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TPR – Default as Sanction for Failure to Appear

State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55

Issue/Holding: ¶13 n. 3:

The circuit court did not order a default under Wis. Stat. § 806.02(5). Shirley E. had “appeared” at the hearing by her attorney. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶17, 246 Wis.  2d 1, 629 N.W.2d 768.The circuit court found Shirley E. in default as a sanction for failing to comply with its order to attend a hearing in person. Before a circuit court may enter a default on the ground that a party failed to comply with a court order, the party’s conduct must be egregious or in bad faith. Evelyn C.R., 2001 WI 110, ¶17, 246 Wis.  2d 1, 629 N.W.2d 768; Johnson v. Allis Chalmers Corp., 162 Wis.  2d 261, 276, 470 N.W.2d 859, 878-79 (1991). The circuit court made no finding that Shirley E.’s conduct was egregious or in bad faith before finding her in default. The circuit court ordered the sanction of default on March 8, 2005 ——the first time Shirley E. failed to appear in person after being ordered to do so on February 14, 2004. Shirley E. ultimately failed to attend personally three other hearings in a five month period; her attorney attended all of them. The circuit court failed to consider Shirley E.’s attorney’s explanations about why Shirley E. was not present in person, including difficulty of coming to Wisconsin from out of the state, her status as a parolee, and her lack of funds. A circuit court has discretion in imposing a sanction for noncompliance with an order but must make the appropriate findings to support a sanction of default.

The issue of the egregious nature of Shirley E.’s conduct has not been raised in this court, and we will not address it further.

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