her to appear virtually.
The court denied Lizabeth’s reconsideration motion.
¶26 Lizabeth did not appear at the November 23, 2021 hearing. Despite
her nonappearance, the circuit court proceeded with the second evidentiary
hearing as scheduled. Based on the testimony and exhibits from the hearing, the
circuit court first found that Kiernan wanted to treat her daughters equally; that
Lizabeth had received an advance in the form of certain property; that Kiernan
offset that advance by making Detjen and Viola the beneficiaries of an IRA; and
that Lizabeth unwound that equalization through undue influence. The court
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No. 2022AP101
ordered Kiernan’s POA to reestablish Detjen and Viola as beneficiaries of
Kiernan’s IRA in order to equalize Lizabeth’s early inheritance.
¶27 The court then made a series of findings and orders regarding costs
and fees, including attorney fees. The court ordered the trust to pay Lamm for
fees that were incurred while he was trustee and dismissed Lizabeth’s cross claims
against Lamm based on her nonappearance. The court also determined whether
other costs and fees, including certain attorney fees, were reasonable and
depending on the specific claim ordered the trust or Kiernan to pay each approved
amount. The court then ordered Lizabeth to reimburse the trust and/or Kiernan for
certain amounts that were attributable to breaches of Lizabeth’s fiduciary duties
and/or caused by Lizabeth’s behavior during the pendency of this action.3
¶28 Lizabeth moved for relief from the court’s order on the basis that she
was hospitalized and therefore could not attend the November 23 hearing. The
circuit court denied her motion. Lizabeth appeals.
3
The circuit court explained that “Lizabeth’s actions have made [this case] so much
more time consuming and costly than it would have otherwise been.” The court continued:
the innumerable filings as well as again the testimony at the
original trial on this, including the affidavits from counsel on
motions to withdraw by all counsel that have represented
Lizabeth, that there has been a consistent pattern of obstructive
behavior to the entire administration of the Court and counsel
with regard to this matter[.]
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DISCUSSION
¶29 Lizabeth raises numerous arguments on appeal regarding various
ways the circuit court erred throughout the pendency of the case. We address each
argument in turn, including additional facts as necessary.4
I. Kiernan’s dismissal from the lawsuit
¶30 On appeal, Lizabeth first argues the circuit court erred by granting
the motion to reconsider the order dismissing Kiernan from the lawsuit. She
contends the dismissal order was the “law of the case” and “[n]o reason was stated
on the record to sidestep the law of the case doctrine.”
¶31 The law of the case doctrine does not apply in this case. The circuit
court’s initial grant of the motion to dismiss was not a decision on a legal issue by
an appellate court. See State v. Stuart, 2003 WI 73, ¶23, 262 Wis. 2d 620, 664
N.W.2d 82 (“The law of the case doctrine is a ‘longstanding rule that a decision on
a legal issue by an appellate court establishes the law of the case, which must be
followed in all subsequent proceedings in the trial court or on later appeal.’”
(Emphasis added)).
¶32 More importantly, and contrary to Lizabeth’s argument, the circuit
court did explain why it was granting the reconsideration motion. It stated it was
granting the reconsideration motion because after reviewing the record the
dismissal motion was never decided on the merits, and, accordingly, the circuit
court would consider the motion on the merits. The circuit court did not err.
4
To the extent we have not addressed an argument on appeal, the argument is deemed
rejected. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978).
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¶33 Lizabeth next asserts the circuit court erred by granting the motion
for reconsideration because the court engaged in an improper independent
investigation when the court advised the parties that it had contacted the former
judge to confirm that the dismissal motion had never been decided on the merits.
Lizabeth argues the circuit court’s decision to grant the reconsideration motion
was “tainted by that independent investigation.” We disagree. It is clear from the
record that the circuit court would have granted the reconsideration motion even
without confirmation from the former judge.
II. Appointment of Kiernan’s GAL
¶34 Lizabeth next argues the circuit court erred by appointing a GAL for
Kiernan. However, Lizabeth stipulated to the appointment of a GAL. Any
argument regarding the appointment of a GAL is therefore forfeited. See State v.
Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727 (timely objection
in the circuit court is required to preserve an argument for appeal).
¶35 Lizabeth also contends the circuit court erred by appointing Attorney
Kathleen Healy to serve as GAL instead of the attorney Kiernan retained to
dismiss herself from the lawsuit. In support, she relies on WIS. STAT.
§ 803.01(3)(a),5 which provides, in relevant part, that “if the interests of the …
individual alleged to be … incompetent are represented by an attorney of record,
the court shall, except upon good cause stated in the record, appoint that attorney
as the guardian ad litem.”
5
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
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¶36 However, after stipulating to the appointment of a GAL, no one
objected to the court’s appointment of Healy as GAL, including the attorney
Kiernan retained to dismiss herself from the lawsuit. Lizabeth’s argument
regarding which attorney was appointed as GAL for Kiernan is forfeited. See
Huebner, 235 Wis. 2d 486, ¶10. In any event, Lizabeth overlooks that the role of
a GAL is to do what is in the person’s best interest, not necessarily advocate for
what the person wants. When Healy was appointed as GAL, there was an evident
conflict of interest between how Kiernan wished to handle the lawsuit, which
Detjen and Viola argued was made while she was “under Lizabeth’s control,” and
how others believed Kiernan’s best interests would be served. Good cause existed
for the circuit court to appoint Healy as GAL.
III. Kiernan’s status as a Wisconsin resident
¶37 Lizabeth next argues the circuit court lacked jurisdiction over the
case because Kiernan was an Arizona resident when the complaint was filed. She
also contends the circuit court’s factual finding regarding Kiernan’s residency was
insufficient because the court only determined Kiernan was a resident of
Wisconsin and did not specifically find Kiernan was a resident of Winnebago
County.
¶38 We disagree. First, the undisputed record from the first evidentiary
hearing established that Kiernan lived in “Evergreen Retirement Community in
Oshkosh, Wisconsin.” Oshkosh is in Winnebago County. See WISCONSIN BLUE
BOOK 525 (2021-2022). As to Kiernan’s residency, the court concluded Kiernan
was a resident of Wisconsin when the July 30, 2019 complaint was filed,
explaining:
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[Kiernan] had been taken from the place she lived all her
life, driven down [to Arizona] and it wasn’t until sometime
in August that her items all arrived there. Gone there with
the original expectation of a vacation and then the original
expectation, well, we’ll see what you think of this. But, no,
she didn’t move [to Arizona] on the day that she just left
Evergreen with [Lizabeth].
The court’s factual determination is supported by the record and therefore not
clearly erroneous. See Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶11,
290 Wis. 2d 264, 714 N.W.2d 530 (appellate court “defers to the circuit court’s
findings of fact unless they are unsupported by the record”).
IV. Order appointing a temporary trustee and POA
¶39 Lizabeth argues the circuit court erred when it issued a pretrial order
that “temporarily suspended” Lizabeth from her role as trustee and temporarily
appointed CGNW as trustee and as Kiernan’s POA. Lizabeth asserts the motions
and affidavits revealed “sharp differences in the facts” and the circuit court erred
by failing to hold an evidentiary hearing before issuing its temporary order.
Lizabeth also argues the circuit court had no authority to appoint a temporary
POA. She argues that the court’s order for a temporary POA effectively removed
her as her mother’s POA and the court was required to review her conduct before
making such a determination. She also challenges the appointment of CGNW as
POA.
¶40 We conclude the circuit court did not err by issuing its temporary
order without an evidentiary hearing. The parties submitted affidavits, which were
considered by the court. Moreover, contrary to Lizabeth’s assertions, the circuit
court’s limited finding that “[t]he lack of cooperation among the trustees
impair[ed] the administration of the Trust” was undisputed and supported by the
record. See Royster-Clark, 290 Wis. 2d 264, ¶11. Lamm, Lizabeth, and the GAL
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No. 2022AP101
averred that Lizabeth was actively preventing Lamm from acting as co-trustee,6
that BMO Harris effectively froze the trust because it began requiring Lamm’s
approval in addition to Lizabeth’s, and that Lizabeth started using Kiernan’s
personal accounts to pay trust expenses.
¶41 Additionally, Lizabeth’s arguments regarding the temporary POA
overlook that, ultimately, the circuit court determined Detjen was POA because
Lizabeth’s subsequent POA designation was void on the basis of undue influence.
We therefore conclude any error in the appointment of a temporary POA was
harmless. See Evelyn C.R. v. Tykila S., 2001 WI 110, ¶28, 246 Wis. 2d 1, 629
N.W.2d 768 (“If the error at issue is not sufficient to undermine the reviewing
court’s confidence in the outcome of the proceeding, the error is harmless.”).
V. Dismissal of Lizabeth’s cross claims against her sisters
¶42 Lizabeth then asserts the circuit court erred by dismissing her cross
claims against her sisters at the conclusion of the first evidentiary hearing. She
contends the scope of the first evidentiary hearing never included her cross claims
and it was error for the court to dismiss them without notice or opportunity to be
heard.
¶43 At the conclusion of the first evidentiary hearing, Detjen and Viola,
among other things, moved to dismiss the “wild allegations” Lizabeth made
against them in her cross claims on the basis that, given the record, none of them
could be proven. Lizabeth did not oppose Detjen and Viola’s motion or offer any
argument as to why the cross claims should not be dismissed. The court
6
Lizabeth’s view was that Lamm resigned and was no longer co-trustee.
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No. 2022AP101
subsequently dismissed the cross claims, finding there was no basis for the claims.
Given Lizabeth’s failure to object to the motion to dismiss her cross claims, we
conclude Lizabeth has forfeited any objection to the cross claims’ dismissal. See
Huebner, 235 Wis. 2d 486, ¶10.
VI. Accuracy of the circuit court’s written orders
¶44 Lizabeth contends the circuit court’s written orders entered
following the first and second evidentiary hearings should be vacated because they
are “not entirely consistent with the oral ruling” from the transcripts. Lizabeth’s
argument on this issue is undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646-
47, 492 N.W.2d 633 (Ct. App. 1992) (we need not consider undeveloped
arguments). She does nothing more than provide a list of paragraph numbers from
the orders that she believes are incorrect. We will not consider this argument
further.
VII. Circuit court’s second-evidentiary-hearing determinations
¶45 Lizabeth next argues the circuit court erred in the various
determinations it made at the second evidentiary hearing. She asserts the circuit
court erred by ordering alterations to Kiernan’s IRA account, by dismissing her
cross claims against Lamm, by awarding various costs and fees and ordering
Lizabeth to reimburse Kiernan and/or the trust for most of them, and by
authorizing Kiernan’s GAL to pursue collection efforts against Lizabeth if she did
not timely make reimbursement. Lizabeth, however, forfeited her objections to
and arguments regarding the court’s determination on these issues when she failed
to appear at the second evidentiary hearing. See Huebner, 235 Wis. 2d 486, ¶10.
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VIII. Denial of Lizabeth’s motion for reconsideration
¶46 Following the second evidentiary hearing, Lizabeth moved for relief
from the court’s order pursuant to WIS. STAT. § 806.07(1)(h). Lizabeth argued, in
part, she did not appear at the evidentiary hearing because she “was in the hospital,
in crisis, due to the meritless Motion for Contempt filed by Plaintiffs,7 with the
penalty of sanctions and/or imprisonment.” The circuit court denied Lizabeth’s
motion for relief, concluding:
Defendant did not appear at the November 23, 2021
hearing. The Court had multiple times denied her request
to appear remotely, the reasons for which are included in
previous orders. Defendant’s pattern of attempting to
subvert the court’s scheduled hearing process has continued
throughout the proceedings. Multiple attorneys have
withdrawn from representation. The Court further notes
Exhibit 106 … Pages 18-20 particularly page 19 …, which
references a similar pattern of behavior in the Arizona
Courts.8
Defendant asserts she was hospitalized on the date of the
November 23, 2021 hearing. Defendant previously stated
numerous times in correspondence and pleadings her
intention to not appear. Defendant submitted
correspondence prior to trial stating she would not attend
and would appeal the Court’s ruling. Defendant indicates
she was hospitalized due to fear of the motion for
contempt. This does not form a basis for relief.
….
7
Detjen and Viola moved for contempt on the basis that Lizabeth had failed to provide
an accounting as required by the court’s order.
8
Exhibit 106 was admitted into evidence at the November 23 evidentiary hearing in
support of attorney fees incurred as a result of Lizabeth’s behavior. The exhibit established that
Lizabeth fired her attorney in Arizona four days before trial was set to begin. After Lizabeth
made certain allegations about counsel, the Arizona court determined Lizabeth had waived
attorney-client privilege and ordered Lizabeth’s emails to counsel to be submitted. The emails
established Lizabeth specifically timed her counsel’s termination in order to obtain further delay.
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The Court’s November 23, 2021 ruling is affirmed. The
meritless continued submissions by Defendant will not
obstruct the operation of law. The Court has made its
rulings based upon the evidence properly submitted on
November 23, 2021. Defendant’s correspondence is not
evidence.
The Motion for Relief is denied.
¶47 On appeal, Lizabeth argues the circuit court erroneously exercised
its discretion by failing to grant relief pursuant to WIS. STAT. § 806.07(1)(h) and
order a new evidentiary hearing. “Whether to grant relief from judgment under
WIS. STAT. § 806.07(1)(h) is a decision within the discretion of the circuit court.”
Sukala v. Heritage Mut. Ins. Co., 2005 WI 83, ¶8, 282 Wis. 2d 46, 55, 698
N.W.2d 610, 614. “We will not reverse a discretionary determination by the trial
court if the record shows that discretion was in fact exercised and we can perceive
a reasonable basis for the court’s decision.” Id.¶48 Here, the circuit court denied Lizabeth’s motion for relief,
concluding in part that Lizabeth had explicitly and repeatedly advised the court
that she would not attend the November 23 evidentiary hearing. This
determination is supported by the record and therefore not clearly erroneous. See
Sukala, 292 Wis. 2d 46, ¶8. Although Lizabeth argues that her hospitalization
prevented her from attending the November 23 hearing, Lizabeth has not made
any showing that she would have participated in person had she not been
hospitalized. We conclude the circuit court did not err by denying Lizabeth’s
motion for relief.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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