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Contempt — Remedial – Requirements: Evidentiary Hearing and Findings

Evans v. Luebke, 2003 WI App 207, PFR filed 10/23/03

Issue/Holding:

¶24. Upon the filing of a motion seeking remedial sanctions for contempt, an on-the-record hearing must be held “for due process purposes.” See Mercury Records Prods., Inc. v. Economic Consultants, Inc., 91 Wis. 2d 482, 504, 283 N.W.2d 613 (Ct. App. 1979). The evidence adduced at the hearing must support resultant findings of fact that the contemnor engaged in “intentional … [d]isobedience, resistance or obstruction of the authority, process or order of a court.” Wis. Stat. § 785.01(1)(b). No evidentiary proceedings were conducted in this case, nor were facts stipulated to on the record that would support the necessary findings. We conclude that the lack of evidentiary proceedings, as well as the absence of proper findings to support the imposition of sanctions, violate both the requirements of ch. 785 and of due process. See Wis. Stat. § 785.03(1)(a) (“The court, after notice and hearing, may impose a remedial sanction ….” (emphasis added)); Dennis v. State, 117 Wis. 2d 249, 261, 344 N.W.2d 128 (1984) (“[S]tatutory requirements and due process require that the defendant be aware of what he must answer to so that he can be prepared to offer proof and explanation showing his good faith efforts to comply with the court’s orders.”).¶25. We conclude that the circuit court should have followed procedures under Wis. Stat. § 785.03(1)(a) for imposing remedial sanctions but did not do so. Those procedures require, at a minimum, notice that sanctions for contempt are being sought, and in the absence of stipulated facts, an evidentiary hearing sufficient to permit the court to make specific findings regarding whether the alleged contemnor intentionally disobeyed its orders.

(Footnotes omitted, in which court underscores principle that trial court factual findings are essential; and also declines to find waiver.)

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