text:
    In re Wal-Mart Employee Litigation: Kathleen Hermanson, Ardyce Weichbrod and George Otradovec, Plaintiffs-Appellants, v. Wal-Mart Stores, Inc., a Delaware corporation, Defendant-Respondent.
    Court of Appeals

      No. 2004AP2926.

      Submitted on briefs January 31, 2006.

      Decided February 21, 2006.

    2006 WI App 36
    (Also reported in 711 N.W.2d 694.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Robert F. Johnson of Cook & Franke, S.C., of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief oí Bernard J. Bobber of Foley & Lardner, LLP, of Milwaukee.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review denied 7-25-06.

   FINE, J.

¶ 1. Kathleen Hermanson, Ardyce We-ichbrod, and George Otradovec appeal, pursuant to our leave, a non-final order denying class certification under Wis. Stat. Rule 803.08. See Wis. Stat. § 808.03(2) (interlocutory appeals). We affirm.

¶ 2. The operative pleading in connection with this appeal is the plaintiffs' "second amended consolidated complaint." (Uppercasing omitted.) As material, it alleges that the named plaintiffs and other hourly Wisconsin employees of Wal-Mart Stores, Inc., were not paid what Wal-Mart should have paid them when they "worked through all or a portion of their meal and rest breaks." The complaint asserts that the proposed class is made up of "tens of thousands of presently and formerly employed hourly paid Wal-Mart employees" in Wisconsin, and that the alleged short-fall in proper compensation can be proved by Wal-Mart's "computer generated" payroll records. The trial court determined that the proposed class should not be certified under Wis. Stat. Rule 803.08 because, among other reasons, the proposed class would be "unmanageable," recognizing that much of the pertinent Wal-Mart payroll records were generated in the first instance by members of the proposed class (that is, by the hourly employees of Wisconsin Wal-Mart and Sam's Club stores) and that, therefore, "Wal-Mart has a right to examine each individual claimant regarding the circumstances of his or her employment, and each instance of missed break time or off-the-clock work." We agree and, accordingly, do not discuss the other reasons Wal-Mart contends support the order denying class certification. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

¶ 3. Wisconsin Stat. Rule 803.08 provides:

When the question before the court is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.

There are four prerequisites to class certification under this rule:

• "there must be a common or general interest shared by all members of the class";
• "the named parties must fairly represent the interest involved";
• "it must be impracticable to bring all interested parties before the court"; and
• the proposed class must be manageable.

Cruz v. All Saints Healthcare Sys., Inc., 2001 WI App 67, ¶ 12, 242 Wis. 2d 432, 442-443, 625 N.W.2d 344, 349-350; see also Schlosser v. Allis-Chalmers Corp., 65 Wis. 2d 153, 172, 222 N.W.2d 156, 166 (1974) (" '(T)he court must determine whether the advantages of disposing of the entire controversy in one proceeding are outweighed by the difficulties of combining divergent issues and persons.1") (quoted source omitted; parenthetical by Schlosser). A trial court's decision whether to certify a class under Rule 803.08 is vested in its reasoned discretion. Cruz, 2001 WI App 67, ¶ 11, 242 Wis. 2d at 442, 625 N.W.2d at 349. "We will uphold a trial court's determination if it examines the relevant facts, applies a proper legal standard and, in a rational process, reaches a conclusion that a reasonable judge could reach." Ibid.

¶ 4. As the trial court recognized, the major thing that makes the proposed class unmanageable is that the statistics upon which the class must rely were generated in the first instance by the proposed class-members. As we have seen, plaintiffs contend that members of the proposed class were denied promised compensation for working when they were entitled to a break — either to eat or for rest. But whether an employee was on a break or working through, either wholly or partially, the break to which he or she was entitled was, before February of 2001, determined by that employee's own time-clock entries. Wal-Mart contends, and the plaintiffs do not dispute, that not all employees were scrupulously accurate in clocking-in or clocking-out. Indeed, Wal-Mart had a time-adjustment process that permitted employees to seek to correct their clock-out/clock-in entries, and submitted to the trial court what Wal-Mart represents is a random sample of more than 125 Wisconsin Wal-Mart employees who indicated that they used the time-adjustment process in connection with their time-clock entries, including reporting of breaks. Additionally, Herman-son, one of the current named-plaintiffs, admitted during her deposition that there were times when she did not clock-out or clock-in for breaks, and that "[t]here were times" when she would submit a time-adjustment request to report that. Further, one of the original named-plaintiffs testified at her deposition that at the Milwaukee store where she worked she had "heard of misuse of the time clock" where some employees would make time-clock entries for other employees.

¶ 5. Although the plaintiffs attempt to characterize the trial court's "manageability" analysis as an inquiry into "why" an employee might have missed a break, the issue is not "why" but whether the employees' self-generating data accurately reflect that a break was missed at all. Moreover, plaintiffs do not dispute Wal-Mart's assertion in its brief on this appeal that "since February 2001, there are no records that reflect whether an [employee clocked-out] for a break, much less whether the [employee] actually took the break or voluntarily skipped all or part of it." They argue, rather, that they can make their class-action case through statistical analysis of Wal-Mart data, and they submitted an affidavit by a professor in Emory University's Department of Psychology opining that he could combine and compare the multiple threads of Wal-Mart data in Wisconsin and other states, and that his "preliminary analyses reveal instances of employees who worked longer cash register shifts than was indicated by their edited timekeeper and payroll records." He also opined:

The anticipated production by Wal-Mart of all of the fields in the Point-of-Sale database and the other timestamped databases generated by each store's Telxon scanners and computer workstations will permit the comparison of a wide range of time-marked employee activities with the time-clock attendance and payroll records of a broad range of each store's employees from receiving, to inventorying to selling. All work times identified by time-marked employee actions recorded in any one of the numerous data collection systems operating in each store can be compared to the daily time-clock [check-outs or check-ins], edits and additions. All electronic database entries are both employee-number identified and time marked, thereby creating an electronic trail of much of the employee work activity. Therefor, [sic] instances of unpaid off-the-clock work are readily distinguishable from paid work within the computer records.

The professor also indicated that for the time for which "complete electronic data no longer exist," he could develop "models by which the results of the analyses may be extrapolated back to the earlier time periods." As to what he calls the "some off-the-clock work for which there is neither an electronic trail nor a paper trail," he said he would use "questionnaires submitted to the current and former hourly employees to obtain their recollections of such additional unpaid work," and that in his "professional opinion . .. the recall of specific, well-defined events within one's personal experience are [sic] capable of reliable and trustworthy recollection."

¶ 6. The class-action process permitted by Wis. Stat. Rule 803.08 does not trump a defendant's jury-trial right under article I, section 5 of the Wisconsin Constitution, which preserves "inviolate" the "right of trial by jury." Markweise v. Peck Foods Corp., 205 Wis. 2d 208, 224-227, 556 N.W.2d 326, 333-334 (Ct. App. 1996). "This means that the parties to a class-action lawsuit have the right to have all 'juriable issues' decided by the same jury." Id., 205 Wis. 2d at 226, 556 N.W.2d at 333 (quoted source omitted). At the very least that means that Wal-Mart has the right to have a jury decide whether:

• the records generated by the members of the proposed class that underlie many of the proposed-class's claims are accurate; and
• any extrapolation, as projected by the Emory psychology professor, is valid — not only with respect to the statistical methodology, but, also, and critically, the accuracy of what the professor calls in his affidavit "the recall" by Wal-Mart's "current and former hourly employees" of their employment check-in and check-out times during their Wal-Mart careers, because, as the professor's affidavit concedes, any extrapolation depends on the employees' "reliable and trustworthy recollection."

Simply put, Wal-Mart is entitled to have the plaintiffs' statistical conclusions and all the underlying data tested by discovery and examination at trial. Although the Wal-Mart data would be admissible against Wal-Mart at any trial, either as a statement by a party opponent under Wis. Stat. Rule 908.01(4)(b)l-4, see State ex rel. N/S Assocs. v. Board of Review, 164 Wis. 2d 31, 57 n.8, 473 N.W.2d 554, 564 n.8 (Ct. App. 1991), or under Wis. Stat. Rule 908.03(6) (business records), Wal-Mart would not, of course, be foreclosed from challenging the accuracy of that data, especially because much of it was generated in the first instance by the members of the proposed class. Indeed, the plaintiffs concede that Wal-Mart could challenge both the "credibility and weight of the evidence." As Judge Wells cogently recognized, this would require not only the examination of each and every member of the proposed class, but, also, their co-workers and supervisors, and, in some or many cases, their friends and family. An unexecuted affidavit by the Emory professor in the Record estimates that "there are 86,795 former and present [Wal-Mart] employees in Wisconsin, of which 23,911 are 'Active' current employees." To say that such a trial would be unmanageable is somewhat akin to saying that the sun is warm or that the universe is large. Cf. Markweise, 205 Wis. 2d at 227, 556 N.W.2d at 333-334 ("[It] would be nigh impossible to have one jury decide all the issues for each member of the class — such a trial could take years, far beyond the constitution of the most stalwart of our citizens.") (emphasis in original; Cryptosporidium poisoning, with issues of causation and damages). The trial court did not erroneously exercise its discretion in refusing to certify the class, and, accordingly, we affirm.

By the Court. — Order affirmed.

       The Honorable Lee E. Wells denied an initial motion to certify this case as a class action, but permitted those seeking class-action status to re-plead, which they did. Following Judge Wells's retirement, the Honorable Jeffrey A. Kremers entered the order from which this appeal is taken, and relied, in large measure, on Judge Wells's written decision.

       In February of 2001, Wal-Mart employees were told that they were no longer "required to clock out or clock in from breaks."

       Article I, section 5 of the Wisconsin Constitution reads in full:
      The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof.
      The Seventh Amendment to the United States Constitution, which is similar, does not apply to the states. Markweise v. Peck Foods Corp., 205 Wis. 2d 208, 225, 556 N.W.2d 326, 333 (Ct. App. 1996).


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Justin Yang, Defendant-Appellant.
    Court of Appeals

      No. 2005AP817-CR.

      Submitted on briefs January 31, 2006.

      Decided February 21, 2006.

    2006 WI App 48
    (Also reported in 712 N.W.2d 400.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John J. Grau of the Grau Law Office, of Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general.

      Before Wedemeyer, EJ., Fine and Curley, JJ.
   FINE, J.

¶ 1. Justin Yang appeals a judgment entered on a jury verdict convicting him of the repeated first-degree sexual assault of one of his daughters, born in July of 1991. See Wis. Stat. § 948.025(l)(a) (three or more assaults of a child within a specified time). The jury acquitted him of the same charge involving another daughter, born in August of 1990. He claims that the trial court denied him his right to confrontation when it limited his cross-examination of his former wife. We agree and reverse.

I.

¶ 2. Yang and his former wife were married in 1984. They were both born in Laos, and they came to the United States in 1990. Yang became a citizen in 2002, the year he and his former wife divorced. In mid-2001, before the divorce, Yang's former wife moved out of the home she had shared with Yang. At some point, three of their children went to live with their mother, and four, including the two daughters who accused Yang of assaulting them, stayed with him. In 2002, Yang went to Laos to bring to the United States a woman whom he married in October of 2003.

¶ 3. The crux of the State's case against Yang involving the assaults of which he was convicted, was that Yang's daughter, who was then living with Yang, complained to her mother that he had assaulted her and that, as a result, she wanted to live with her, rather than with Yang. Yang's former wife testified that she immediately called a Hmong support group as well as a child-protection agency, but did not pick up the girl and her sister until three days later, when she also called the police. A sexual-assault nurse-practitioner testified that there were no physical signs of an assault when she examined the daughter five days after Yang's former wife called the police and took the girls out of Yang's home.

¶ 4. Yang's defense was, essentially, that either the daughters made up the assault-charges so they could live with their mother, or that the mother and the daughters falsely accused Yang because they were angry about the divorce and Yang's remarriage. Yang's trial lawyer outlined this defense in his opening statement to the jury:

He comes back to the United States and in January of 2003 there's a confrontation with the ex-wife, the mother of his children. During this conversation she questions why did you go and get another wife. And he explains, I needed someone to help me, and she says to him, she says these words to him, she says now maybe you're going to have trouble. That's what she says to him. Six weeks later she calls the police, the ex-wife, and she tells the police that — maybe she calls some other folks, too, Justin Yang has sexually assaulted his two young daughters.

¶ 5. Yang's former wife testified in English, which she said she was able to do, but she also had the help of a translator. When Yang's lawyer tried to ask Yang's former wife on cross-examination about the alleged threat ("maybe you're going to have trouble"), the trial court stopped him.

Q. [by Yang's lawyer] Now, do you — do you remember speaking with Justin Yang in January of 2003:
(Asks for clarification from interpreter.)
A. No, I don't talk to him at all.
Q. You never talked to him at all?
A. No.
Q. You wouldn't call him on the phone?
A. I sometime, I call him, because the children go to visit him and what time they get the children to come back, that's all.
Q. Okay. Were you aware that Justin Yang went to — to Laos in December of 2002?
A. Yes, I know that.
Q. Did you ever talk to him about that?
A. No. No.
Q. Okay. So do you recall in January of 2003 ever having a conversation with Justin Yang, and in that conversation you asked him, why did he go and get another wife? Do you recall that?
A. No.
Q. Are you saying that you don't remember it or it didn't happen?
A. I — no, I don't — I don't call him like that.
Q. Okay. Let me ask you a better question because I'm not necessarily suggesting that you called him. Okay. Let me ask you a better question. Whether it was on the telephone, or in person, did you ever question Justin Yang about him going to Laos in December of 2002 to get another wife?
A. I don't remember about — I remember right, I don't ask him like that.
Q. Okay. Did you ever talk to him about it at all? Just any kind of conversation at all?
A. No.
Q. Okay. Did you ever make the statement to Justin Yang —
THE COURT: Mr. Cubbie [Yang's lawyer], side bar.

(Parenthetical in court reporter's transcript.) The trial court conferred with the lawyers off the record and prevented Yang's lawyer from asking about the alleged threat. In a post-conference reconstruction of the off-the-record discussion, the trial court explained its rationale.

¶ 6. First, it noted that it perceived that Yang's former wife had, in her testimony, denied discussing with Yang his trip to Laos or his new wife.

In if [sic] fact the witness has already indicated they did not have a conversation, what is the point then of asking about specific statements within a conversation that the witness already said never occurred. The only point would be that it is to leave an inference in the question itself in the minds of the jurors.
I think that if you ask whether or not a conversation has occurred, and you've asked enough about the specifics about whether it was a conversation about Laos, whether it was a conversation about Laos and bringing the wife — a new wife home from Laos and a witness tells you that they never talked about that, you're not then allowed to get around that denial by the witness, or that answer by the witness, by making further inquiry about particular statements that may have occurred within that conversation that the witnesses [sic] already said didn't occur.

In denying Yang's motion for a mistrial, the trial court reiterated that it was concerned that if it had permitted the further cross-examination, "it would be tantamount to allowing the defense to get in something that — through their own way of asking a question through a question that they haven't been able to elicit through testimony."

¶ 7. Second, the trial court referred to its earlier ruling excluding evidence that Yang had physically and verbally abused his former wife during their marriage.

Moreover, because it was on what I believe to be an issue of going to the witness's motives, it was going to open the door to that very arena that I advised both counsel was not going to be — was going to be very limited and that was the rehabilitation, an area that would be problematic for both parties, because, depending on how far defense counsel went with that line of questioning, the State was going to obviously have an opportunity to rehabilitate, and I had already made that ruling and so the parties knew that.

In connection with this aspect of its explanation, the trial court indicated that it had taken "defense counsel’s lead actually in an earlier conversation we had had, which was that, Judge, I suspect my inquiry is going to be whether or not she had that conversation, and if she denies it and says no, then that will be the end of it, and then there would be no need for the State to even go into a rehabilitative mode." Significantly, Yang's alleged abuse of his former wife could have been seen by the jury as a reason she left the house they shared, and, also, why she might have had a motive to get him into trouble.

¶ 8. Third, in denying Yang's motion for a mistrial, the trial court also opined that irrespective of whether Yang's former wife had "ill will towards her ex-husband's remarriage" there was nothing in the Record that indicated that this "ill will" was "transferred to the children" so as to spur what Yang contended were their false accusations against him.

¶ 9. As we have seen, the jury convicted Yang of assaulting one daughter, but found him not guilty of assaulting the other. Although Yang testified at the trial, he did not tell the jury about his former wife's alleged threat.

II.

¶ 10. A trial court's decision to admit or exclude evidence is a discretionary determination that will not he upset on appeal if it has "a reasonable basis" and was made" 'in accordance with accepted legal standards and in accordance with the facts of record.'" State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498, 501 (1983) (quoted source omitted). Whether a trial court's decision to admit or exclude evidence comports with legal principles, however, is a matter that we review de novo. State v. Pittman, 174 Wis. 2d 255, 275, 496 N.W.2d 74, 82 (1993). One of the trial-process concerns that sets boundaries on what evidence the trial court may exclude in criminal trials is the defendant's right to confrontation.

Every defendant in a criminal case is entitled to confront his or her accusers: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." U.S. Const. amend. VI. This clause applies to the states as well as to the federal government. Pointer v. Texas, 380 U.S. 400, 406 (1965). The Wisconsin Constitution also guarantees the right to confrontation: "In all criminal prosecutions the accused shall enjoy the right... to meet the witnesses face to face." Wis. Const, art. 1, § 7. The two clauses are, "generally," coterminous. State v. Hale, 2005 WI 7, ¶ 43, 277 Wis. 2d 593, 607, 691 N.W2d 637, 644.

State v. Ellington, 2005 WI App 243, ¶ 11, 288 Wis. 2d 264, 277, 707 N.W.2d 907, 913.

[A] defendant's right to confront the witnesses against him is central to the truthfinding function of the criminal trial. In Davis v. Alaska, 415 U.S. 308 (1974), the United States Supreme Court declared that "[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Id. at 315-16. The right of cross-examination is more than a desirable rule of trial procedure. It is, indeed, "an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal."
However, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. As acknowledged in the case of Delaware v. Van Arsdall, 475 U.S. 673 (1985):
It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. And as we observed earlier this Term, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."

Id. at 679.

State v. McCall, 202 Wis. 2d 29, 43-44, 549 N.W.2d 418, 424 (1996) (some quoted sources and some internal citations omitted). Although we respect the trial court's "wide latitude," we nevertheless conclude on our de novo review of the constitutional issue that Yang's right to confrontation was unduly truncated.

¶ 11. Inquiry into a witness's bias is always material and relevant. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (bias and improper motive of witness are never collateral). John Henry Wigmore has characterized cross-examination as "beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 Wigmore, Evidence 1367 (Chadbourn rev. 1974). Although, as Van Arsdall observes, this does not mean there can be no limits on a defendant's cross-examination seeking to expose bias, the great engine only has power if the trial court does not apply too-restrictive a governor or, to use an old railroading term, shunt it to a "dead track." We analyze Yang's confrontation-denial contention against this background.

¶ 12. First, it is apparent from the transcript that Yang's former wife had fluctuating difficulty in understanding and answering questions. Thirteen times during her thirty-one-page testimony she asked the translator for clarification or help, and, of course, we have no way of knowing what the translator said to Yang's former wife in Hmong, or whether Yang's former wife understood either the full import of the lawyers' questions or nuanced inferences inherent in any language that often filter total comprehension for non-native speakers. Indeed, as material to the issue on this appeal, we do not know what Yang's former wife asked the translator, or what the translator said in response, when the transcript merely says, "(Asks for clarification from interpreter.)."

¶ 13. Both the legislature and the Wisconsin Supreme Court have recognized that fair trials require comprehension of the spoken word — by parties, by witnesses, and by fact-finders. See Wis. Stat. § 885.38 (interpreter in court proceedings); State v. Neave, 117 Wis. 2d 359, 363-366, 344 N.W.2d 181, 183-184 (1984), overruled on other grounds by State v. Koch, 175 Wis. 2d 684, 693-694, 499 N.W.2d 152, 158 (1993); see also State v. Santiago, 206 Wis. 2d 3, 13, 556 N.W2d 687, 690 (1996); The Wisconsin Court INTERPRETERS Handbook, available at http://www.wicourts.gov/services/interpreter/docs/hand book.pdf. Although Yang does not contend that he was denied a fair trial because of the language difficulties per se, a witness's comprehension affects our analysis of whether a trial court can cut-off cross-examination prematurely. Here, as we have seen from the transcript's rendition of the questions asked by Yang's trial lawyer of Yang's former wife, and the answers he received, his inquiry into that area was not yet closed. Accordingly, the trial court's invocation of, in essence, "asked-and-denied" to move the trial along was not yet justified, given the critical nature of motive to Yang's defense.

¶ 14. Second, although as the trial court noted, and as the State argues on appeal, there was no direct evidence of collusion between Yang's former wife and the children who asserted that Yang had sexually assaulted them, that is an inference that Yang was entitled to argue to the jury; not every fact in a trial is provable by direct-evidence. Indeed, "circumstantial evidence is oftentimes stronger and more satisfactory than direct evidence," State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752, 755 (1990), and juries are routinely told that circumstantial evidence can be as valuable to the jury as direct evidence, Wis JI — Criminal 170, although Yang's jury was not, apparently because neither side asked for the instruction.

¶ 15. Third, insofar as the trial court was concerned that the jury would accept assertions nested in the questions Yang's lawyer asked Yang's former wife on cross-examination, as long as the lawyer had a good-faith basis for asking the question, see Oostendorp v. Khanna, 937 F.2d 1177, 1181 (7th Cir. 1991) (need good-faith basis to ask question), neither he nor the jury was bound by any denial by Yang's former wife, see Pautz v. State, 64 Wis. 2d 469, 476, 219 N.W.2d 327, 330-331 (1974) (jurors not bound by even uncontra-dicted expert-witness testimony); Krueger v. Tappan Co., 104 Wis. 2d 199, 203, 311 N.W2d 219, 222 (Ct. App. 1981) ("The jury is not bound by the opinion of an expert, however, even if the opinion is uncontra-dicted."). We assume that Yang's trial lawyer had a good-faith basis to ask Yang's former wife about her alleged upset over Yang's remarriage because Yang's trial lawyer raised that issue in his opening statement, see Najafi v. United States, 886 A.2d 103, 108 (D.C. 2005) (must have good-faith basis for opening statement), and neither the State nor the trial court has contended otherwise. Thus, Yang was entitled to have the jury decide from his lawyer's questions and the nature of his former wife's responses whether she was telling the truth when she denied ever having discussed with Yang his trip to Laos or his remarriage. Thus, he was also entitled to ask about the alleged threat.

¶ 16. Fourth, as pointed out by both the State on this appeal, and by the trial court, Yang testified but he did not tell the jury that his former wife had threatened him. The Record does not reveal why, but it may very well be that Yang's trial lawyer believed that the trial court's earlier ruling foreclosed further exploration of that area.

¶ 17. This was a close case, as evidenced not only by the split verdict but also by the State's acknowledgment during its opening statement that the case against Yang rested on the "credibility" of the various witnesses. Indeed, the State told the jury during its opening statement that the jury should assess credibility of the witnesses by, among other things, asking themselves whether "they have a motive to lie." Although the State represented to the jury in that opening statement that no such motive would be "established on the record," the jury was, of course, free to make its own determination. The cross-examination of Yang's former wife by Yang's trial lawyer would have been an appropriate tool for them to use in making that assessment. In light of all this we cannot say, as the State urges us to do, that "it is 'clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" See State v. Shomberg, 2006 WI 9, ¶ 18, 288 Wis. 2d 1, 15-16, 709 N.W.2d 370, 377 (quoted sources and second set of internal quotation marks omitted).

¶ 18. In sum, we conclude on our de novo review of the constitutional issue presented by this appeal that the trial court should not have derailed Yang's cross-examination of his former wife. Accordingly, we reverse and remand for a new trial.

By the Court. — Judgment reversed and cause remanded.

       When Yang testified, the trial court permitted the State to ask Yang whether he had ever hit his former wife during their marriage and whether he had "threatened to kill her the day that she left." Testifying in Hmong through an interpreter, Yang denied both accusations, and, also, denied assaulting either of his daughters. The trial court ruled that the questions about Yang's alleged threat to kill his wife and whether he had hit her during their marriage were admissible because Yang had "opened the door" by asserting during his direct-examination that his former wife "left me to go live with somebody else and gave me so much pain."


author: HOOVER, PJ.

text:
    In re the Marriage of: Cora Lee Scheuer, Petitioner-Respondent, v. Bradley Scheuer, Respondent-Appellant.
    Court of Appeals

      No. 2004AP3162.

      Submitted on briefs February 6, 2006.

      Decided February 22, 2006.

    2006 WI App 38
    (Also reported in 711 N.W.2d 698.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Jason W Whitley of Novitzke, Gust, Sempf & Whitley, Amery.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Kathleen M. Gionis of Gionis Law Office, St. Croix Falls.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   HOOVER, PJ.

¶ 1. Bradley Scheuer appeals a judgment of divorce and an order denying reconsideration, alleging two errors. First, Bradley argues the trial court erred when it based its maintenance order on Bradley's earning capacity rather than his actual income. Second, Bradley contends the trial court failed to consider tax consequences when it divided the marital estate. Because we discern no erroneous exercise of discretion by the trial court, we affirm the judgment and order.

Background

¶ 2. Bradley and Cora Lee Scheuer were married July 29, 1978. Cora petitioned for divorce on April 23, 2003. The couple had two children, hut both were adults at the time of the divorce.

¶ 3. Bradley had been employed at Andersen Windows for twenty-three years, earning approximately $20 an hour. Cora, employed at Wood Goods, was earning around $12.70 an hour. On May 6, 2003, the court commissioner entered a temporary maintenance order, with Bradley paying Cora $300 per month.

¶ 4. In December 2003, the parties had their first appearance before the trial court. One issue was whether maintenance should be reduced or terminated because Bradley had lost his job in July. He had been terminated, and Cora alleged he had been fired for misconduct on the job. According to Cora's testimony, Bradley had told her he would rather just quit his job than pay maintenance. She also stated he had repeated disciplinary problems at work, particularly with his supervisors, and had been ordered to attend anger management classes. Bradley admitted he skipped work for five days in a row, although he asserted he had taken vacation days. The court eventually suspended maintenance as of January 1, 2004, and ordered Bradley to seek work. Bradley later found a new job paying $11.74 per hour.

¶ 5. As part of the final divorce decree, however, the trial court imputed an annual earning capacity of $41,875, or $20.13 per hour, to Bradley. The trial court explained:

I'm finding that your earning capacity is $20 per hour and that is based on the fact that you were in a job in which you had long time job security, and an opportunity to continue had it not been for your own misconduct, and your misconduct was the sole reason for your termination and for the now demonstrated and claimed actual lower earnings. Had you not committed misconduct you would have been continuing at a rate of at least $20 per hour.

Based on the imputed earning capacity, the court ordered Bradley to pay maintenance for fifteen years: $400 per month for the first five years, $500 per month for the second five years, and $600 per month for the third five years.

¶ 6. In the property division, the court attempted to achieve an equal division. Bradley was awarded, among other things, the St. Croix Falls marital homestead valued at $235,000 and subject to a mortgage; eighteen and one-half adjacent acres of land, valued at $52,000; a forty-acre parcel in Webster offset by a parcel Cora received; a 401k plan from Andersen Windows valued at $27,637; and Andersen Windows stock valued at $171,616, which Bradley rolled into an IRA at Edward Jones.

¶ 7. As a result of the property division, Bradley owed Cora an equalization payment of approximately $125,000. Despite earlier statements to the court indicating he would sell or refinance some of the real estate, Bradley elected to withdraw funds from his IRA to complete the payment, meaning he would pay income tax and penalties on the distribution. Accordingly, he moved for reconsideration of the property division, arguing the tax consequences caused the division to deviate from the equal split the court intended. The court denied the motion. Bradley appeals.

Discussion

Maintenance and Imputed Earning Capacity

¶ 8. Maintenance serves two purposes: to support the recipient spouse in a manner reflecting the needs and earning capacities of the parties — the support objective — and to ensure a fair and equitable financial arrangement between the spouses — the fairness objective. Hacker v. Hacker, 2005 WI App 211, ¶ 9, 287 Wis. 2d 180, 704 N.W.2d 371. Ordinarily, we review a maintenance award for an erroneous exercise of discretion. Van Offeren v. Van Offeren, 173 Wis. 2d 482, 492, 496 N.W.2d 660 (Ct. App. 1992).

¶ 9. This rule, however, is subject to a "shirking" exception. Id. When shirking is established, it is appropriate to consider the obligor's earning capacity instead of his or her actual earnings. Id. To support a shirking determination, the trial court "need find only that a party's employment decision to reduce or forego income is voluntary and unreasonable under the circumstances." Chen v. Warner, 2005 WI 55, ¶ 20, 280 Wis. 2d 344, 695 N.W.2d 758. Ordinarily, the legal question of reasonableness is a question of law, but because the trial court's legal conclusion is so intertwined with the factual findings necessary to support it, we should give weight to the trial court's ruling. Van Offeren, 173 Wis. 2d at 492-93. Therefore, we review a shirking determination as a question of law, but one to which we pay appropriate deference. Chen, 280 Wis. 2d 344, ¶ 43 (adopting Van Offeren standard); Van Offeren, 173 Wis. 2d at 493.

¶ 10. Bradley asserts it was improper to impute his earning capacity without expert testimony about his actual capacity. Aside from the fact that he never attempted to offer such testimony, Bradley cites absolutely no authority for his proposition. We need not address arguments unsupported by reference to legal authority. Kruczek v. Department of Workforce Dev., 2005 WI App 12, ¶ 32, 278 Wis. 2d 563, 692 N.W2d 286 (Ct. App. 2004). Further, under the facts of this case, expert testimony was not necessary to assist the court in determining Bradley's earning capacity. The trial court properly considered Bradley's demonstrated earning ability — the wage he had been earning at Andersen Windows — in determining his earning capacity for calculating maintenance.

¶ 11. Bradley complains that the trial court never found he was shirking, nor did it determine he intentionally lost his job to avoid paying maintenance. But "shirking" does not require a finding the obligor reduced his or her earnings for the purposes of avoiding the maintenance obligation, nor must the court specifically use the word "shirking." See Smith v. Smith, 177 Wis. 2d 128, 137, 501 N.W.2d 850 (Ct. App. 1993). The test is whether the reduction in actual earnings was voluntary and unreasonable under the circumstances. Id.

There is no set list of factors which are decisive in a shirking determination. However, perhaps the most common factor accompanying such a finding is a voluntary of self-inflicted change in financial circumstances. For example, in such cases ... [the obligor] has been fired or demoted for misconduct... or by some other means has brought about his or her reduced ability to pay support.

Wallen v. Wallen, 139 Wis. 2d 217, 225-26, 407 N.W.2d 293 (Ct. App. 1987) (emphasis added; internal citations omitted).

¶ 12. In this case, the court found Bradley's actual earnings were reduced because of his voluntary misconduct at Andersen Windows, thus justifying use of imputed earning capacity. The court also found Bradley's misconduct at work resulted from his unwillingness to deal realistically and reasonably with his divorce and was the sole reason he was terminated. We discern no clear error in the trial court's factual findings and, accordingly, we agree with its implicit conclusion of Bradley's unreasonableness. Thus, the trial court did not erroneously exercise its discretion in setting a maintenance award based on imputed, rather than actual earning capacity.

Tax Consequences and Property Division

¶ 13. When dividing the marital estate, the court starts from a presumption of an equal division. Wis. Stat. § 767.255 (2003-04). In dividing the estate, the court is to consider a multitude of factors, including the tax consequences to the parties. Wis. Stat. § 767.255(3)(k). Property division is a discretionary determination. Preiss v. Preiss, 2000 WI App 185, ¶ 10, 238 Wis. 2d 368, 617 N.W.2d 514.

¶ 14. Bradley argues the court attempted a 50/50 division, but "the practical application of the order resulted in a harsh and unequal division of property." His basis for this assertion is the "consequences and the cost of asset liquidation" — allegedly $20,000-$45,000 depending on how the Internal Revenue Service would penalize him — after Bradley decided he would have to withdraw funds from his Edward Jones account to make the equalization payment.

¶ 15. Bradley's argument fails for two reasons. First, the record reveals that while the trial court attempted an equal split down to the penny, its final determination was skewed slightly because Bradley had concealed or failed to account for approximately $14,000-$16,000 worth of stock. Because an element of equity underlies the statutory presumption, it is difficult to accept Bradley's complaint of an unequal division when he was less than forthright from the beginning, tipping the balance in his own favor.

¶ 16. More substantively, however, the record does not hear out Bradley's complaint. Bradley repeatedly referred to selling the marital home, and was warned by the trial court of the tax consequences of an IRA withdrawal, but presented no evidence of any income taxes or related penalties for the court to consider until after the court had settled the property division.

¶ 17. At the first motion hearing in December 2003, when Bradley protested Cora's proposed sale of an investment property because he thought her appraised value was too low, the court suggested putting the property in Bradley's column at his price, but warned that Bradley might have to sell some assets:

THE COURT: The easy way to do this is just put it in ... Mr. Scheuer's column. He is the one that thinks it's worth all that money ....
[CORA'S ATTORNEY]: We can do that. I don't know how he is going to come up with the money to pay her off because he wants the marital homestead and then —
THE COURT: — he might have to sell something. If he is here asserting today that it is worth all that money then I guess he's going to have to — is that what you want to do ...?

Later at that hearing, when Bradley was examined on how he was paying the mortgage on the marital estate, he indicated he had been making withdrawals from a smaller retirement account. When asked how he would pay the mortgage when the account was depleted, he answered, "I'm going to have to sell my house, obviously."

¶ 18. On the first day of trial, the court asked Bradley about the marital homestead:

THE COURT: Okay, one of the things we need to do today, though, is we need to try and develop some idea here, it looks to me like there's going to be a huge amount of money. You want the house; is that right, Mr. Scheuer?
[BRADLEY]: No, I'll sell it.
THE COURT: Pardon?
[BRADLEY]: I'll have to sell it.
THE COURT: Well, do you want... to take it at this 235 and you sell it and if it sells for more than that you get whatever it is that sells for and if it's less you get whatever is less, or do you want an order for the house to be sold?
[BRADLEY]: No, I'll take it at 235.

¶ 19. The court then asked Bradley if he understood he would owe Cora "a ton of money," and asked how long Bradley would need to sell the land or borrow against it to come up with the equalization payment money.

[BRADLEY]: Well, then, depends on what I'm going to do. I mean I still — if we get it all said and done I can pull part it of it out of my Edward Jones. See what I'm saying? So I won't have to sell it all —
THE COURT: Sir, I understand that, but... I'm going to tell you there's some significant tax implications to pulling it out of your Edwards Jones account.
[BRADLEY]: Well, yes, I know that.
THE COURT: Okay, so you know those are financial decisions you're going to have to make and I can't advise you on... .

¶ 20. On the second day of trial, when Cora asked the court to order Bradley to refinance the home and remove her name from the mortgage, the court replied, "I don't know that I am going to require him to refinance. He's selling the house; it would make no sense to go through refinancing costs at this point."

¶ 21. At no point during the trial did Bradley dispute the court's inherent assumption he would be selling the home. Even on appeal, Bradley does not claim the trial court erroneously held he had intended to sell the home to make the equalization payment. Moreover, it was not until the hearing on the motion for reconsideration that Bradley mentioned anything further about withdrawing from the IRA and incurring penalties. Even then, no information was presented, but rather, only his counsel's assertion that the IRS would penalize him anywhere from $20,000 to $45,000. The court ruled:

[Bradley] presented at the time of trial that his intention was to refinance the St. Croix Falls property and that that would not result in any tax consequences. He didn't say that that would not result in any tax consequences, but the Court considered how he was going to do his — or how he was going to pay this at the time of trial, and apparently now he's saying that he's going to withdraw it from this Edward Jones account?
He should have done what he said he was going to do ... [Bradley] absolutely was obsessed with having that St. Croix Falls real estate. That was of pinnacle importance to him, and he was going to use it to refinance it and pay her off her property settlement, and there was no mention until [this] morning that he was going to invade this Edward Jones account or that he would be required to... and that's what would trigger the tax consequences.

¶ 22. Indeed, after the court made its observations, Cora's attorney asked Bradley whether he had attempted to sell his parcel in Webster. He responded, "Well, why should I?" When the attorney asked if he attempted to sell any of the St. Croix Falls property, he answered, "Well, why should I have to sell my property?" It is therefore not surprising the court also stated that Bradley had been "an obstructionist.. . with regard to resolving this case almost from Day One ...."

¶ 23. Ultimately, this is not a situation where the trial court ordered an asset sold and its proceeds credited to one party without also considering the resulting tax liabilities, such as capital gains, and offsetting them in the final calculation. Rather, the court granted Bradley the assets he requested despite the court's offer to order the homestead sold, and despite the court's admonition that a large equalization payment to Cora would be necessary. Since it was anticipated that Bradley would sell or refinance the property, there was no reason for the court to have considered the tax consequences of Bradley's withdrawal from his IRA. That Bradley ultimately chose to raise funds through a method that resulted in significant penalties to himself is his erroneous exercise of discretion, not the trial court's.

By the Court. — Judgment and order affirmed.