In Re Paternity of CAS & CDS

518 N.W.2d 285, 185 Wis. 2d 468
CourtCourt of Appeals of Wisconsin
DecidedMay 12, 1994
Docket93-0863
StatusPublished

This text of 518 N.W.2d 285 (In Re Paternity of CAS & CDS) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Paternity of CAS & CDS, 518 N.W.2d 285, 185 Wis. 2d 468 (Wis. Ct. App. 1994).

Opinion

185 Wis.2d 468 (1994)
518 N.W.2d 285

IN RE the PATERNITY OF C.A.S. AND C.D.S.: W.W.W., Petitioner-Appellant,
v.
M.C.S., Respondent-Respondent,
R.J.S., Third-Party Respondent.
Patience D. ROGGENSACK, Guardian ad Litem for C.A.S. and C.D.S., Petitioner-Respondent,
v.
W.W.W., Respondent-Appellant.

No. 93-0863.

Court of Appeals of Wisconsin.

Submitted on briefs October 8, 1993.
Decided May 12, 1994.

*474 For the appellant the cause was submitted on the briefs of Richard J. Auerbach of Auerbach & Porter Law Firm of Madison.

For the respondent-respondent and third-party respondent the cause was submitted on the brief of Richard J. Podell of Richard J. Podell & Associates, S.C., of Milwaukee.

For the petitioner-respondent the cause was submitted on the brief of Patience D. Roggensack and Mary Poison Haefer of Ross & Stevens, S.C., of Madison.

Before Eich, C.J., Gartzke, P.J., and Sundby, J.

EICH, C.J.

The principal issue presented in this case is whether the circuit court has either the inherent or statutory power—apart from the "harassment injunction" statute, § 813.125, STATS.—to enjoin the appellant, W.W.W., from having any contact with two minors he believes to be his children, until they reach the age of eighteen. Other issues relate to whether the *475 children's guardian ad litem, appointed to represent them in a previous action, had standing to seek the injunctions, whether, assuming the court had the authority to enter the injunctions, the evidence supports their issuance and, finally, whether their terms are overly restrictive. We affirm the trial court's orders in their entirety.

I. Background and Statement of Issues

In 1985, W.W.W. commenced a paternity action seeking a declaration that he is the father of two children born to M.C.S. and her husband, R.J.S. W.W.W. had a sexual relationship with M.C.S. during the period in which both children were conceived.

After protracted litigation, including appeals to this court and the supreme court, the action was dismissed, with prejudice, as not being in the best interest of the children. The supreme court affirmed the dismissal in In re C.A.S., 161 Wis. 2d 1015, 468 N.W.2d 719 (1991).

After the supreme court's decision, W.W.W. began contacting C.D.S. and C.A.S., attempting to convince them that he, not R.J.S., is their biological father. Attorney Patience Roggensack, who had been appointed the children's guardian ad litem in W.W.W.'s earlier paternity action, commenced the instant proceedings seeking to enjoin him from having any further contact with the children.

The trial court granted the guardian's request and issued`two injunctions. The first, issued under § 813.125, STATS.,[1] enjoined W.W.W. from having any *476 direct or indirect contact with the children for a period of two years. The second—which the court said it was issuing under the "statutory and inherent power of the court to enforce its judgment [dismissing W.W.W.'s paternity action] and its continuing jurisdiction over the welfare of the[] children under Chapter 767 under the paternity action in which [the court] declared the parental rights of [R.J.S.]"—contains similar restrictions and is to remain in effect until the children reach the age of eighteen.

W.W.W. appeals from the orders issuing the injunctions, arguing: (1) that the guardian ad litem lacked standing to seek the injunctions and improperly instituted the proceedings before the judge who had presided over his earlier paternity action; (2) with respect to the injunction issued under § 813.125, STATS., that the trial court lacked competency to proceed under the statute for failure to comply with applicable time limits for holding the hearing and, alternatively, that the evidence was insufficient to support issuance of the injunction; (3) that the court lacked both "inherent or explicit" authority to issue the "age-eighteen" injunction; and (4) that the injunctions are overbroad. As indicated above, we reject his arguments and affirm the orders.

*477 II Facts

The case has a lengthy history. M.C.S. and R.J.S. have been married for many years and have five children, the youngest of whom are C.A.S. and C.D.S., the children involved in this case. As indicated, M.C.S. had a sexual relationship with W.W.W. during the time C.A.S. and C.D.S. were conceived. The relationship ended shortly after M.C.S. became pregnant with the younger child, C.D.S.

W.W.W. brought his paternity action shortly after C.D.S.'s birth. After hearing the testimony of the parties and several expert witnesses, the trial court concluded that there was a "high probability" that allowing W.W.W. to continue in his efforts to establish himself as the children's father would "more likely than not ... cause damage and possibly irreparable harm to [the children]" and dismissed the action with prejudice. At the same time, the court apparently entered an order declaring R.J.S. to be the children's father.[2] As indicated, the supreme court affirmed the dismissal, concluding, among other things, that "[t]he existing family unit should be kept intact ... for the benefit of C.A.S. and C.D.S.," and that "it is not in the best interests of the children to order a determination of paternity in this case." C.A.S., 161 Wis. 2d at 1039-40, 468 N.W.2d at 729.

Several months later, in March 1992, W.W.W. began frequenting the children's residential and school neighborhoods, often parking his car near their house *478 and school. He spoke to them on more than one occasion—at least once while they were with friends—recounting the details of his past relationship with their mother and telling them that he, not R.J.S., is their real father and that he would "never ... let [them] go."

The children reported these contacts to M.C.S. and R.J.S. and, several days later, Roggensack petitioned the same trial court that had heard W.W.W.'s earlier paternity action for a permanent restraining order preventing W.W.W. from contacting the children. Her petition was grounded on the general provisions of the children's code, on § 813.125, STATS., the "harassment" injunction law, and on "the inherent power of the Court."

The petition was heard on April 2, 1992. After W.W.W., M.C.S. and R.J.S. had testified, W.W.W.'s attorney requested an adjournment, stating that he wanted to question W.W.W. in greater detail about his contact with the children. Over the guardian ad litem's objection, the trial court granted the request and continued the hearing.

After several delays requested by both parties, the hearing continued on November 25, 1992. Having heard all the evidence, the trial court found that W.W.W.'s course of conduct with the children had both harassed and intimidated them, and the trial court issued the injunctions.

Other facts will be referred to in the body of the opinion.

III. The Guardian ad Litem's Standing

W.W.W. argues first that Roggensack lacked standing to bring the injunction action because she had not been reappointed as the children's guardian ad *479 litem after the earlier action had been dismissed. He points to § 767.045(5), STATS., which states that "[t]he appointment of a guardian ad litem ...

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Bluebook (online)
518 N.W.2d 285, 185 Wis. 2d 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-paternity-of-cas-cds-wisctapp-1994.