Kimberly C. Niemi v. Martin B. Hying
2019AP001433
| Wis. Ct. App. | Mar 30, 2021Background
- Martin B. Hying and Kimberly Niemi (f/k/a Hying) divorced in 2007; extensive postjudgment litigation followed, including multiple prior appeals the court has deemed frivolous.
- After remittitur from a prior appeal, Attorney Phillip Arieff (current guardian ad litem for the parties’ minor child) moved to adjudicate unpaid GAL fees.
- Following a March 20, 2019 hearing, the circuit court credited Arieff’s testimony, found the GAL work necessary, and ordered Hying to pay $2,663.08 (at $150/month).
- Hying, proceeding pro se, appealed raising multiple challenges: effect of a returned $1,500 motion deposit, entitlement to fees for work responding to contempt and other allegations, alleged misrouting of a 2016 payment, admissibility of a 2011 bill, judge bias/recusal, and defective notice of the hearing.
- The Court of Appeals affirmed, found the appeal wholly frivolous, remanded to the circuit court to determine appellate costs/attorney’s fees, and restricted Hying from filing further motions/appeals against Niemi or Arieff in this court without leave until the $2,663.08 is paid in full.
Issues
| Issue | Hying's Argument | Respondents' Argument | Held |
|---|---|---|---|
| Whether return of Hying’s $1,500 motion deposit barred GAL fees for the contested work | Return of deposit meant the GAL was sanctioned or not entitled to fees for that motion | Deposit was returned as equity; not a sanction or waiver of future/related fees | Court deferred to trial court’s interpretation; return did not bar GAL fees; argument meritless |
| Whether GAL may recover fees for work responding to Hying’s contempt/neglect allegations | Fees for defending against Hying’s accusations were unnecessary and fraudulent | GAL’s billed work was necessary under court order and reasonable | Court credited GAL testimony; fees were for necessary court-ordered services; no fraud found |
| Whether a 2016 payment to Niemi’s counsel should have been forwarded to the GAL | Nonpayment claim lies against Niemi’s counsel (they failed to forward funds), not Hying | Record did not show misrouting; family-law enforcement was the proper mechanism | Circuit court’s finding that Hying was not entitled to relief was upheld; argument lacked authority |
| Admissibility of a 2011 GAL bill (exhibit 6) | Exhibit was improperly admitted and was absent/fabricated | Exhibit duplicated facts already established and affirmed in prior orders | Admission was harmless; duplicated earlier affirmed findings; no prejudice |
| Whether the judge should have recused for bias under § 757.19(2)(g) | Appearance of bias required recusal | Hying did not move to recuse below; such claims are for the judge to decide | Forfeited by failure to move below; claim denied |
| Whether lack of receipt of the February 18, 2019 hearing notice requires reversal | Hying claims he did not receive notice and was prejudiced | Clerk mailed notice to correct address; Hying monitored docket and was not prejudiced | Forfeited as not raised below; even if not received, no prejudice shown; claim denied |
| Whether the appeal is frivolous and what sanctions are appropriate | Hying contends his appeals are meritorious | Respondents sought costs and fees; court reviews merits | Court held the appeal wholly frivolous, remanded for assessment of appellate costs/fees, and limited Hying’s future filings against Niemi/Arieff until GAL fees are paid |
Key Cases Cited
- Flynn v. State, 190 Wis. 2d 31, 527 N.W.2d 343 (Ct. App. 1994) (failure to brief/cite authority undermines appellate claims).
- Howell v. Denomie, 282 Wis. 2d 130, 698 N.W.2d 621 (2005) (appeal frivolous if without reasonable basis in law or equity).
- Holz v. Busy Bees Contracting, Inc., 223 Wis. 2d 598, 589 N.W.2d 633 (1998) (purposes of sanctions include discouraging frivolous actions).
- Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 597 N.W.2d 744 (1999) (sanctions also serve to compensate those forced to defend frivolous litigation).
- Puchner v. Hepperla, 241 Wis. 2d 545, 625 N.W.2d 609 (Ct. App. 2001) (court has authority to limit a litigant’s access for frivolous litigation).
- Gaethke v. Pozder, 376 Wis. 2d 448, 899 N.W.2d 381 (Ct. App. 2017) (when a document is missing from the appellate record, court assumes it supports the trial court’s ruling).
- Laatsch v. Derzon, 380 Wis. 2d 108, 908 N.W.2d 471 (Ct. App. 2018) (law of the case principles bind subsequent proceedings).
- Kalb v. Luce, 239 Wis. 256, 1 N.W.2d 176 (1941) (appellant must show both error and prejudice to prevail).