source: Caselaw Access Project

author: WEDEMEYER, PJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Marketta A. Hughes, Defendant-Appellant.

    Court of Appeals

      No. 2004AP2122-CR.

      Oral argument May 17, 2005.

      Decided June 14, 2005.

    2005 WI App 155
    (Also reported in 702 N.W.2d 87.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John T. Wasielewski of Wasielewski & Erickson, Milwaukee. There was oral argument by John T. Wasielewski.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí Michael C. Sanders, assistant attorney general, and Peggy A. Lautenschlager, attorney general. There was oral argument by Michael C. Sanders.

    Before Wedemeyer, PJ., Curley and Kessler, JJ.

       Petition to review denied 8-25-05.

   WEDEMEYER, PJ.

¶ 1. Marketta A. Hughes appeals from a judgment entered after she pled guilty to charges of child neglect resulting in death, intentional physical abuse of a child, and reckless physical abuse of a child, contrary to Wis. Stat. §§ 948.21(1), 948.03(2)(b) and 948.03(3)(b) (2003-04). Hughes also appeals from an order denying her postconviction motion, wherein she sought to withdraw her plea to the child neglect charge. She claims that, as a matter of law, she cannot be considered a "person responsible for the [victim's] welfare," which was the second element of the child neglect charge. Accordingly, she asks this court to allow her to withdraw her plea on that charge. Because we reject Hughes's claim that she cannot be considered a person responsible for the victim's welfare, we affirm the judgment and order.

BACKGROUND

¶ 2. On April 2, 2003, April Gooden asked Etter Hughes to care for Gooden's one-year-old child, Bryan A., because Gooden was being evicted from her apartment. Etter agreed. Etter lived with her two children, Marketta, age 17, and her younger sister, Adreana. Etter's nineteen-year-old sister, Equiller Hughes, also lived with Etter. During the two-week time period within which Bryan was living in the Hughes home, Marketta was asked by Etter to assume a shared responsibility for the child's welfare. Marketta admitted this fact.

¶ 3. On April 15, 2003, Etter noticed that Bryan's hands were swollen, that he had a burn mark on his hand, and that he also had red dots on his forearm. Later that day, she noticed that Bryan's head was very hot, he began to look cross-eyed, and had diarrhea. He started to move in strange motions and then passed out. Etter then called 911, but Bryan died before paramedics arrived. The cause of death was "blunt force trauma about the entire body, which with the culmination of all the injuries caused the child's death."

¶ 4. Marketta admitted to striking Bryan repeatedly during the time he lived with the Hugheses. Specifically, she recounted that on April 5, she struck him twenty times on the thigh really hard; that on April 7, she struck him ten times on his right arm; and that on April 10-12, she pulled him by the ears and attempted to lift him by his ears. On April 13, Marketta grabbed Bryan by his right arm and spun him around until she heard a popping noise in his arm.

¶ 5. Equiller admitted to repeatedly mistreating Bryan because he got on her nerves. She struck him on the buttocks, legs and arms. On April 14, Equiller stated that she was upset with Bryan and grabbed him by the arms, yanking him off the ground. She heard his arms snap and dropped him to the ground. The next day, Equiller and Marketta noticed that Bryan's arm was injured. They reported this to Etter, but no medical attention was sought until the 911 call.

¶ 6. Marketta was originally charged with first-degree reckless homicide, but the charges were later amended, reducing the first-degree reckless homicide charge to child neglect resulting in death. At the plea hearing, the prosecutor supplemented the facts in the complaint to provide a factual basis for the plea:

[A]round the beginning of April [Marketta's mother] Etter Hughes [with whom] she lived ... took custody of Brian A[.] from Brian A[.]'s mother.
That at times Etter Hughes delegated responsibility for the welfare of Brian A[.] to Marketta Hughes and Marketta Hughes did assume the responsibility of the welfare of Brian A[.] and that on April 15th in the year 2003 Marketta Hughes realized that Brian A[.] was injured rather severely because of the obvious injuries to the arm that she failed at that time to take immediate action in order to help Brian A[.] remedy the pain and the injuries to the arm and I believe that her intentionally doing this is a factual basis which would establish her intentional contribution to the neglect of the child that resulted in his death.

¶ 7. Defense counsel acknowledged that Marketta certainly was a person responsible for the child's welfare, although she was not solely responsible. The court reviewed the elements of the child neglect charge with Marketta. With regard to the second element of neglecting a child resulting in death, the following exchange occurred:

THE COURT: The second element would be that you were a person responsible for the welfare of Brian A[.]. I am reading from the jury instruction ....
You weren't the only person, but over the course of this time frame from roughly April 2nd to roughly April 15th you were a person responsible for his welfare; is that correct?
THE DEFENDANT: Yes, sir.

¶ 8. Marketta then pled guilty. She was sentenced to fourteen years with six years' initial confinement and eight years' extended supervision. Postconviction, Mar-ketta filed a motion seeking to withdraw her plea to the child neglect charge on the basis that, as a matter of law, she cannot be a "person responsible for the welfare of the child." The trial court denied the motion. She now appeals.

DISCUSSION

¶ 9. The issue in this case is whether Marketta was a person responsible for the welfare of Bryan. She contends that because she is not identified within the definition section of Wis. Stat. § 948.01(3) and because she was only seventeen years old at the time, she cannot be a person responsible for Bryan's welfare. The State responds that neither the statutory language nor Marketta's age results in a conclusion that Marketta was not a person responsible for Bryan's welfare. We agree.

¶ 10. This case arises following the trial court's refusal to allow Marketta to withdraw her guilty plea. A defendant who seeks post-sentencing plea withdrawal must establish by clear and convincing evidence that denying his or her motion to withdraw his or her plea will result in a manifest injustice. State v. Thomas, 2000 WI 13, ¶ 16, 232 Wis. 2d 714, 605 N.W.2d 836. A trial court's decision whether to allow plea withdrawal is discretionary and will be upheld as long as the trial court considered the pertinent facts, applied the correct law and reached a reasonable determination. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 635, 579 N.W.2d 698 (1998); State v. Black, 2001 WI 31, ¶ 9, 242 Wis. 2d 126, 624 N.W.2d 363.

¶ 11. Here, Marketta claims that the manifest injustice resulted because she was told by everyone around her that she was a person responsible for the welfare of Bryan. She contends that it was not until after judgment was entered that she was informed that she could not legally satisfy the definition of a person responsible for the welfare of a child. The trial court determined that Marketta did satisfy the legal definition of a person responsible for the welfare of a child and therefore her claim of manifest injustice fails. We agree.

¶ 12. Marketta challenges her conviction for neglecting a child, which is found at Wis. Stat. § 948.21(1), and provides: "Any person who is responsible for a child's welfare who, through his or her actions or failure to take action, intentionally contributes to the neglect of the child is guilty of a Class A misdemeanor or, if death is a consequence, a Class D felony." The phrase "person who is responsible for a child" is not defined in the statute. However, this phrase is defined in the definitions section of chapter 948 and provides:

(3) "Person responsible for the child's welfare" includes the child's parent; stepparent; guardian; foster parent; treatment foster parent; an employee of a public or private residential home, institution or agency; other person legally responsible for the child's welfare in a residential setting; or a person employed by one legally responsible for the child's welfare to exercise temporary control or care for the child.

Wis. Stat. § 948.01(3). Marketta argues that she does not fall into any of the categories delineated in the statute. The trial court disagreed, ruling that Marketta was a "voluntary caretaker" in that she had been employed by her mother to exercise temporary care for Bryan. Thus, Marketta would be included in the last category of the statutory list under § 948.01(3).

¶ 13. In reaching its decision, the trial court relied on State v. Sostre, 198 Wis. 2d 409, 542 N.W.2d 774 (1996), wherein the supreme court held that a live-in boyfriend can be a person responsible for the welfare of a child in his role as a voluntary caretaker. Id. at 411. In Sostre, the boyfriend had been asked by the child's mother to take care of the child while the mother was away. Id. The court ruled that, under these circumstances, the boyfriend fell into the last delineated category of Wis. Stat. § 948.01(3), because he was employed by a person legally responsible for a child to care for the child. Id. at 415.

¶ 14. Marketta's attempts to distinguish Sostre are unavailing. Here, Marketta's mother, Etter, was the person legally responsible for Bryan. She agreed to be his guardian until the end of April. Etter then engaged Marketta to provide child-care services for Bryan. While Marketta was in charge of caring for Bryan, she most definitely was a person responsible for his care.

¶ 15. We are further not persuaded by Marketta's contention that because she was not eighteen years old, she cannot be considered a responsible person. There is no indication that the statutory language requires a person to be eighteen years old in order to satisfy the definition. In fact, the legislative history reveals that the legislature specifically removed a requirement that a person be eighteen years old in order to fall under the statute. Wisconsin Stat. § 947.15 (1987-88) specifically applied to persons eighteen years of age or older. When the statute was revised in 1987, however, the legislature removed the age restriction. The modification by the legislature was logical. With the age restriction, all babysitters under the age of eighteen would not be considered responsible for the care of children entrusted to them. Similarly, any sixteen- or seventeen-year-old employees of private residential agencies would not be considered responsible persons.

¶ 16. We conclude that the plain language of the statute makes clear that a seventeen-year-old employed by a parent to care for the parent's child can be a person responsible for the welfare of the child. The record reflects that Marketta freely chose to assume responsibility for the welfare of Bryan at her mother’s request. Thus, Marketta became a voluntary caretaker of Bryan and, as such, she was a person responsible for his welfare.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Hughes does not challenge the convictions for intentional physical abuse of a child or reckless physical abuse of a child.


author: CANE, C.J.

text:
    Edward N. Gerczak, Jr., Appellant, v. Estate of Edward N. Gerczak, Sr., by his Personal Representative Gary Klise, Respondents.
    Court of Appeals

      No. 2005AP70-FT.

      Submitted on briefs May 16, 2005.

      Decided June 14, 2005.

    2005 WI App 168
    (Also reported in 702 N.W.2d 72.)

      On behalf of the appellant, the cause was submitted on the briefs of Thomas O. Schultz of Green Bay.

      On behalf of the respondent, Gary KHse, the cause was submitted on the brief of Brian R. Mudd of Green Bay
    On behalf of the respondent, Estate of Edward N. Gerczak, Sr., the cause was submitted on the brief of Robert R. Gagan of Calewarts, Duffy, Maocell & Gagan of Green Bay.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   CANE, C.J.

¶ 1. Edward Gerczak, Jr., appeals a judgment and order that his contested claim against his father's estate for the value of uncashed payroll checks dating from 1990, 2000, and part of 2001 is barred by Wis. Stat. § 893.44(1), the statute of limitations for actions on unpaid wages. Edward, Jr. argues that these checks represented loans to the family business rather than unpaid wages and that his action is governed not by the two-year statute of limitations for unpaid wages, but the six-to-ten-year limitation for actions on notes, Wis. Stat. § 403.118(2), or the six-year limitation for actions on contracts, Wis. Stat. § 893.43. Edward, Jr. further argues that the court erred when it determined that, under Wis. Stat. § 885.16, the so-called "deadman's statute," his wife Mary Gerczak was incompetent to testify that Edward, Sr. was in the habit of treating payroll checks as loans.

¶ 2. Because we conclude that, for the purposes of Wis. Stat. § 885.16, Mary has a "present, certain, and vested" interest in the outcome of this action, we agree she is disqualified from testifying about any conversations or transactions she had with Edward, Sr. relating to her husband's payroll checks. We also agree that, absent any evidence to the contrary, the uncashed payroll checks represent unpaid wages rather than loans. The judgment and order are therefore affirmed.

Background

¶ 3. During his life, Edward Gerczak, Sr. was the sole proprietor of a business, Allouez Beer & Liquor, Ltd., that he operated with his wife, Vivian Gerczak. Edward, Jr. began working at Allouez part-time while he was in high school. After graduating from high school, Edward, Jr. married and became a full-time Allouez employee. As the years went by, he assumed greater responsibility for the business and his wife, Mary, eventually became Allouez's bookkeeper.

¶ 4. According to Mary, Allouez generally had cash flow problems at the beginning of each year. At other times, Allouez suffered from cash shortfalls because it was required to pay its beer suppliers within fifteen days and its liquor suppliers within thirty days. Mary testified that it was common practice for either Edward, Jr. or Edward, Sr. to hold their payroll checks when cash flow was a problem.

¶ 5. By 1991, Edward, Sr. had developed serious health problems, including arthritis and a heart condition. In 1998, Vivian entered a nursing home. The resulting medical bills placed increased pressure on the family business. As his father's health worsened, Edward, Jr. effectively took over the day-to-day running of Allouez. On January 20, 2003, Edward, Sr. died.

¶ 6. Evidence suggests that Edward, Sr. intended Edward, Jr. to have the business after his death. A revocable trust established in 2002 gave all stock in Allouez Beer and Liquor, Ltd. to Edward, Jr.; the residue of the estate was to be divided between Edward, Jr. and his sister, Barbara. That same year, Allouez was incorporated. Because no assets were ever transferred into the corporation, however, the business passed into the residual estate.

¶ 7. In August 2003, Edward, Jr. filed a claim against his father's estate for $102,011.16 for loans made to Allouez and unpaid wages. He amended his claim in January 2004 to $160, 977.81 plus interest, and again in March, when he claimed $ 164,056.88 plus interest. Edward, Jr. argued that because the uncashed payroll checks he held represented money loaned to the business, his claim was governed by the six-year statute of limitations for contract actions. Barbara contested his claim.

¶ 8. In August 2004, a hearing on the contested claim was held. Barbara objected to Mary's testimony that the unpaid payroll checks were loans to the business, arguing that Mary was an interested party under Wisconsin's deadman's statute. The court agreed and limited Mary's testimony to evidence of standard business practices. After objections to the testimony of the certified public accountant, Robert Patrickus, the parties were ordered to brief eviden-tiary and statute of limitations issues. In October, the court issued a written decision concluding that while the deadman's statute did not prohibit Patrickus from testifying, any evidence he might give about the significance of the records he prepared would be inadmissible hearsay if it was based on conversations or transactions that Edward, Jr. or Mary reported having with Edward, Sr.

¶ 9. The court's final judgment on the claim indicated it had also concluded that there was insufficient evidence to establish that the uncashed checks represented loans and not unpaid wages. It therefore ruled that the two-year statute of limitations for unpaid wages barred Edward, Jr. from collecting any wages owed to him from before August 2001. Edward, Jr. now appeals.

Discussion

1. Standard of Review

¶ 10. The interpretation of statutes and the application of statutes to uncontested, relevant facts are questions of law this court reviews without deference. See State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). The application of one statute to another is similarly a question of law. See State ex rel. Sielen v. Milwaukee County Circuit Court, 176 Wis. 2d 101, 106, 499 N.W.2d 657 (1993). We attempt to harmonize statutes, if possible, by reading them together in a way that will give each full force and effect. See City of Milwaukee v. Kilgore, 193 Wis. 2d 168, 184, 532 N.W.2d 690 (1995). Conflicts between statutes are disfavored and will be held not to exist if the statutes may be otherwise construed. See Ahrens-Cadillac Oldsmobile, Inc. v. Belongia, 151 Wis. 2d 763, 766, 445 N.W.2d 744 (Ct. App. 1989).

2. The Deadman's Statute and Spousal Competency

¶ 11. This contested claim case presents a problem of first impression: whether Wisconsin's Marital Property Act, Wis. Stat. ch. 766, affects the application of Wis. Stat. § 885.16, the deadman's statute, and specifically whether spouses whose interests were too remote or contingent before the Marital Property Act to prevent them from testifying are now incompetent in some circumstances. Edward, Jr. argues that neither Wisconsin case law nor public policy supports expanding the applicability of the deadman's statute in this way. The estate contends that, under the Marital Property Act, Mary is an interested witness because she will "gain or lose by the direct legal operation and effect of the judgment." Estate of Christopherson, 2002 WI App 180, ¶ 22, 256 Wis. 2d 969, 650 N.W.2d 52. Based on the particular facts of this case, we agree with the estate.

¶ 12. Like many deadman's statutes, Wis. Stat. § 885.16 establishes a broad categorical exception to the general rule of competency. "Every person is competent to be a witness except as provided by ... [§§] 885.16 and 885.17." Wis. Stat. § 906.01. Under Wisconsin's deadman's statute, § 885.16, first codified in 1858,

[n]o party or person in the party's or person's own behalf or interest, and no person from, through or under whom a party derives the party's interest or title, shall be examined as a witness in respect to any transaction or communication by the party or person personally with a deceased or insane person in any civil action or proceeding, in which the opposite party derives his or her title or sustains his or her liability to the cause of action from, through or under such deceased or insane person....

The statute has its roots in the common law principle that an interested party will be powerfully tempted to misrepresent transactions or communications with a person who cannot, because of death or mental incapacity, rebut the party's testimony. See, e.g., Havlicek/Fleisher Enters., Inc. v. Bridgeman, 788 F. Supp. 389, 396-97 (E.D. Wis. 1992). Criticism of the principle of an interested party's incompetence dates back to the nineteenth century. Modern American scholars and jurists have been equally critical of its lingering manifestations, and our nation's courts have moved steadily away from categorical exclusions for incompetence toward individual determinations of credibility.

¶ 13. As early as 1940, the State Bar recommended that Wisconsin's deadman's statute be repealed. Our supreme court has expressed a similar discomfort with the survival of what it has characterized as a vestige of "an archaic view of the law," Estate of Molay, 46 Wis. 2d 450, 458, 175 N.W.2d 254 (1970), and a "plague" on the trial bar, Carson v. City of Beloit, 32 Wis. 2d 282, 288, 145 N.W.2d 112 (1966). Thus, while Wis. Stat. § 885.16 remains in force, its application has been limited in several ways. The statute is, most importantly, strictly interpreted. See Estate of Nale, 61 Wis. 2d 654, 659, 213 N.W.2d 552 (1974). There are also strict rules for the invocation of the deadman's statute. To be valid, an objection under Wis. Stat. § 885.16 must, for example, be addressed not to the admissibility of the evidence, but to the witness's competency to testify about a particular conversation or transaction. See Carson, 32 Wis. 2d at 288.

3. Spousal Competency before the Marital Property Act

¶ 14. In a line of cases decided before January 1, 1986, the date the Marital Property Act went into effect, strict interpretation of the deadman's statute led Wisconsin courts to find that party spouses, and other near relatives, were competent to testify because their interests were too "remote and contingent" to disqualify them. Only an interest that was "present, certain, and vested" rendered a witness incompetent. See Estate of Christen, 72 Wis. 2d 8, 12, 239 N.W.2d 528 (1976). The true test of a disqualifying interest is, as the supreme court noted in a different context, whether the witness will "gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action." In re Williams' Will, 256 Wis. 338, 350, 41 N.W.2d 191 (1950).

¶ 15. As the parties in this case recognize, this line of cases remains precedent and would control the question of Mary's competence unless the Marital Property Act, by altering the nature of a spouse's interest in certain kinds of property, changes the character of the spouse's interest in a legal action.

4. Spousal Competency After the Marital Property Act

¶ 16. Edward, Jr. is correct that no Wisconsin case law directly supports the proposition that the Marital Property Act may make party spouses incompetent to testify under the deadman's statute. Indeed, he points to Havlicek/Fleisher, a 1992 decision referring to the line of cases discussed above, as authority for the argument that the Marital Property Act has not altered the operation of Wxs. Stat. § 885.16. Havlicek/Fleisher, 788 E Supp. at 400. However, Havlicek/Fleisher is a federal district court opinion, focusing on an entirely different application of Wisconsin's deadman's statute. See id. The passages cited by Edward, Jr. are merely dicta and any persuasive authority they might have is undercut by the absence of any indication that the court was remotely concerned with the issue before us. See id. at 397.

¶ 17. In the absence of any Wisconsin case law addressing the interaction of Wis. Stat. ch. 766, the Marital Property Act, and Wis. Stat. § 885.16, the deadman's statute, we begin by considering how the Marital Property Act affects a spouse's interest in wages or loans, the type of property at issue in this case.

¶ 18. Modeled after the Uniform Marital Property Act, the Marital Property Act transformed Wisconsin from a common law property state to a community property state. One immediate effect was to change how property was classified. All property of spouses is now marital property except property that is statutorily exempt or classified otherwise by valid agreement of the spouses. Wis. Stat. § 766.31(1). All property of spouses is also presumed to be marital property; each spouse has a present undivided one-half interest in each item of marital property. Wis. Stat. § 766.31(2) and (3). In addition, "[e]xcept as provided under subs. (7) (a), (7p) and (10), income earned or accrued by a spouse or attributable to property of a spouse during marriage and after the determination date is marital property." Wis. Stat. § 766.31(4).

¶ 19. Under Wis. Stat. § 766.31, one spouse's income is marital property in which both spouses have a present undivided half interest. In any claim for unpaid wages, therefore, a non-wage earning spouse has the same interest in the potential income as the spouse who earned the wages. Even if the claim in this case involves an unpaid loan, the money used to make that loan would presumptively be marital property, used for a marital purpose and, in the absence of evidence demonstrating that it was separate property, Mary would again have the same interest in that property as her husband. Thus, to the extent that Mary and Edward, Jr. would have the same ownership interest in the property that gives rise to this action, and the same right to control and manage that property, her interest in the outcome of the litigation is as "present, certain, and vested" as her husband's.

¶ 20. The supreme court's analysis in Christen provides support for our holding. Whether an interest is remote or contingent does not depend on the witness's status as husband, child, or wife. See Christen, 72 Wis. 2d at 13. Christen recognized that changing intestacy and election provisions may alter the interest a potential witness would have in a spouse's estate and thus could have an effect on that witness's interest in a legal action to which the spouse was party. Id. While Christen rejected the argument that the particular provisions identified in that case had sufficient effect on the ultimate interest to bar the witness from testifying, it did not reject the premise of the argument.

¶ 21. We thus conclude that Mary is not competent to testify about transactions or conversations with Edward, Sr. about the significance of her husband's unpaid payroll checks. We also agree with the circuit court that, without evidence that those checks were intended as loans, the two-year statute of limitations on actions for unpaid wages applies to Edward, Jr.'s claims.

By the Court. — Judgment affirmed.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The couple married in 1976. In the .early days of the marriage, Mary worked as a clerk and stocker at Allouez; by the 1980s, she began doing Allouez's books, preparing sales records, sales tax reports, and spreadsheets for Robert Patrickus, who used that information to file tax returns for the business. After 1995, Mary worked as a full-time special needs aide at a local middle school, but apparently continued to do the Allouez bookkeeping.

       The court allowed Mary to testify about her duties and responsibilities as Allouez's bookkeeper and about some general patterns of business practice.

       Edward, Jr.'s brief to this court suggests he objects to the trial court's decision that the deadman's statute bars Patrickus, from testifying about the alleged loans. What the trial court actually concluded was: "Patrickus's testimony regarding any loans is not precluded by the DMS [the deadman's statute]. However, such evidence is inadmissible hearsay if it is based on information obtained from Ed., Jr. or Mary." In any event, Edward, Jr. neither develops an argument about the deadman's statute nor responds to the estate's argument that it would be inadmissible hearsay for Patrickus to testify about information he received from Edward, Jr. or Mary. We therefore do not address either argument. See State v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App. 1994) (We ordinarily decline to address arguments raised on appeal that are inadequately briefed.); Charolais Breeding Ranches v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (An argument not refuted is deemed admitted.).

       Patrickus indicated that he had never discussed loans or holding payroll checks with Edward, Sr.

       Eighteen states retain some form of the deadman's statute; but only eleven, in addition to Wisconsin, have statutes absolutely barring testimony from an interested witness as to transactions with the deceased. See Shawn K. Stevens, The Wisconsin Deadman's Statute: The Last Surviving Vestige of an Abandoned Common Law Rule, 82 MaRQ. L. Rev. 281, 283 n.5, 284 n.8, 294 (1998).

       The latter exception merely extends Wis. Stat. § 885.16 to transactions the party has had with an agent of the adverse party when that agent is deceased.

        See, e.g., Stevens, supra, at 285-86, 294 n.68, 295-301; see also Joseph A. Colquitt & Charles W Gamble, From Incompetency to Weight and Credibility: The Next Step in an Historic Trend, 47 Ala. L. Rev. 145, 147-48 (1995).

       Objections to the statute have continued. In 1973, for example, the Judicial Council's Rules of Evidence Committee again recommended repeal. See Casper v. McDowell, 58 Wis. 2d 82, 86 n.4, 205 N.W.2d 753 (1973).

       Failure to object in the proper form constitutes waiver. See Carson v. City of Beloit, 32 Wis. 2d 282, 288, 145 N.W.2d 112 (1966).

        See Carlsen v. Hardware Mut. Cas. Co., 255 Wis. 407, 410, 39 N.W.2d 442 (1949) (wife competent to testify about conversations with the deceased in a personal injury suit brought by her husband); Estate of Christen, 72 Wis. 2d 8, 12, 239 N.W.2d 528 (1976) (husband competent to testify about conversations with decedent in whose estate his wife had an interest); see also Estate of Nale, 61 Wis. 2d 654, 659-60, 213 N.W.2d 552 (1974) (daughter competent to testify in support of her mother's claim against an estate); Estate of Komarr, 68 Wis. 2d 473, 480, 228 N.W.2d 681 (1975) (mother competent to testify in proceeding in which her children's claim to be among decedent's heirs was an issue).

       It is perhaps not surprising, given that there are only nine community property states in the country and eighteen states with deadman's statutes, that there is no foreign precedent that directly addresses this question.

       See Howard S. Erlanger & June M. Weisberger, From Common Law Property to Community Property: Wisconsin's Marital Property Act Four Years Later.; 1990 Wis. L. Rev. 769, 770, 773-75.

       Third party gifts to one spouse and property inherited by one spouse remain, for example, the property of the individual spouse for the purpose of classification. See Wis. Stat. § 766.31(7)(a).


author: SNYDER, J. Adam L.

text:
    Susan M. Vlies, Petitioner-Respondent, v. Adam L. Brookman, Respondent-Appellant.
    Court of Appeals

      No. 2004AP315.

      Submitted on briefs May 13, 2005.

      Decided June 15, 2005.

    2005 WI App 158
    (Also reported in 701 N.W.2d 642.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Carlton D. Stansbury and Carrie L. Watkins of Burbach & Stansbury, S.C., Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Gregory J. Banchy and Roberta Steiner oí Hailing & Cayo, S.C., Milwaukee.
    A nonparty brief was filed by Linda S. Balisle, Madison, for American Academy of Matrimonial Lawyers-Wisconsin Chapter.
    Before Brown, Nettesheim and Snyder, JJ.
   SNYDER, J. Adam L.

¶ 1. Brookman appeals from a judgment of divorce awarding family support to Susan M. Vlies. Brookman contends that the circuit court's decision to award family support in lieu of child support and maintenance was improper. He argues that the circuit court did not apply the relevant statutory factors to the facts of the case and therefore erroneously exercised its discretion. We agree and reverse the family support order provision of the judgment, remanding it with directions. Brookman also argues that the court erred when it required him to maintain life insurance for the children's benefit because it had no authority to do so. We disagree; however, we remand the issue of life insurance coverage for consideration in the context of the court's child support analysis. Finally, Brookman contends that the circuit court erred when it ordered him to contribute to Vlies's attorney's fees. We agree and remand the award of attorney's fees for further proceedings.

FACTS

¶ 2. Vlies and Brookman were married on May 15, 1988, in New Jersey. They have three children. As of the date of the divorce, the children were minors: thirteen, twelve, and eight years old. Vlies filed for divorce on November 29, 2001. The circuit court appointed a guardian ad litem for the children in October 2002, and the parties stipulated to mediation in April 2003. Mediation was unsuccessful and a six-day trial ensued.

¶ 3. Vlies worked full time outside the home until the birth of the parties' second child in 1991. She worked part time until 1995, when the parties moved to Wisconsin. Vlies then became a stay-at-home mother and managed the household. At the time of the divorce, she had no outside income but had obtained her teaching certification, and the parties stipulated an imputed annual income to her of $28,000. During the entire course of the marriage, Brookman worked full time as a lawyer in private practice. His income at the time of the divorce included an annual base salary of $100,000 plus two annual bonus payments determined by his employer's compensation committee and paid in December of each year.

¶ 4. Upon dissolution of the marriage, the circuit court ordered joint legal custody of the children and gave primary placement to Vlies. Brookman has placement approximately 36% of the time, with additional placement for holidays, vacations and extended school breaks. The parties estimate that over the course of a year, the children are in Brookman's care approximately 40% of the time. The court held open the matters of child support and maintenance to Vlies, ordering family support as an alternative. The court held that Brook-man must pay family support of $7500 per month for ten years.

¶ 5. The judgment of divorce addressed medical and health care expenses, as well as the assets and debts of the parties. The circuit court ordered Brook-man to maintain a total of $750,000 in life insurance coverage, with the three children or a trust for their benefit named as irrevocable beneficiaries. The court incorporated several other holdings in the judgment of divorce, none of which are relevant to this appeal.

DISCUSSION

Family Support

¶ 6. Brookman appeals from the circuit court's family support award to Vlies of $7500 per month for ten years. The court adopted Vlies's proposed family support award, but extended it two years beyond the eight she had proposed. Brookman argues that the court failed to provide a sufficient rationale for its family support award.

¶ 7. At our invitation, the Wisconsin Chapter of the American Academy of Matrimonial Lawyers filed an amicus curiae brief. Before turning to the merits of Brookman's argument regarding the family support award, we consider the impetus for and practical implications of family support as a substitute for child support and maintenance. The amicus brief sets forth a comprehensive history of family support in Wisconsin, which provides a fitting backdrop for our analysis.

¶ 8. The 1977 Divorce Reform Act provided family courts with the option to award family support as an alternative to child support and maintenance. 1977 Wis. Laws, ch. 105, § 43. The family support statute states in relevant part: "The court may make a financial order designated 'family support' as a substitute for child support orders under s. 767.25 and maintenance payment orders under s. 767.26." Wis. Stat. § 767.261 (2003-04). The legislature determined that family support should be "based upon the same criteria applicable to those separate orders [for child support and maintenance]." Legislative Council Note, 1977, Wis. Stat. Ann. § 767.261 (West 2001). The family support alternative, therefore, encompasses the support objectives of its component parts, child support and maintenance, in a single obligation.

¶ 9. The legislature originally created the family support option to allow parties to take advantage of "significant federal income tax advantages" under Commissioner of Internal Revenue v. Lester, 366 U.S. 299 (1961). Legislative Council Note, 1977, Wis. Stat. Ann. § 767.261 (West 2001). Lester was superseded by I.R.C. § 71, as amended by the Deficit Reduction Act of 1984, Pub. L. No. 98-369, § 422(a), 98 Stat. 795 (1984), which provides that child support is not taxable to the payee or deductible to the payer if it is "fixed" (set as a specific amount) by the support order. See I.R.C. § 71(c). The federal tax code provides in relevant part:

(a) General rule. — Gross income includes amounts received as alimony or separate maintenance payments.
(c) Payments to support children.—
(1) In general. — Subsection (a) shall not apply to that part of any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payor spouse.
(2) Treatment of certain reductions related to contingencies involving child. — For purposes of paragraph (1), if any amount specified in the instrument will be reduced—
(A) on the happening of a contingency specified in the instrument relating to a child (such as attaining a specified age, marrying, dying, leaving school, or a similar contingency), or
(B) at a time which can clearly be associated with a contingency of a kind specified in subparagraph (A),
an amount equal to the amount of such reduction will be treated as an amount fixed as payable for the support of children of the payor spouse.

I.R.C. § 71(a), (c).

¶ 10. A "fixed" award of family support operates for tax purposes like maintenance. See I.R.C. § 215 (maintenance is deductible to the payer, and taxable to the recipient). Both the child support and the maintenance components of family support are taxable to the payee. In this way, family support shifts the taxable income from the payer to the payee. The amicus points out:

When most payer spouses earned virtually all of the family income while most recipient spouses had minimal income, family support maximized the amount of income available to a family by reallocating tax liability. But as the rate of taxation has declined and as the gap between most parties' tax brackets has shrunk, the benefits of family support have also dwindled for the majority of families.

¶ 11. Potential tax penalties associated with family support have increased since the 1977 Divorce Reform Act. Under I.R.C. § 71(c)(2), a reduction in family support that is triggered by a child-related contingency can presumptively recharacterize that portion of the payment and convert the amount to nondeductible child support. The payer would then owe taxes on that portion of the support deemed to be child support, retroactive to the date of the initial family support order. See I.R.C. § 71(c)(2)(B). The amicus asserts, "The enormity of the potential past due taxes, interest, and penalties together with the complexity of the child-related contingencies (particularly in families with two or more children) demands great caution in using family support."

¶ 12. Here, Brookman raises two issues regarding the circuit court's family support award. First, he argues that the court mistakenly concluded that family support offered clear tax advantages and therefore erroneously opted for family support instead of child support and maintenance. Next, he argues that the circuit court failed to demonstrate a reasoned process for setting the amount and term of the family support. Vlies responds that the court's decisions regarding family support, including its amount and duration, are supported by the record and based on evidence adduced at trial.

¶ 13. We will overturn a circuit court's family support award only if there was an erroneous exercise of discretion. Jasper v. Jasper, 107 Wis. 2d 59, 63, 318 N.W.2d 792 (1982). A discretionary decision, to be sustained, must be based upon the facts of record and reliance on the appropriate standard of law. Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). "[M]ost importantly, a discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination." Id.

¶ 14. Although Wis. Stat. § 767.261 does not enumerate specific factors for calculating family support, our legislature did not envision an unfettered exercise of discretion by the circuit court. The legislature determined that such an award should be based on the same criteria used to fashion child support and maintenance orders. Legislative Council Note, 1977, Wis. Stat. Ann. § 767.261 (West 2001). Accordingly, the circuit court must separately calculate child support and maintenance as a condition precedent to calculating family support.

¶ 15. A circuit court should use the factors presented in Wis. Stat. § 767.25 (child support) and the support percentage guidelines provided in Wis. Admin. Code § DWD ch. 40 (Dec. 2003), together with Wis. Stat. § 767.26 (maintenance), when ordering family support. More specifically, a court must calculate child support according to the percentage guidelines or provide a rationale for deviating from the guidelines. See § 767.25(lj), (In). Next, the court must determine the amount of maintenance, keeping in mind two objectives: (1) to support the recipient spouse in accordance with the needs and earning capacities of the parties (the support objective), and (2) to ensure a fair and equitable financial arrangement between the parties (the fairness objective). LaRocque v. LaRocque, 139 Wis. 2d 23, 32-33, 406 N.W.2d 736 (1987). The circuit court must then express these two components as a family support obligation in order to provide the parties with the associated tax benefits.

¶ 16. If the circuit court applies the percentage guidelines when setting child support, it must set family support at an amount that results in a net payment, after state and federal taxes are paid, of no less than the child support as calculated under the guidelines. Wis. Admin. Code § DWD 40.03(7). At a minimum, the court must increase the amount of family support to ensure that the recipient spouse receives as much total income as would have been available from a nontaxable award of child support. Of course, courts retain the discretion to deviate from the percentage guidelines, provided they demonstrate a fact-based rationale for doing so. See Wis. Stat. § 767.25(lm), (In).

¶ 17. We turn to the circuit court's rationale for awarding family support of $7500 per month for ten years. The court stated:

[I]n this case, I've considered the testimony of [Scott Franklin, C.EA.]. I believe the advantages to the parties of utilizing family support in place of child support and maintenance are clear. I've considered the factors in [Wis. Stat. §§] 767.25 and 767.26 governing child support and maintenance.
In this case the respondent earns an excellent living. There is no doubt about it. The resources of the parties mainly exist in the family home. And that there is no other individual that the party is obligated to support. The marriage was 13 years at the time of separation, 15 years currently.
Additionally, the three children have really enjoyed a standard of living that can only be described as outstanding. They really haven't wanted for anything up until the time of the divorce. And even after the divorce was initiated, they still were able to do the activities and to live in the community that they were residing in....
Ms. Vlies hasn't worked outside of the home since shortly after [their second child] was born, and Mr. Brookman has a far greater earning capacity than Ms. Vlies, and in all likelihood I think will always have a greater earning capacity....
I doubt that it's reasonable that she can become self-supporting at a standard of living comparable to that enjoyed by the parties, and I think that family support plays into this because of the tax consequences.

¶ 18. The circuit court referenced the appropriate statutes, discussed the earning capacity of each party, considered the length of the marriage and role each party played in the marriage, and opined on Vlies's potential to become self-supporting. These are all relevant factors for consideration; however, the court did not explain how these factors led to a family support award of $7500 per month for ten years.

¶ 19. Brookman asserts that even if a court makes detailed findings as to all of the factors for family support, the court erroneously exercises its discretion if it neglects to provide a rational explanation of how its findings lead to the support award. See King v. King, 224 Wis. 2d 235, 252, 590 N.W.2d 480 (1999). We agree. In Corliss v. Corliss, 107 Wis. 2d 338, 348, 320 N.W.2d 219 (Ct. App. 1982), we took up the issue of family support and the balancing of two competing interests: the recipient's need for support and the payer's ability to pay. There, we determined that the record contained evidence regarding the needs of the recipient spouse and the children as well as the payer spouse's ability to pay; however, there was no connection between the evidence and the amount of family support ordered by the circuit court. Id. at 349. In other words, "the court made no findings as to need and ability to pay as a factual basis for the exercise of its discretion." Id. (emphasis added).

¶ 20. Vlies counters that we are obligated to uphold the circuit court's determination if our examination of the record facts supports the court's exercise of discretion. See Franke v. Franke, 2004 WI 8, ¶ 55, 268 Wis. 2d 360, 674 N.W.2d 832. Vlies refers to the "voluminous record" on appeal to support her contention that the facts support the circuit court's decision. She argues that we would be placing an "unsustainable burden" on the circuit court were we to require that court to "set forth in some sort of all encompassing, comprehensive laundry list each and every piece of evidence it considered in reaching each and every one of its legal conclusions." This exaggerates and mischarac-terizes the issue. Our legislature placed the onus on circuit courts to consider the statutory factors underlying child support and maintenance. See Wis. Stat. §§ 767.25, 767.26. Our legislature also determined that child support awards should be crafted according to administrative guidelines created by the Department of Workforce Development. See § 767.25(lj), (lm).

¶ 21. Although the record is indeed large, and substantial financial data are included, we are left to speculate about how the facts influenced the circuit court's decision. For example, Vlies submitted a financial disclosure form indicating her annual net expenses to be approximately $92,292 or $7691 per month. During the term of the marriage, however, the entire family of five lived on Brookman's annual base salary of $100,000 and used the bonuses for larger, nonrecurring expenses. The court ordered Brookman to pay annual family support of $90,000, yet Brookman's annual base salary, before taxes, is $100,000. Brookman has historically received bonus compensation each December as determined by his employer's compensation committee. Nonetheless, our review of the record indicates that the circuit court's award of fixed, monthly family support of $7500 is in excess of Brookman's monthly net income of $5063. The record facts, in the absence of a complete analysis by the circuit court, leave us no choice but to wonder about the court's rationale.

¶ 22. There is no indication that the circuit court calculated child support under the Wis. Admin. Code § DWD 40.03(1) percentage guidelines or that it alternatively determined a rational basis for deviating from the guidelines. The record does not demonstrate whether the family support award complies with § DWD 40.03(7), which requires net family support to meet or exceed the amount of child support that would have been available under the percentage guidelines. Consequently, because the court must determine child support payments before calculating a party's maintenance obligation, the court's maintenance considerations in the absence of a full child support computation were premature. See § DWD 40.03(6).

¶ 23. The legislature did not intend for the circuit court to bypass statutory considerations associated with child support and maintenance when it enacted the family support statute; rather, it intended family support "as a substitute for maintenance payments and child support orders, and based upon the same criteria applicable to those separate orders." Legislative Council Note, 1977, Wis. Stat. Ann. § 767.261 (West 2001) (emphasis added). We note that the court did reference Wis. Stat. §§ 767.25 and 767.26 in its decision. But a complete analysis should address the connection between the statutory factors and the ultimate support award. Courts are not permitted to acknowledge the statutory factors in form only to disregard them in substance and practical effect. King, 224 Wis. 2d at 252.

¶ 24. Because we cannot discern from the record how the circuit court arrived at the amount and duration of family support or what tax implications influenced the court, we set aside the family support award and remand the matter to the circuit court for an analysis in conformity with the methodology set forth above.

Life Insurance

¶ 25. Brookman next argues that the circuit court had no authority to require him to maintain life insurance for the children's benefit. Here the court directed that Brookman maintain $750,000 of coverage, with the three children or a trust for their benefit as irrevocable beneficiaries. Brookman maintains that the circuit court has no authority other than that expressly granted by statute. He cites to Groh v. Groh, 110 Wis. 2d 117, 122, 327 N.W.2d 655 (1983), for support of his contention that without direct statutory authority, the circuit court had no power to require him to maintain life insurance for the benefit of his children. In Groh, our supreme court stated that "where the legislature has set forth a plan or scheme as to the manner and limitation of the court's exercise of its jurisdiction, that expression of the legislative will must be carried out and the power limitations adhered to." Id. at 123.

¶ 26. Our supreme court has observed, however, that life insurance coverage may be part of the court's child support analysis where the record so demonstrates. In Vaccaro v. Vaccaro, 67 Wis. 2d 477, 480, 227 N.W.2d 62 (1975), the supreme court considered whether life insurance policies, and the associated cash value, were part of the division of property or part of child support. The supreme court upheld the lower court's characterization of life insurance as part of the child support award. Id. at 484. There, the husband had carried life insurance pursuant to a stipulation incorporated into a judgment of divorce that required him to maintain $48,000 of life insurance coverage and name his three children as irrevocable beneficiaries. Id. at 479. The judgment was later modified by stipulation to require $40,000 of life insurance coverage until the youngest child reached the age of twenty-one. Id. The supreme court determined that the terms of the judgment allowing modification of the policies and the designation of the children as beneficiaries clearly demonstrated the life insurance was for support of the children in the event of their father's death. Id. at 483.

¶ 27. More recently, we addressed the issue of whether a clause requiring one party to maintain life insurance with the children as beneficiaries survived the termination of the payer parent's support obligation. Barnes v. Hall, 170 Wis. 2d 1, 5, 486 N.W.2d 575 (Ct. App. 1992). There the divorce judgment required the husband to maintain a $10,000 life insurance policy for the benefit of his two minor children. Id. He did so, but surrendered the policy shortly before his death. Id. at 6. The two children, now adults, each claimed $5000 against the estate of their deceased father. Id. We held that "because the law does not allow estate planning in a divorce for purposes of creating a property benefit for adult children, the clause at issue, as a matter of law, must be treated as one relating to child support." Id. at 13.

¶ 28. We acknowledge Brookman's observation that the above cases addressed stipulated terms that were then incorporated into the divorce judgment. In contrast, Brookman and Vlies did not stipulate to the matter. We note, however, that each party submitted a proposed judgment and both included provisions whereby they would be required to carry life insurance for the benefit of the children. From this, we conclude that the parties agreed to the concept of life insurance for the benefit of their children, if not to the specific terms.

¶ 29. Brookman also submits that the circuit court's directive regarding life insurance cannot be considered part of the child support analysis because the benefit extends into the children's adulthood. We agree that the terms of the provision are problematic, but it is an oversight easily remedied on remand. We have no reservation in concluding that the circuit court intended to treat the life insurance coverage as an issue related to child support. The court specified that Brookman name the children or a trust for their benefit as irrevocable beneficiaries. Further, it expressly stated that the purpose of the life insurance was to be a "hedge against family support or child support." Accordingly, we are compelled to remand the issue of life insurance to the circuit court for further consideration in the context of its child support analysis. As with any child support ruling, the circuit court should state the reasons for its ruling after considering the relevant factors bearing on the question, including the needs of the child and the payer's ability to pay.

Attorney's Fees

¶ 30. Finally, Brookman contests the circuit court's decision to award attorney's fees to Vlies. He contends the court failed to exercise its discretion when it simply adopted verbatim Vlies's proposal regarding a contribution to her attorney's fees. We agree.

¶ 31. The circuit court may, in its discretion, award attorney fees to one party based on the financial resources available to each of the parties. Wis. Stat. § 767.262(1). This is appropriate if the paying party has caused additional fees by overtrial or because the paying party refused to provide information which would have allowed swifter resolution of the matter. See Randall v. Randall, 2000 WI App 98, ¶ 22, 235 Wis. 2d 1, 612 N.W.2d 737.

¶ 32. Here, the circuit court ordered Brookman to pay $2000 toward Vlies's attorney's fees. In doing so, the court simply stated that it was adopting verbatim paragraph fourteen of Vlies's proposed judgment. Paragraph fourteen of Vlies's proposed judgment stated: "Petitioner is awarded the sum of $2,000 as a contribution to her attorney's fees, to be paid on or before September 30, 2003. Each of the parties shall be responsible for the payment of his/her own attorney's fees."

¶ 33. Brookman hypothesizes that the circuit court may have awarded attorney's fees to Vlies for the time her attorney spent drafting a postmediation settlement agreement that was ultimately rejected. Vlies hypothesizes that the award of attorney's fees is based on the court's finding that there is a "significant disparity between the parties with regard to their earning capacity." The circuit court, however, provided no guidance in this regard. The function of an appellate court is not to exercise discretion in the first place, but to review the circuit court's exercise of discretion. See Franke, 268 Wis. 2d 360, ¶ 55. Because we are left to speculate on the court's rationale for requiring Brook-man to contribute $2000 toward Vlies's attorney's fees, we reverse and remand the issue to the circuit court.

CONCLUSION

¶ 34. We reverse those portions of the judgment of divorce pertaining to family support, life insurance, and attorney's fees. We conclude that all three issues must be remanded in order for the circuit court to set forth its rationale for each, reconsidering its rulings if appropriate. In particular, we draw the circuit court's attention to its family support award and the methodology for calculating family support set forth above. We agree with the amicus that "[t]he enormity of the potential past due taxes, interest, and penalties together with the complexity of the child-related contingencies [under I.R.C. § 71] (particularly in families with two or more children) demands great caution in using family support." Further, we remand the issue of life insurance coverage for consideration in the context of the court's child support analysis. Finally, we reverse the award of attorney's fees in favor of Vlies and remand to the court for further consideration in accordance with this opinion.

By the Court. — Judgment reversed and cause remanded with directions.

       The amicus curiae brief was responsive to the issues set forth in our order of February 18, 2005. We appreciate the contribution of the Wisconsin Chapter of the American Academy of Matrimonial Lawyers and its president, Attorney Linda S. Balisle.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       All subsequent references to the Internal Revenue Code are to the 2005 version.

       Under Wis. Stat. § 767.25(lj), the court "shall determine child support payments by using the percentage standard established by the [DWD] ...." All references to the Wisconsin Administrative Code are to the December 2003 version.

       The amicus posits that life insurance may be considered as a variable cost under Wis. Admin. Code § DWD 40.02(29). The parties have neither raised nor argued this and therefore we make no ruling as to the merits of this approach. The parties are free to argue the issue on remand if they choose to do so.


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Edward W. Fisher, Defendant-Appellant.

    Court of Appeals

      Nos. 2004AP1289-CR, 2004AP2488-CR.

      Submitted on briefs April 28, 2005.

    Decided June 15, 2005.

    2005 WI App 175
    (Also reported in 702 N.W.2d 56.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Eileen Miller Carter of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Warren D. Weinstein, assistant attorney general.
    Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 8-25-05.

   BROWN, J.

¶ 1. Edward W. Fisher appeals from a judgment of conviction pursuant to Wis. Stat. § 961.41(l)(cm)l. (1999-2000) for delivering five or fewer grams of cocaine, a controlled substance, and an order denying his motion for postconviction relief. He essentially challenges the length of his sentence and the constitutional validity of certain conditions of extended supervision. We disagree with Fisher's various contentions. The circuit court properly considered the primary sentencing factors in arriving at the length of his sentence. Moreover, the conditions of supervision are unambiguous and reasonably related to his rehabilitative needs. We also reject the State's argument that Wis. Stat. § 302.113(7m)(e)l. requires Fisher to wait until the year before his release to supervision before challenging the condition of supervision. That statute applies where an individual seeks modification of an otherwise valid condition, not where he or she challenges its validity.

¶ 2. The criminal complaint states that on June 28, 2002, Fisher encountered an undercover detective working for the Kenosha County Controlled Substance Unit. Fisher climbed into the backseat of the detective's car, and upon receiving the detective's assurance that he was not the police, Fisher directed the detective to where Fisher had parked his van. Upon their arrival, Fisher instructed the detective to follow him in his van to an area called Model Market near the 2300 block of 54th Street. Fisher exited the van at that location, walked back to the detective's vehicle, and obtained from the detective sixty dollars to buy three bags of "rock," meaning crack cocaine. The detective promised to give Fisher twenty dollars when he returned with the drugs. Fisher surrendered his keys to the detective to assure him of his intent to return, walked back to the van, where he retrieved two children, and then continued walking. Fisher returned a short time later with three bags of crack cocaine in his mouth. The detective gave him a prerecorded twenty-dollar bill, which police found on his person when they arrested him. They also tested the three bags of contraband, which weighed .8 grams and tested positive for cocaine base.

¶ 3. Fisher has a somewhat different version of what happened. He claims he ordered dinner at a restaurant, realized he was short of the bill by eighteen cents, and left for his girlfriend's house so he could obtain the eighteen cents. Fisher alleges he saw an acquaintance in the parking lot who summoned Fisher to talk with him and two people sitting in a car near him. All three supposedly assured Fisher that the occupants of the car were not police and asked Fisher to get them some cocaine. He claims he initially maintained that he was not a dealer but agreed to buy the drugs when they offered him twenty dollars. Fisher admits he directed the driver to follow his van to Model Market, where Fisher thought he could find some cocaine, and that when they reached that area, Fisher stopped, surrendered his keys, and obtained sixty dollars from the driver for the three bags of cocaine. He states he left, returned, and got into the car, where he handed the driver three bags. He learned the driver and his passenger were undercover detectives when the driver told him he would look good in stripes and police squads surrounded the vehicle.

¶ 4. The State charged Fisher, and the court set bond. Fisher agreed to waive his preliminary hearing in exchange for dismissal of two penalty enhancers and subsequently pleaded no contest to the remaining charge, delivery of the controlled substance cocaine, in the amount of five grams or fewer.

¶ 5. On October 15, the circuit court imposed a twelve-year sentence with seven years of initial confinement and five years of extended supervision, to be served consecutively to any other sentence. The court made the following observations while explaining its rationale for the sentence imposed:

The Court has read the pre-sentence investigation report, and obviously what pops out boldly ... is that prior record beginning in 1980. The adult record goes on from there for a couple of pages, page-and-a-half. The defendant began his first prison term at age 21. He's now 43, and he's still in and out of prison. This will be his fifth period of incarceration.
Mr. Fisher, you are quickly becoming an institutionalized man. You can't stand prosperity. When you are out, you're breaking the law, that with your background you should know there's no honor among thieves.... You thought you were dealing with a friend, and you weren't; but the distribution of drugs is a very serious matter. While your attorney indicated it's just a small amount and it will cost hundreds of thousands of dollars to keep you [in confinement], when those drugs get distributed, it costs a lot of money to the community to take care of the people that have become addicted to deal with the same people because they commit crimes in order to get more money to buy more drugs; so it's not as simple as it may look.
The Court believes that based upon your prior record, the nature of this crime, that a prison [sentence] is in order....

¶ 6. Fisher's extended supervision contained alcohol-related provisions. At the sentencing hearing, the court stated Fisher was not to consume any alcoholic beverages or to "go into any taverns or liquor stores or have any containers for alcoholic beverages in your residence." The judgment of conviction and the written "CONDITIONS OF EXTENDED SUPERVISION" form restates the conditions as follows. First, they admonish Fisher, "Do not possess or consume alcoholic beverages and do not have alcoholic beverages within the residence." Second, they command, "Do not be in taverns or on any premises licensed for the sale of intoxicating beverages, except restaurants and grocery stores."

¶ 7. Fisher sought postconviction relief. The circuit court denied his motion on September 14, 2004. Fisher appeals. Specifically, he argues that the circuit court erroneously exercised its discretion when it did not consider mitigating factors supporting a lighter sentence and disregarded Fisher's treatment needs. He also claims that the conditions of supervision, which forbid him to be in taverns or liquor stores, to consume alcohol, or to have containers for alcohol in his residence, violate his constitutional due process rights in that they are vague, overbroad, and lack any connection to his offense.

¶ 8. We first turn to the conditions of supervision. The State contends, as a threshold issue, that we need not reach the merits regarding the conditions of supervision because Fisher prematurely brought his motion to modify those conditions. In support, the State cites Wis. Stat. § 302.113(7m)(e)l., which reads in pertinent part, "An inmate may not petition the court to modify the conditions of extended supervision earlier than one year before the date of the inmate's scheduled date of release to extended supervision . . .." As additional support, it relies upon Wis. Stat. § 809.30(l)(c), which expressly defines "postconviction relief' to exclude appeals, motions, or petitions pursuant to § 302.113(7m).

¶ 9. Whether or not these statutory provisions preclude Fisher from challenging his conditions of supervision requires us to determine whether Fisher seeks to modify the conditions within the meaning of Wis. Stat. § 302.113(7m)(e)l. This task requires us to construe and apply that statute, which raises questions of law that we review independently. See Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996) (statutory interpretation an issue of law); Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶ 17, 253 Wis. 2d 323, 646 N.W.2d 314 (application of legal standard to a set of facts a question of law). We give the words in a statute their common and ordinary meanings. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. Where the meaning of the statute is plain, we begin and end with the statutory language. Id. Where the statute is open to multiple reasonable interpretations, however, we may look to extrinsic evidence of legislative intent — such as the statute's scope, context, history, and purpose — to resolve the ambiguity. See id., ¶¶ 46-48.

¶ 10. We disagree with the State's application of Wis. Stat. § 302.113(7m)(e)l. The Wisconsin Statutes do not provide a relevant statutory definition of "modify," so we consult a dictionary to ascertain the plain meaning. Mared Indus., Inc. v. Mansfield, 2005 WI 5, ¶ 32, 277 Wis. 2d 350, 690 N.W.2d 835 ("If a word is not defined in the statute, our next recourse has normally been to use a recognized dictionary to determine the common and ordinary meaning of the word." (Citation omitted.)). Webster's Third New International Dictionary 1452 (unabridged 1993) provides several similar definitions of "modify," all of which contemplate a change in the form of some existing thing. Among these, it lists the following: (1) "to make more temperate and less extreme"; (2) "to make minor changes in the form or structure of. . . alter without transforming"; and (3) "to make a basic or important change.. . ." Webster's Third New International Dictionary 1452 (unabridged 1993). We conclude that § 302.113(7m)(e)l. unambiguously applies only where an inmate seeks to make changes to conditions of supervision. Fisher does not seek merely to make changes to two contested conditions of his supervision; he wants to abolish them entirely.

¶ 11. Even if we discerned some ambiguity in the statutory language, the legislative history of Wis. Stat. § 302.113(7m)(e)l. reveals that the drafters did not intend the statute to reach appeals seeking to invalidate a condition on constitutional grounds. On June 15, 1998, the legislature enacted 1997 Wis. Act 283, which created the existing § 302.113. This act also created a criminal penalties study committee, directing the committee to submit a report in 1999 including any recommendations and proposed legislation. See 1997 Wis. Act 283, § 454(l)(f). The committee submitted its final report on August 31, 1999. The committee recommended the following new legislation:

The Committee recommends that 1997 Wis. Act 283 be revised such that the judge have the authority to modify the conditions of [extended supervision]. At the time of sentencing, the judge may not be aware of all possible supervision options available at the end of a long period of confinement. The Committee believes that a supervisee should be able to petition for modification of ES conditions, but not before 1 year before the offender's confinement portion of his sentence is to end....

Wisconsin Criminal Penalties Study Committee, Final Report, August 31, 1999, at 131. In response to this recommendation, the legislature enacted § 302.113(7m). See 2001 Wis. Act 109, § 395.

¶ 12. We must read the committee's recommendation in context with the purpose of extended supervision. That purpose involves the dual goals of "advancing the public safety and offender rehabilitation." Wisconsin Criminal Penalties Study Committee, Final Report, August 31, 1999, at 19. In pursuing these objectives, each offender must participate in some combination of employment, education, treatment, and community services. Id. at 122. These services might include the use of alcohol, drug abuse, or job training programs, halfway houses, confinement beds, day reporting centers, employment, sex offender programming, and mental health care. Id. at 122, 125.

¶ 13. Obviously, the report's reference to "all possible supervision options" meant rehabilitation options of this sort. The committee was aware of the fact that new rehabilitative opportunities beneficial to the offender might become available at various points after sentencing and thought it best to wait until just one year prior to release to assess whether newer options met sentencing objectives better than the offender's original conditions of supervision. The court might, for example, modify a job-training condition in the original judgment to substitute a new program that offered employment opportunities in addition to job training. In such a case the employment-related conditions are simply being changed to include different programs. Nobody questions the legality of the original conditions; the issue is simply whether an alteration in the condition might be better.

¶ 14. The situation before us differs markedly. The legislative rationale of waiting until the court can prudently and timely weigh additional options newly available to the offender does not apply to constitutionally invalid conditions. Again, Fisher does not ask us to alter the conditions of his supervision by substituting new terms. He wants us to void them. If a condition of supervision violates the state or federal constitution, striking that condition is not a better option but a mandate. To impose a waiting requirement merely delays the inevitable.

¶ 15. We now address Fisher's constitutional challenges to the conditions of supervision on their merits. Fisher quotes the circuit court's oral decision, which forbids him to "go into any taverns or liquor stores or have any containers for alcoholic beverages in your residence." He claims that this condition is unconstitutionally vague for two reasons. First, he claims that "taverns or liquor stores" can be read broadly enough to prohibit him from patronizing grocery stores and restaurants. Second, he asserts "containers for alcoholic beverages" is vague because it theoretically forbids him from possessing empty containers.

¶ 16. Fisher's contentions grossly misrepresent the record. Assuming the court's oral ruling contained some ambiguity, the written judgment of conviction and the conditions of extended supervision are crystal clear with respect to what conduct the conditions cover. See Jackson v. Gray, 212 Wis. 2d 436, 443, 569 N.W.2d 467 (Ct. App. 1997) (where oral pronouncement ambiguous, we may look to written judgment to ascertain circuit court's intent). Defense counsel conveniently fails to acknowledge either document. Both expressly and unambiguously exempt restaurants and grocery stores from the category of prohibited establishments. We deem Fisher's second argument equally lacking in merit. The conditions read, "Do not possess or consume alcoholic beverages and do not have alcoholic beverages within the residence." Empty containers obviously do not qualify as alcoholic beverages — although possessing such containers might strongly suggest a violation of the proscription against consuming alcohol.

¶ 17. Fisher next contends the conditions of supervision were overly broad and without a proper nexus to his offense, in violation of his constitutional rights to free association and privacy. Fisher concedes that to the extent these rights are implicated, we need not apply strict scrutiny. See State v. Oakley, 2001 WI 103, ¶¶ 16-21, 245 Wis. 2d 447, 629 N.W.2d 200 (standard of review for conditions of probation), modified on other grounds, 2001 WI 123, 248 Wis. 2d 654, 635 N.W.2d 760; State v. Koenig, 2003 WI App 12, ¶ 7 & n.3, 259 Wis. 2d 833, 656 N.W.2d 499 (Ct. App. 2002) (applying authority applicable to propriety of probation conditions to conditions of extended supervision). We need only determine that "they are not overly broad and are reasonably related to the person's rehabilitation." Oakley, 245 Wis. 2d 447, ¶ 19 (citation omitted). A condition reasonably relates to the goal of rehabilitation when it assists the offender in conforming his or her behavior to the law. Id., ¶ 21.

¶ 18. We reject Fisher's challenge. Fisher asserts the conditions are "overly broad because [they] afford[] no real or practical notice ... as to what conduct is prohibited." To the extent his overbreadth challenge overlaps with his vagueness argument, we reject it. Moreover, we discern an adequate nexus between the conditions of probation and Fisher's rehabilitation. The presentence investigation report indicates that Fisher has a substance abuse problem. Offenders with drug problems often also have problems with alcohol consumption.

¶ 19. In fact, the PSI indicates that Fisher has experienced difficulties with alcohol abuse. He drank regularly and to the point of intoxication years before he reached the legal drinking age. Fisher also admitted to alcohol problems as an adult. He attributed the problems he had at one point in his life to depression related to his mother's death. Fifteen years later, in a PSI related to another offense, he cited his drug and alcohol problems as reasons for his criminal conduct. Moreover, he has twice been recommended for alcohol and other drug abuse programming. Given this history, the conditions of supervision reasonably serve rehabilitative purposes.

¶ 20. Fisher next contends that the circuit court erroneously exercised its discretion in imposing sentence when it failed to consider various mitigating factors and Fisher's rehabilitative needs. Sentencing lies within the circuit court's sound discretion, and we adhere to a strong policy against interference with such discretion. State v. Mosley, 201 Wis. 2d 36, 43, 547 N.W.2d 806 (Ct. App. 1996). We presume the circuit court acted reasonably unless the defendant can demonstrate unreasonableness based on the record. Id. The court must consider three primary factors in sentencing: (1) the gravity of the offense, (2) the character of the offender, and (3) the need for protection of the public. State v. Harris, 119 Wis. 2d 612, 623, 350 N.W.2d 633 (1984). In doing so, it may also take into account additional relevant factors. Id. at 623-24. The circuit court, in its discretion, decides how much weight to accord each factor. State v. Jones, 151 Wis. 2d 488, 495, 444 N.W.2d 760 (Ct. App. 1989). The record must reflect the exercise of discretion; the circuit court must articulate the basis for the sentence it imposes. Harris, 119 Wis. 2d at 623.

¶ 21. Fisher argues that the circuit court did not satisfy the mandate in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, ¶¶ 39, 76, 678 N.W.2d 197, that the court exercise its discretion on a "rational and explainable basis." We understand him to assert that the court should have explained with specificity the comparative weight it ascribed to each factor and exactly how these factors translated into a specific number of years.

¶ 22. We hold that Fisher is not entitled to this degree of specificity. See id., ¶¶ 53-55 (rejecting Gallion's assertion that the court had to justify the specific number of years and specifically describe the comparative weight of each factor). The evil Gallion sought to remedy was the mechanistic application of the three sentencing factors, in which a circuit court simply described the facts of the case, mentioned the three sentencing factors, and imposed a sentence. Id., ¶¶ 26, 55. We perceive that the court was addressing what this court had also been seeing over the years in appeals involving sentencing discretion.

¶ 23. Criminal defendants would argue that the circuit court had merely paid "lip service" to the three major sentencing considerations without actually discussing them in a way that related to the number of years imposed in prison. In particular, defendants complained that the circuit court gave short shrift to the character component and simply observed that the defendant's bad character weighed against him or her, that the offense was serious and the defendant had to be punished, and that a sentence in prison was therefore in order. We read Gallion as saying that such mechanistic application of the sentencing criteria had to be stopped.

¶ 24. We do not accept Fisher's contention that the circuit court's sentencing remarks personified the evils the Gallion court sought to remedy or his characterization of its rationale as merely a "dismissal [sic] view of those accused of drug use or dealing." Although the circuit court in this case did not have the benefit of Gallion and probably would have described its rationale with even greater specificity if it had, the reasoning it employed adequately satisfied the Gallion decision's criteria for proper sentencing. The court plainly considered all three of the primary sentencing factors in light of the facts of Fisher's case. First, it prominently considered the gravity of the offense, observing that dealing even small amounts — as Fisher did — could have grave consequences to those who purchased the drugs and to the public, which foots the bill for crimes committed by those individuals and rehabilitating them once they become addicted.

¶ 25. The court also considered the needs of protecting the public when it described the evils drug dealing poses to the public and Fisher's recidivism. While it did not say the magic words, "protection of the public," that is clearly what it was referring to: this observation was, in part, a direct response to defense counsel's contention that the threat Fisher posed to the community was not worth the expenditure of public money to incarcerate him.

¶ 26. With regard to character, we strongly disagree with his assertions that "[c]haracter evidence was positive" and the court "completely disregarded character," instead focusing on criminal history. Fisher fails to acknowledge that a criminal record that spans over two decades is evidence of character. The court simply focused upon a major aspect of character that Fisher prefers to overlook.

¶ 27. Finally, the circuit court did not inappropriately ignore Fisher's treatment needs. Although rehabilitation is secondary to the three primary factors, which clearly supported the sentence meted out, see Jones, 151 Wis. 2d at 495 (court may appropriately consider "defendant's need for close rehabilitative control" as an additional consideration), the court did expressly consider this factor. It characterized Fisher as "an institutionalized man" who reoffended every time he was out of jail. In doing so, the court clearly recognized that Fisher could not function as a productive and law-abiding member of the community and required the confines of a structured environment. It did not need to utter the magic word "rehabilitation."

¶ 28. Moreover, Fisher's sentence provides for five years of extended supervision, which by its very nature is designed to serve rehabilitative objectives. The conditions imposed belie Fisher's contention that "[t]he court failed to . . . consider community based rehabilitative means" that would allow him to "test the efficacy of treatment... in a community where temptation existed." The alcohol-related conditions that are the subject of this appeal clearly address any alcohol problem. Other conditions prohibit the use or possession of controlled substances and provide that he must submit to random urine, breath, and drug screenings. He also must seek and maintain employment. All of these conditions serve rehabilitative purposes. If Fisher believes other treatment options would better meet his needs, he may move to modify the conditions of supervision one year prior to his release, pursuant to Wis. Stat. § 302.113(7m)(e)l. At that time, the circuit court, not this court, can reassess the available alternatives.

¶ 29. We hold that Fisher did not prematurely seek review of the constitutional validity of the conditions of supervision. Wisconsin Stat. § 302.113(7m)(e)l. simply does not apply to such challenges. His challenge fails on the merits, however. The circuit court properly considered the primary sentencing factors. Moreover, it imposed a sentence that adequately addressed Fisher's need for rehabilitation.

By the Court. — Judgment and order affirmed.

       All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Defendants complained, for example, about sentencing decisions with explanations like the following: "Here are the facts .... In light of [fill in the three primary sentencing factors] .. . the court imposes the following sentence . ..."