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Appellate Procedure: Void Orders and Finality

Dustardy H. v. Bethany H., 2011 WI App 2; case activity

¶1        This case emphasizes once again the importance of finality in our justice system.  In 2004, the circuit court erroneously granted Dustardy H. parental rights to Christian R. H., a child conceived via artificial insemination by Dustardy’s same-sex partner, Bethany H.[1] Four years later, after Dusty and Beth ended their relationship, Beth moved to void the parental rights order under WIS. STAT. § 806.07(1)(d).[2] The circuit court granted Beth’s motion.  Dusty appeals that 2008 order and a 2009 order denying Dusty’s motion for reconsideration.

¶2        We reverse.  An order is void only if the court rendering it lacked subject matter or personal jurisdiction or denied a party due process of law.  Here, the circuit court concluded its legal errors in the 2004 parentage order deprived it of subject matter jurisdiction.  We conclude a court’s subject matter jurisdiction is not affected by its errors of law.  Thus, the circuit court erroneously exercised its discretion by voiding its 2004 order.

Interesting case, factually and legally, with little assumed significance for SPD practice. (The case involves civil procedure only, so unless you need to use § 806.07 as a vehicle for post-judgment relief, the impact is necessarily limited. That said, the substantive issue of when an order is “void” might have some valence in the criminal-law context.)

Rough background: Dusty and Beth married (more precisely: “participated in a civil commitment ceremony”; but give them the respect they’re due) in Hawaii. As you well know, same-sex marriage isn’t recognized under Wisconsin law, Wis. Const. art. XIII, § 13; § 765.001(2). Beth conceived a child via artificial insemination, and the couple then obtained a court order declaring Dusty to be the legal parent, pursuant to § 891.40. The relationship didn’t last, and Beth successfully moved the circuit court to vacate the order. Dusty appeals; the court reverses, thus reinstating the order, despite explicitly acknowledging, “The circuit court’s most recent orders correctly conclude that it erred in 2004 by granting Dusty parental rights under § 891.40,” ¶10. A circuit court “has no authority outside of the Wisconsin statutes to confer parental rights.” No such authority exists in the statutes to grant parentage to Dusty. “Accordingly, the circuit court erred in 2004 by reaching beyond the statutes to construct its own basis for conferring parental rights,” ¶13.

But even a concededly erroneous order isn’t necessarily void:

¶15      An order is not “void” under WIS. STAT. § 806.07(1)(d) unless the court rendering it lacked subject matter or personal jurisdiction or denied a party due process. Wengerd v. Rinehart, 114 Wis. 2d 575, 578-79, 338 N.W.2d 861 (Ct. App. 1983). …

¶17      A circuit court possesses subject matter jurisdiction to entertain a matter even if its ultimate decision on the issue reflects an erroneous view of the law.  See Mack v. State, 93 Wis. 2d 287, 295, 286 N.W.2d 563 (1980).  For example, a conviction based on a defective criminal complaint is not void because the circuit court still possesses subject matter jurisdiction to render its judgment.  Id. “Even where the error in the law or proceedings is fatal to the prosecution, the circuit court has the power to inquire into the sufficiency of the charges before the court.”  Id. Accordingly, the circuit court’s erroneous legal conclusion does not render its 2004 parentage order void for purposes of WIS. STAT. § 806.07(1)(d).

The court goes on to cite finality of judgment in support of its conclusion, ¶18. The rhetoric the court uses is unfortunate – finality, the court expressly indicates, trumps “fair resolutions of disputes.” Make of that what you will as an abstract principle, there is something to be said for taking into account an already-established parent-child relationship and the harm that undoing it might cause. Estoppel, for that matter, might have been a better (because more fact-specific) doctrine to invoke. Beth joined in the order in the first place, and she ought to be estopped from seeking its rescission after a change of heart years’ later. See, generally, Randy A.J. v. Brendan B., 2004 WI ¶26 (“(1) an action or an inaction that induces; (2) reliance by another; and (3) to his or her detriment”; applying the doctrine to a paternity action).

The court might have chosen still another tack, competency, State v. John W. Campbell, 2006 WI 99:

¶44      Article VII, Section 8 of the Wisconsin Constitution provides that “[e]xcept as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state.” This provision recognizes very broad subject matter jurisdiction in circuit courts. Nonetheless, the validity of judgments in these courts is complicated by our concept of “competency,” which refers to “the power of a court to exercise its subject matter jurisdiction in a particular case.” See State v. Smith, 2005 WI 104, ¶18, 283 Wis.  2d 57, 699 N.W.2d 508; Kohler Co. v. Wixen, 204 Wis.  2d 327, 336, 555 N.W.2d 640 (Ct. App. 1996). In Mueller v. Brunn, 105 Wis.  2d 171, 178, 313 N.W.2d 790 (1982), the court stated that “[i]f a court truly lacks only competency, its judgment is invalid only if the invalidity of the judgment is raised on direct appeal.” Mueller, 105 Wis.  2d at 178. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶8, 273 Wis.  2d 76, 681 N.W.2d 190, went well beyond Mueller, stating that “a lack of competency does not negate subject matter jurisdiction or nullify the judgment. Lack of competency is not ‘jurisdictional’ and does not result in a void judgment.” Mikrut, 273 Wis.  2d 76, ¶34 (citation omitted).

The circuit court had subject-matter jurisdiction over the original order (a conclusion the court of appeals draws in this instance, albeit without analysis, ¶17), because the court was authorized to enter an order declaring someone the legal parent; just not Dusty. That is, what the circuit court lacked was competency, not subject-matter jurisdiction, to declare Dusty the parent. Per Campbell, this defect could only have been raised on direct appeal, or not at all – or so the argument would go.

Indeed, the court more or less adopts a Campbell-type analysis, holding that the order was erroneous, and mentioning, if only as an afterthought, that it could have been challenged on direct appeal, ¶22. But for better or worse, finality-trumps-fairness nonetheless is the path chosen. The court also notes that an erroneous judgment may indeed be challenged, but only under § 806.07(1)(h), and therefore only within a “reasonable time,” § 806.07(2) – Beth doesn’t argue her motion was timely under this provision, ¶21. For an example of vacating a judgment long after the fact under § 806.07(1)(h), given admittedly extreme circumstances, see Shanee Y v. Ronnie J., 2004 WI App 58 (demonstrably incorrect determination of paternity, procured by mother’s lie, overturned more than a decadde later). See, especially, discussion id., ¶11, re: subs. (h) “is to be liberally construed to provide relief from a judgment whenever appropriate to accomplish justice,” such that need to perform justice in light of all the facts outweighs finality – an inversion of the principle as stated by the present court.

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