author: N. PATRICK CROOKS, J.

text:
    Agnes E. Maciolek, and Agnes E. Maciolek, Trustee Under the Gerald B. Maciolek and Agnes E. Maciolek Revocable Trust Dated January 21, 1997, Plaintiffs-Respondents-Petitioners, v. City of Milwaukee Employes' Retirement System Annuity and Pension Board, Defendant-Appellant.
    Supreme Court

      No. 2004AP1254.

      Oral argument December 2, 2005.

      —Decided January 31, 2006.

    2006 WI 10
    (Also reported in 709 N.W.2d 360.)

      For the plaintiffs-respondents-petitioners there were briefs by James J. Winiarski and James Winiarski Law Office, Milwaukee, and oral argument by James J. Winiarski.

    For the defendant-appellant there was a brief by Kathy L. Nusslock, Daniel J. Borowski, and Davis & Kuelthau, s.c., Milwaukee, and oral argument by Kathy L. Nusslock.

   N. PATRICK CROOKS, J.

¶ 1. Agnes E. Maciolek (Maciolek) appeals a decision of the court of appeals, reversing the Milwaukee County Circuit Court grant of summary judgment in her favor. The issue before this court is whether the City of Milwaukee Employees' Retirement System Annuity and Pension Board (MERS) can require Maciolek to follow the procedures outlined in Wis. Stat. § 867.046(lm) (2003-04) before MERS is required to make payment on an asset due to her.

¶ 2. We affirm the decision of the court of appeals. We conclude that, in the absence of an agreement between a holder of the property, such as MERS, and the person seeking its transfer, such as Maciolek, a holder may require compliance with the statutory provisions outlined in Wis. Stat. § 867.046(lm) to effect a transfer of this type of property, despite a "Washington Will" provision in a marital property agreement. On the issue of whether or not any of these Global Pension Settlement (GPS) benefits were marital property, since it was not argued before, nor reached by, either the circuit court or the court of appeals, we decline to address the issue here.

r — I

¶ 3. The pertinent facts are not in dispute. In January 1997, Maciolek and her husband, Gerald Maci-olek (Gerald) executed a marital property agreement, pursuant to Wis. Stat. § 766.58 (1997-98), and created a revocable trust. The marital property agreement contained a "Washington Will" provision. The provision was intended to provide for the direct transfer of property that would otherwise require probate, to the transferee, without any probate proceeding. It stated, in relevant part:

1. Upon the death of either of the parties hereto, all of the decedent's ownership interests in any and all property which would otherwise be subject to probate administration, shall immediately pass to and vest in the Trustee of the "GERALD B. MACIOLEK AND AGNES E. MACIOLEK REVOCABLE TRUST DATED JANUARY 21, 1997" without probate and by nontesta-mentary disposition. UPON DEMAND AND UPON RECEIPT OF A COPY OF THIS AGREEMENT, ANYONE HAVING POSSESSION OF SUCH PROPERTY SHALL IMMEDIATELY TRANSFER SAID PROPERTY TO THE SAID TRUSTEE. THE TRANSFER SHALL OCCUR WITHOUT FURTHER PROOF OF AUTHORITY OR OWNERSHIP OF SAID PROPERTY, AND WITHOUT ANY KIND OF COURT PROCEEDING OR COURT ORDER.
21. DIRECTIONS TO ANYONE HOLDING PROPERTY UPON OUR RESPECTIVE DEATHS. UPON THE FIRST SPOUSE'S DEATH, PLEASE IMMEDIATELY PAY OR RE-TITLE ALL ASSETS IN MY NAME, AND WHICH WOULD OTHERWISE BE SUBJECT TO PROBATE, TO THE TRUSTEE OF THE "GERALD B. MACIOLEK AND AGNES E. MACI-OLEK REVOCABLE TRUST DATED JANUARY 21, 1997." FOLLOW HIS OR HER INSTRUCTIONS. PLEASE DO NOT REQUIRE ANY KIND OF COURT APPROVAL OR DOMICILIARY LETTERS.

¶ 4. Gerald was employed by the City of Milwaukee until his retirement on June 1, 1981. As a retired employee, Gerald was a beneficiary of certain funds under GPS, managed by MERS. The GPS constituted the settlement of various lawsuits relating, in part, to pension benefits payable by MERS to City of Milwaukee employees. Under the terms of the settlement agreement, Gerald was entitled to $27,422.24 in benefits. The GPS benefits were titled exclusively in Gerald's name, and the consent to the GPS settlement did not provide for the designation of a beneficiary.

¶ 5. Gerald died on May 28, 2001, before his GPS benefits could be distributed. Following his death, MERS notified Maciolek that it held benefits in Gerald's name and requested the identification of the person legally entitled to receive the funds. Maciolek sent MERS a "Claim and Proof of Death" claiming she was legally entitled to receive the benefits. On January 21, 2002, Maciolek notified MERS she was the representative for Gerald's estate.

¶ 6. On April 12, 2002, MERS wrote Maciolek advising her of the procedures she could use to facilitate payment of Gerald's GPS benefits. On April 24, 2002, Maciolek responded advising MERS that she would not be opening an estate and that she intended to rely on the "Washington Will" provision in the marital property agreement. Pursuant to the procedures outlined in Wis. Stat. § 867.046(2), she subsequently submitted a Form HT-110 and a certified copy of the marital property agreement.

¶ 7. On July 21, 2002, MERS advised Maciolek that it could not accept the Form HT-110 as evidence of her ownership of the GPS benefit because the GPS benefits did not qualify for transfer under Form HT-110 pursuant to Wis. Stat. § 867.046(2). MERS then presented two statutory options to transfer ownership of the GPS benefits based upon Maciolek's reliance on the "Washington Will" provision. She could either provide a certificate of summary confirmation of interest in property pursuant to § 867.046(lm), or provide a verified statement from the personal representative of Gerald's estate filed with the probate court under Wis. Stat. § 865.201.

¶ 8. Maciolek responded, on July 7, 2003, by filing suit against MERS for payment of Gerald's GPS benefits. MERS moved for summary judgment requesting dismissal of the suit on the grounds that Maciolek was required to obtain a certificate issued under Wis. Stat. § 867.046(lm), in order for MERS to legally transfer the GPS benefits to the trust under the `Washington Will" provision. The Milwaukee County Circuit Court, Judge Michael D. Guolee, denied the summary judgment motion of MERS, and instead granted summary judgment to Maciolek. The court indicated that the nonprobate transfer agreement in the Macioleks' marital property agreement complied with the law, and that use of Form HT-110 was the proper procedure to use to transfer this asset. MERS appealed.

¶ 9. The court of appeals reversed the decision of the circuit court. The court of appeals held that MERS could require Maciolek to comply with the confirmation procedures in § 867.046(lm). Maciolek petitioned this court for review.

II

¶ 10. Statutory interpretation presents an issue of law which we review de novo. While the review is de novo, this court benefits from the analyses of the circuit court and the court of appeals. State v. Anderson, 2005 WI 54, ¶ 23, 280 Wis. 2d 104, 695 N.W.2d 731 (citing State v. Waushara County Bd. of Adjustment, 2004 WI 56, ¶ 14, 271 Wis. 2d 547, 679 N.W.2d 514).

III

¶ 11. Before we begin our analysis of whether MERS had the right to insist upon compliance with Wis. Stat. § 867.046(lm), it is helpful to outline the statutory scheme. Wisconsin Stat. ch. 766 governs marital property agreements. Wisconsin Stat. § 766.58(3)(f) authorizes "Washington Will" provisions in such agreements. As noted previously, the statute provides, in relevant part, that in a marital property agreement spouses may "[p]rovid[e] that upon the death of either spouse any of either or both spouses' property, including after-acquired property, passes without probate to a designated person, trust or other entity by nontestamentary disposition." Wis. Stat. § 766.58(3)(f). Such a provision allows married couples to specify the nontestamentary disbursement of property without probate. Id. In addition, Chapter 766 expressly provides that "Chapter 854 applies to transfers at death under a marital property agreement." Wis. Stat. § 766.58(3m).

¶ 12. Wisconsin Stat. § 705.20 governs nonpro-bate transfers at death in regard to, among other things, a marital property agreement. It provides that "[m]oney or other benefits due, controlled by or owned by a decedent before death must be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing...Wis. Stat. § 705.20(l)(a). It also references the applicability of Chapter 854 to the statute. Wis. Stat. § 705.20(3).

¶ 13. Wisconsin Stat. ch. 854 establishes general rules for transfers at death. Included are governing rules for nontestamentary transfers resulting from provisions in various written instruments, including marital property agreements, when the transfer may impact a third party. Wis. Stat. § 854.23. Section 854.23(2) provides protection for payers who make payments pursuant to marital property agreements, who do not have notice of a competing claim. This protection is dependent on the payer receiving a "governing instrument" defined in § 854.23(1) as including any one of three options. First, an individual appointed as personal representative in an informal administration may execute a filed verified statement under Wis. Stat. § 865.201, confirming the transfer of interest in property pursuant to a marital property agreement. Wis. Stat. § 854.23(1). Second, a court may issue a certificate to an individual authorizing transfer of the property upon presentation of specific identified documents to the court, pursuant to Wis. Stat. § 867.046(lm). Third, a recorded application under § 867.046(5) allows any procedure in §§ 867.046(lm), (2) or (3).

¶ 14. Wisconsin Stat. § 867.046 outlines procedures for summary confirmation of an interest in property. The statute provides, in relevant part:

(lm) Upon death; generally. If a domiciliary of this state dies who immediately prior to death had an interest in property in this state, including an interest in survi-vorship marital property, or if a person not domiciled in this state dies having an interest in property in this state, including an interest in survivorship marital property, upon petition of the decedent's spouse or upon petition of a beneficiary of a marital property agreement to the court, of the county of domicile of the decedent or, if the decedent was not domiciled in this state, of any county where the properly is situated, the court shall issue a certificate under the seal of the court. The certificate shall set forth the fact of the death of the decedent, the termination or transfer of the decedent's interest in the property, the interest of the petitioner in the property and any other facts essential to a determination of the rights of persons interested. The certificate is prima facie evidence of the facts recited, and if the certificate relates to an interest in real property or to a debt seemed by an interest in real property, the petitioner shall record a certified copy or duplicate original of the certificate in the office of the register of deeds in each county in this state in which the real property is located.
(2) Upon death; interest in property. As an alternative to sub. (lm), upon the death of any person having an interest in any real property, a vendor's interest in a land contract, an interest in a savings or checking account, an interest in a security or a mortgagee's interest in a mortgage, including an interest in survi-vorship marital property, the decedent's spouse or a beneficiary of a marital property agreement may obtain evidence of the termination of that interest of the decedent and confirmation of the petitioner's interest in the property by providing to the register of deeds of the county in which the property is located the certified death certificate for the decedent and, on applications supplied by the register of deeds for that purpose, all of the following information:
(a) The name, residence and post-office addresses of the decedent and the applicant.
(b) The date of decedent's death.

Wis. Stat. § 867.046 (emphasis added).

IV

¶ 15. With the statutory scheme in mind, we now turn to the question of whether MERS may require Maciolek to comply with the procedures detailed in Wis. Stat. § 867.046(lm) before MERS makes payment on an asset due to her. There are three parts to our discussion. First, whether Maciolek, through her marital property agreement, can eliminate the requirement of any court proceeding before assets due her are transferred? Second, what constitutes a "governing instrument" under Wis. Stat. § 854.23? Finally, if Maciolek is required to comply with procedures in Wis. Stat. § 867.046, may she use those outlined in subsection (2) rather than those in subsection (lm)? We will discuss each in turn.

¶ 16. When examining a statute, "we have repeatedly held that statutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted). Since we determine that the meaning of the statutes at issue is plain, we need not resort to extrinsic sources to assist in our analysis.

¶ 17. Maciolek argues that Wis. Stat. § 705.20 expressly recognizes nonprobate transfers under a marital property agreement containing a "Washington Will" provision in accord with Wis. Stat. § 766.58(3)(f). She further submits that § 705.20(1)(a) allows for provisions in written instruments, including marital property agreements, that require that money or other benefits due "must be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing.. .." Wis. Stat. § 705.20(l)(a) (emphasis added). It is Maciolek's position, therefore, that because her marital property agreement is consistent with Wis. Stat. § 766.58(3)(f), and because the agreement by its very terms specifically precludes the requirement of court confirmation, MERS cannot make her comply with the procedures outlined in Wis. Stat. § 867.046(lm).

¶ 18. MERS's position is that Wis. Stat. § 867.046(lm) is the only means to effectuate a nonpro-bate transfer of pension benefits under a "Washington Will" provision. MERS argues that while the procedures in § 867.046(lm) are not mandatory, per se, they are required for payers and other third parties to gain the protections afforded by Wis. Stat. § 854.23.

¶ 19. We agree with Maciolek that the Wisconsin Legislature intended Wis. Stat. § 705.20 to allow individuals to avoid probate, and that Wis. Stat. § 766.58 allows "Washington Will" provisions. See Reichel v. Jung, 2000 WI App 151, ¶¶ 21-22, 237 Wis. 2d 853, 616 N.W.2d 118. As the court of appeals noted in Jung, § 705.20(1) "is identical to the language presented by § 101 of the Uniform Nonprobate Transfers on Death Act of the Uniform Laws Annotated (U.L.A.)." Id., ¶ 21. The comments of the U.L.A. discussing the scope and purpose of § 101 provide:

This section is a revised version of former Section 6-201 of the original Uniform Probate Code, which authorized a variety of contractual arrangements that had sometimes been treated as testamentary in prior law. ...
Because the modes of transfer authorized by an instrument under this section are declared to be non-testamentary, the instrument does not have to be executed in compliance with the formalities for wills; nor does the instrument have to be probated, nor does the personal representative have any power or duty with respect to the assets.
The sole purpose of this section is to prevent the transfers authorized here from being treated as testamentary.

Id. (citing Unif. Nonprobate Transfers on Death Act § 101 cmt., 8B U.L.A. 200 (1993)). The Jung court concluded:

In short, these comments explain how certain contractual arrangements have been treated as testamentary regardless of contractual language addressing the transfer of rights and ownership upon the death of the contract creditor. The purpose of the Unif. Nonprobate Transfers on Death Act § 101 is to take such contractual arrangements out of the realm of probate and to permit the terms of the contract to be upheld.

Jung, 237 Wis. 2d 853, ¶ 22.

¶ 20. We cannot agree, however, with Maciolek's conclusion that her valid "Washington Will" provision should be effective to transfer the GPS funds without any sort of court action or proceeding, unless MERS agrees to such transfer. The decision in Jung does not mean that there should be no court involvement, ever, in regard to the transfer of nonprobate property. No provision of Wis. Stat. §§ 766.58(3) or 705.20 permits parties to ignore Chapter 854, or to agree to prohibit court involvement in implementing a marital property agreement. As the court of appeals noted, the fact that "Washington Will" provisions "permit transfer of property without probate. . . . does not mean the legislature allowed parties to agree to no court involvement in implementing transfer of ownership and creating a reliable and public record of transfer." Maciolek v. Milwaukee Employes' Retire. Sys. Annuity, 2005 WI App 74, ¶ 19, 280 Wis. 2d 585, 695 N.W.2d 875.

¶ 21. Furthermore, the confirmation procedure outlined in Wis. Stat. § 867.046(lm) is not probate. Probate is "[t]he judicial procedure by which a testamentary document is established to be a valid will. . . Black's Law Dictionary, 1219 (7th ed. 1999). While § 867.046(lm) does require involvement by a circuit court, and its confirmation procedure is sometimes employed in the probating of an estate, the procedure itself is not probate. The requirement of a confirmation procedure in accordance with § 867.046(lm) is, therefore, not contrary to the legislative intent of allowing individuals to avoid probate.

¶ 22. We are further persuaded that Maciolek cannot contract around the confirmation requirements MERS may choose to require by the fact that MERS was not a party to the contract between Maciolek and Gerald. Wisconsin courts have long recognized that one cannot enforce a contract against an entity that is not a party to it. See Abramowski v. Wm. Kilps Sons Realty, Inc., 80 Wis. 2d 468, 472, 259 N.W.2d 306 (1977). We are persuaded by MERS's argument that as a fiduciary of the pension benefits of City of Milwaukee employees and retirees, MERS has a duty to ensure that pension benefits, including GPS benefits, are distributed to an appropriate party or parties, in compliance with the appropriate statutes. It is also significant that Maciolek was not designated, and could not be designated, as the beneficiary of Gerald's GPS funds, as the consent to the GPS settlement did not provide for the designation of a beneficiary. For these reason, MERS need not acquiesce to Maciolek's claim that her contract with Gerald supersedes any court proceeding that would prove her ownership of the pension benefits.

¶ 23. We next turn to the issue of what constitutes a "governing instrument" for purposes of Wis. Stat. § 854.23. We look at this issue in the context of a marital property agreement, since that is the instrument that is before us. Section 854.23(1) provides that a " 'governing instrument' includes a filed verified statement under s. 865.201, a certificate under s. 867.046 (lm) or a recorded application under s. 867.046 (5)." Wis. Stat. § 854.23(1) (emphasis added). Maciolek argues that the word "includes" is intended to convey an addition to, not a limitation of, the types of governing instruments already listed in the statute. In other words, Maciolek suggests that anything listed in Wis. Stat. § 854.01 as falling within the definition of a "governing instrument," including a marital property agreement, should also be considered a governing instrument under § 854.23.

¶ 24. We disagree with this analysis under the circumstances presented to us in this case. Wisconsin Stat. § 854.01 defines "governing instrument" in the chapter quite broadly. The chapter, as a whole, clearly intends a marital property agreement be considered a "governing instrument." However, § 854.23, the section concerning protection of payers and other third-parties, defines "governing instrument" for purposes of that section, as one of three specific alternatives. Wis. Stat. § 867.046(1).

¶ 25. Although our analysis is limited to the circumstances of a marital property agreement, we find it necessary to conclude that if "governing instrument" were intended to encompass the broader definition set out for the chapter generally, there would be no reason for the legislature to have enumerated the three alternatives it did in this section.

t7]

¶ 26. We conclude that, under the circumstances presented in this case, the plain language of Wis. Stat. § 854.23 allows MERS to require Maciolek to provide to it a governing instrument as defined in that section. We note that MERS need not require compliance with that provision before it can legally transfer funds to a beneficiary. However, to be afforded the protections under § 854.23, compliance with the statutory requirements is mandatory. Wis. Stat. § 854.23(2). MERS may, therefore, choose to mandate compliance.

¶ 27. Maciolek next argues that even if Wis. Stat. § 867.046 applies to Gerald's GPS benefits, she should be allowed to use the procedures outlined in § 867.046(2) instead of (lm). We cannot support this conclusion. Section 867.046(lm) applies to transfers at death, and specifically includes transfers of assets to the beneficiary of a "Washington Will" provision in a marital property agreement. In contrast, § 867.046(2), which allows confirmation of the petitioner's interest in property by way of a Form HT-110, limits its applicability to five types of property: "an interest in any real property, a vendor's interest in a land contract, an interest in a savings or checking account, an interest in a security or mortgagee's interest in a mortgage, including an interest in survivorship marital property. . . ." Wis. Stat. § 867.046(2).

¶ 28. Maciolek urges this court to read the provisions of Wis. Stat. § 867.046(2) as "upon the death of any person . . . the decedent's spouse or a beneficiary of a marital property agreement may obtain evidence of the termination of that interest of the decedent and confirmation of the petitioner's interest in the property by providing to the register of deeds ..." a Form HT-110. In other words, Maciolek urges this court to completely ignore the language limiting the types of property to which this procedure may be applied. Such a reading is not only illogical, it would render the description of eligible property a surplusage. We reject this construction. See Kelley Co. v. Marquardt, 172 Wis. 2d 234, 250, 493 N.W.2d 68 (1992). Therefore, because the GPS pension benefits do not fall within the classes of property specified in subsection 2 that allow for this alternate confirmation procedure, Maciolek may not substitute the procedures in § 867.046(2) for those of § 867.046(lm).

¶ 29. The GPS benefits do not come within "sur-vivorship marital property," as they are titled solely in Gerald's name, and were not reclassified as "survivor-ship marital property" in their marital property agreement. As noted earlier, it is also significant that Maciolek was not designated, and could not be designated, as the beneficiary of Gerald's interest in the GPS settlement funds. Since the GPS benefits are neither survivorship marital property, nor any of the other types of property enumerated in Wis. Stat. § 867.046(2), Maciolek may not utilize the procedures in § 867.046(2) in place of those outlined in (lm).

¶ 30. Although the issue was not previously briefed or argued, Maciolek maintains that she did preserve her claim that MERS ignored her marital property interest in the GPS benefits. "Whether [Maci-olek] could have elected to receive half of the benefits, and the proof she would have been required to submit, were not issues submitted to the trial court..." and the court of appeals held that such issues were not properly before it, therefore, such matters are not properly before this court either. Maciolek, 280 Wis. 2d 585, ¶ 22. We decline to address them further here. See Allen v. Allen, 78 Wis. 2d 263, 270, 254 N.W.2d 244 (1977)(court will generally not consider issues raised for the first time on appeal).

V

¶ 31. We conclude that, in the absence of an agreement between a holder of the property, such as MERS, and the person seeking its transfer, such as Maciolek, a holder may require compliance with the statutory provisions outlined in Wis. Stat. § 867.046(lm) to effect a transfer of the type of property at issue here, despite a "Washington Will" provision in a marital property agreement. On the issue of whether or not any of these GPS benefits were marital property, since it was not argued before, nor reached by, either the circuit court or the court of appeals, we decline to address the issue here.

By the Court. The decision of the court of appeals is affirmed.

        Maciolek v. Milwaukee Employes' Retire. Sys. Annuity, 2005 WI App 74, 280 Wis. 2d 585, 695 N.W.2d 875.

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

       As the court of appeals noted, although Wis. Stat. § 766.58 has been amended since the Macioleks executed their marital property agreement, Maciolek does not argue that this court consider the 1997 version of the statute. Therefore, like the court of appeals, we will consider only the current version of the statute. See Maciolek, 280 Wis. 2d 585, ¶ 3 n.2.

       Wisconsin Stat. § 766.58(3)(f) is commonly referred to as the "Washington Will" statute. It provides that, pursuant to a marital property agreement, spouses may agree to "[p]rovid[e] that upon the death of either spouse any of either or both spouses' property, including after-acquired property, passes without probate to a designated person, trust or other entity by nontestamentary disposition." Wis. Stat. § 766.58(3)(f).

       Wisconsin Stat. § 705.20 Nonprobate transfers at death provides, in relevant part:
      (1) A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary. This subsection governs a written provision that:
      (a) Money or other benefits due, controlled by or owned by a decedent before death must be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will executed either before or at the same time as the instrument, or later;
      (3) Chapter 854 applies to transfers at death under this section.
      Wis. Stat. § 705.20 (emphasis added).

       Wisconsin Stat. § 854.23 Protection of payers and other 3rd parties provides, in relevant part:
      (1) Definition. In this section, "governing instrument" includes a filed verified statement under s. 865.201, a certificate under s. 867.046 (lm) or a recorded application under s. 867.046 (5).
      (2) Liability depends on notice, (a) A payer or other 3rd party is not liable for having transferred property to a beneficiary designated in a governing instrument who, under this chapter, is not entitled to the property, or for having taken any other action in good faith reliance on the beneficiary's apparent entitlement under the terms of thejjoverning instrument, before the payer or other 3rd party received written notice of a claimed lack of entitlement under this chapter. However, a payer or other 3rd party is liable for a payment made or other action taken after the payer or other 3rd party received written notice of a claimed lack of entitlement under this chapter.
      Wis. Stat. § 854.23 (emphasis added).

       In her brief to this court, Maciolek correctly notes that the court of appeals did not address the impact of Wis. Stat. § 705.20 on the requirements of Wis. Stat. § 854.23. While we agree with the court of appeals that § 705.20 has no effect on the issue at hand, we will discuss the parameters of the statute.

       Maciolek does not argue that Wis. Stat. § 867.046(lm) is inapplicable to this situation. Instead, she argues that § 867.046(lm) is not mandatory.

       It was suggested by counsel for Maciolek at oral argument that if the legislature wished to amend the statutes to reflect Maciolek's interpretation of the effect of Wis. Stat. §§ 705.20 and 766.58, it might add language to § 705.20 to the effect that no other summary procedures or probate procedures are mandatory to accomplish a nonprobate transfer.

       A full probate administration would have required that a person petition for administration of an estate, establish that the transferring document was executed consistent with the formality of a will, request the court to appoint a personal representative who would have control over the assets to be transferred, inventory the assets, pay all creditors and taxes due, distribute the remaining assets according to the governing document and account to the court for each of these actions. See Wis. Stat. ch. 856.

       Wisconsin Stat. § 854.01 states:
      In this chapter, "governing instrument" means a will; a deed; a trust instrument; an insurance or annuity policy; a contract; a pension, profit-sharing, retirement or similar benefit plan; a marital property agreement under s. 766.58(3)0); a beneficiary designation under s. 40.02(8)(a); an instrument under ch. 705; an instrument that creates or exercises a power of appointment or any other dispositive, appointive or nominative instrument that transfers property at death.
      Wis. Stat. § 854.01.

       While there is no claim that MERS has received or expects to receive notice that Maciolek is not entitled to the GPS benefits, the issue in this case is not notice, but rather the lack of a "governing instrument."

       Wisconsin Stat. § 867.046(l)(a) defines "beneficiary of a marital property agreement" as a "designated person, trust or other entity having an interest in property passing by nontes-tamentary disposition under s. 766.58(3)(f)." Wis. Stat. § 867.046(l)(a).

       Wisconsin Stat. § 766.60 provides, in relevant part:

        Optional forms of holding property; survivorship ownership. (1) Spouses may hold marital property in a form that designates the holders of it by the words "(name of one spouse) or (name of other spouse) as marital property".
      (2) Spouses may hold marital property in a form that designates the holder of it by the words "(name of one spouse) and (name of other spouse) as marital property".
      (5)(a) If the words "survivorship marital property" are used instead of the words "marital property" in the form described in sub. (1) or (2), the marital property so held is survivorship marital property. On the death of a spouse, the ownership rights of that spouse in the property vest solely in the surviving spouse by nontestamentary disposition at death. The first deceased spouse may not dispose at death of any interest in survivorship marital property. Holding marital property in a form described in sub. (1) or (2) does not alone establish survivorship ownership between the spouses with respect to the property held.
      Wis. Stat. § 766.60.


source: Caselaw Access Project

author: CURLEY, J. FINE, J. KESSLER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Lionel N. Anderson, Defendant-Appellant.

    Court of Appeals

      No. 2004AP2010-CR.

      Submitted on briefs August 2, 2005.

      —Decided October 11, 2005.

    2005 WI App 238
    (Also reported in 707 N.W.2d 159.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Harry R. Hertel of Hertel & Gibbs, S.C., of Eau Claire.
    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 Fine, Curley and Kessler, JJ.

       Petition to review granted 12-14-05.

   CURLEY, J.

¶ 1. Lionel N. Anderson appeals the judgment convicting him of first-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(1) (2001-02). Anderson submits that he is entitled to a new trial because the trial court declined two requests by the jury for Anderson's testimony without Anderson's knowledge or input, violating his constitutional rights, and because he claims he was entitled to have his testimony reread to the jury. Alternatively, Anderson submits that because his attorney rendered ineffective assistance, he is entitled to a Machner hearing. After reviewing the record, we conclude that because Anderson's attorney failed to object to the trial court's unilateral decision to require the jury to specify exactly which parts of Anderson's testimony it wished read back, we must review these actions under the Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel standard. Inasmuch as Anderson has not shown that he was prejudiced by any of his attorney's actions, we affirm.

I. Background.

¶ 2. Charlene Anderson, the legal guardian of nine-year-old M.L. and the wife of Anderson, called the police after she received a phone call late one night from her sister who told her that she had reason to believe that M.L. may have been sexually assaulted by Anderson. After first denying that Anderson had assaulted her, M.L. eventually revealed to Charlene that Anderson made her suck his penis when Charlene was in the hospital in February 2001. M.L. claimed that Anderson called her into the kitchen and asked her if she wanted to play with his "tail." When she answered "no," he forced her to get down on her knees next to where he was sitting, and demanded that she suck his penis.' She did as she was told.

¶ 3. After hearing about the assault, Charlene confronted her husband and told him to leave. Anderson left, and traveled to Kentucky where he was arrested. He later agreed to be returned to Milwaukee. After the police were contacted, M.L. was interviewed by a social worker, and the entire interview was recorded on videotape. During the interview, M.L. described the sexual assault in detail. After Anderson waived his right to a preliminary hearing and changed attorneys, a number of pretrial conferences were held. The case eventually proceeded to a jury trial. At it, the State called six witnesses and the defense called three.

¶ 4. Shortly after the trial began, the State presented the video of M.L.'s interview with the social worker. Although notice of the State's intention to introduce the tape at the preliminary hearing had been sent to then-defense counsel, no notice was sent to Anderson's trial attorney that it would be introduced at trial, and neither Anderson nor his trial attorney saw the video before trial. Before the trial, the State filed a motion in limine seeking to introduce evidence concerning the effects of sexual assault through an expert witness. At trial, no objection was raised to the fact that no notice was sent to defense counsel or that the video had not been viewed by the defense. The tape was shown to the jury before M.L. testified. Anderson's attorney did not object to this procedure.

¶ 5. As anticipated, the State called an expert witness who explained the dynamics of child sexual abuse to the jury. This witness was not listed on the State's witness list. No objection was raised to her testifying because of the failure to list her as a potential witness. One of the areas discussed by the expert was the delay in reporting often seen in intra-family sexual abuse cases. During Charlene's testimony, she mentioned that after the sexual assault allegations became known, Anderson left the state and went to Kentucky. Anderson's attorney did not object to her testimony regarding Anderson's fleeing the state.

¶ 6. During the trial, the trial court, apparently in error, admitted an exhibit that neither attorney had requested. It was written by the social worker who taped M.L.'s video and summarized M.L.'s testimony on the video. This exhibit was later allowed into the jury room during deliberations.

¶ 7. After the jury had deliberated for some time, the jury alerted the bailiff that it had reached a verdict. However, before reading the verdict, the trial court advised the parties that the jury had twice requested certain testimony to be read back and that the trial court had refused to provide it unless the jury could be more specific. These communications with the jury occurred without the trial court informing or consulting with the attorneys or Anderson. According to the trial court's recollection, the jury sent a note asking to have Anderson's and M.L.'s testimonies read back. The trial court asked the jury to be more specific. The jury then sent another note informing the court that it wanted Anderson's testimony read back because it did not understand his testimony. Again, the trial court asked the jury to be more specific. Nothing more was heard from the jury until it reached a verdict. Anderson's attorney raised no objection to the trial court's actions. Anderson was convicted of the charge and sentenced to twelve years of initial confinement and six years of extended supervision. He brought a postconviction motion which was denied.

II. Analysis.

A. Anderson's attorney was not ineffective for failing to object to the trial court's communicating with the jury without his knowledge.

¶ 8. Anderson argues that the trial court's communications with the jurors without his input were errors of constitutional magnitude and, as a result, he is entitled to a new trial. In support of his argument, Anderson notes that before conferring with the jurors concerning their request to hear Anderson's testimony, the trial court granted the jury's request to view M.L.'s video interview and provided a TV and VCR for the jury with which to view it. He contends that the trial court's refusal to reread his testimony denied him a fair and balanced jury deliberation and thus, the error is not harmless. Further, Anderson submits that we should have little confidence in the trial court's recollections because very little is known about the jury's requests or the trial court's responses, as the jury's questions and the trial court's answers were thrown away by the jurors, and are thus not part of the record. Because Anderson has presented nothing to contradict the trial court's recollections, we accept them as being accurate.

¶ 9. It is settled law that when a trial defense lawyer does not object, the test is not whether the alleged trial court error was "harmless beyond a reasonable doubt," with the burden on the State to show this, State v. Stuart, 2005 WI 47, ¶ 40, 279 Wis. 2d 659, 695 N.W.2d 259 (citation omitted) (state has burden), but, rather, whether, under an ineffective-assistance-of-counsel analysis, the defendant has shown prejudice under Strickland, 466 U.S. at 687. See Kimmelman v. Morrison, 477 U.S. 365, 374-75 (1986); State v. Carprue, 2004 WI 111, ¶¶ 49-53, 274 Wis. 2d 656, 683 N.W.2d 31.

¶ 10. The rule that objections are generally waived if not made at trial applies equally to constitutional and non-constitutional objections. See State v. Huebner, 2000 WI 59, ¶ 10, 235 Wis. 2d 486, 611 N.W.2d 727 ("It is a fundamental principle of appellate review that issues must be preserved at the circuit court."); State v. Edelburg, 129 Wis. 2d 394, 401, 384 N.W.2d 724 (Ct. App. 1986) ("The waiver doctrine applies even to the claim of a constitutional right") (citing State v. Marshall, 113 Wis. 2d 643, 653, 335 N.W.2d 612 (1983)).

¶ 11. A defendant claiming ineffective assistance of counsel must prove both that his or her lawyer's representation was deficient, and, as a result, the defendant suffered prejudice. See Strickland, 466 U.S. at 687. To prove deficient performance, the defendant must show specific acts or omissions of his attorney that fall "outside the wide range of professionally competent assistance." Id. at 690. To show prejudice, the defendant must demonstrate that the result of the proceeding was unreliable. Id. at 687. If the defendant fails on either prong — deficient performance or prejudice — his ineffective assistance of counsel claim fails. Id. at 697. We "strongly presumeD" counsel has rendered adequate assistance. Id. at 690.

¶ 12. "Whether a defendant's trial counsel provided ineffective assistance of counsel is a mixed question of law and fact." State v. Guerard, 2004 WI 85, ¶ 19, 273 Wis. 2d 250, 682 N.W.2d 12 (citing Strickland, 466 U.S. at 698); see State v. Franklin, 2001 WI 104, ¶ 12, 245 Wis. 2d 582, 629 N.W.2d 289. A reviewing court will not disturb the circuit court's factual findings unless they are clearly erroneous. Franklin, 245 Wis. 2d 582, ¶ 12. "Whether the trial counsel's conduct was deficient and whether it was prejudicial to the defendant are questions of law reviewed by this court de novo." Id. Because we are satisfied from our review of the record that Anderson suffered no prejudice, we decline to examine whether his attorney's actions were deficient.

¶ 13. Wisconsin Stat. § 805.13(1) obligates the trial court to conduct any communications with the jury on the record. Section 805.13(1), in pertinent part, reads: "Statements by judge. After the trial jury is sworn, all statements or comments by the judge to the jury or in their presence relating to the case shall be on the record." Additionally, in criminal cases, a defendant has a constitutional right to be present during any communications between the judge and the jury. See State v. Burton, 112 Wis. 2d 560, 565, 334 N.W.2d 263 (1983). Here, there is no question that the trial court erred. Given that Anderson's attorney did not object, we look to see if Anderson was prejudiced by the trial court's actions. We conclude he was not.

¶ 14. The trial court recollected that:

Since the last time we were on the record, I received two other requests from the jury for information which I answered unilaterally.
I gave a standard answer which I don't believe would be objectionable and, in fact, which I think is the only reasonable answer.
The jury asked for the entire testimony of Mr. Anderson and [M.L.] to be read back. My standard answer and the one that I gave the jury was because it's cumbersome to read hack that amount of testimony and because it may be unnecessary, please tell us what parts, if any, you can't remember and we would be happy to provide you with that information and I raged them to rely on their collective memory. Then I received a follow-up question saying that the jury didn't understand all of Mr. Anderson's testimony and to that response — and to that question I said if there's [sic] any parts that you can't understand, list them for us and we would be able to provide you with the testimony read back on those points.

(Footnote added.) As noted, the jury sent no additional notes before reaching a verdict.

¶ 15. After reviewing the trial transcript, we are satisfied that the trial court's communications regarding the reading back of Anderson's testimony did not prejudice Anderson. First, the State had a strong case against Anderson. The jury had the opportunity to view the video interview of M.L., in which she convincingly recounted the sexual assault. In it, M.L.'s physical description of Anderson's penis suggested that Anderson was not circumcised. Anderson admitted later that, in fact, he was not circumcised. M.L. also testified before the jury that what she said on the tape was true.

¶ 16. Other witnesses that the jury could find credible also testified for the State. Charlene Anderson told the jury about her efforts to get M.L. to finally reveal the sexual assault, and what actions she took once M.L. revealed the assault. Also corroborating M.L.'s testimony were the testimonies of two of M.L.'s young female cousins, who both claimed that months before this matter became public, M.L. had told them Anderson had been "messing" with her, and had asked them not to tell anyone. The jury also heard from the expert witness, who explained to the jury that in cases of child sexual assault by a family member, it is quite common for a child to delay reporting the assault.

¶ 17. In contrast, Anderson's defense was weak. It consisted of Anderson's rambling, and often confusing, version of the events, in which he denied having any sexual contact with M.L. Essential to Anderson's defense was the testimony of his first cousin, who claimed not to know Anderson had been arrested for sexual assault when he went to Charlene Anderson's house and had, the cousin alleged, a conversation with M.L. in which M.L. had told him that "papa didn't do that," and that Charlene Anderson had whipped her until she said that Anderson sexually assaulted her.

¶ 18. In rebuttal, Charlene Anderson testified that while Anderson's cousin did come over to the house to retrieve a letter addressed to Anderson, he was never inside the house and M.L. was not home at the time of his visit. M.L. testified that she never saw or talked to the cousin after Anderson was arrested.

¶ 19. In sum, the jury could have easily found that the State presented a variety of solid witnesses, while Anderson's defense was unpersuasive and his version of the events confusing. Thus, we conclude that Anderson suffered no prejudice because there was no reasonable possibility that the error affected the trial's outcome. Moreover, the jury indicated they wanted Anderson's testimony read back to them because they did not understand it, not that they could not remember it. Had the testimony been read back, it would not have become more understandable, and it is likely that the rereading would have hurt Anderson more than it would have helped him.

¶ 20. With regard to Anderson's argument that he had a constitutional right to have his testimony read to the jury, we note that such a request is subject to the trial court's discretion. See State v. Simplot, 180 Wis. 2d 383, 404, 509 N.W.2d 338 (Ct. App. 1993). Here, the trial court properly exercised its discretion by requiring the jury to specify just what testimony of Anderson's they wanted read back. Thus, we are satisfied that no error occurred.

B. Anderson's attorney was not ineffective in any other respect.

¶ 21. Next, Anderson submits that if he is unsuccessful in obtaining a new trial because of the trial court's errors in communicating with the jury, then he is entitled to have the matter remanded for a Machner hearing to determine if he is entitled to a new trial because of his trial attorney's ineffectiveness. First, Anderson contends that his attorney rendered ineffective assistance when he failed to object to the introduction of M.L.'s video because he was not given formal notice required by Wis. Stat. § 908.08 that it would be introduced at trial and, in any event, it should not have been introduced before M.L.'s testimony. Further, he claims that admitting it in the manner in which it was done violated the rule promulgated in Crawford v. Washington, 541 U.S. 36 (2004). Second, Anderson also argues that his attorney's assistance was ineffective because no objection was lodged when the State called an expert witness who was not on the State's witness list. Third, no objection was raised when the trial court admitted into evidence an exhibit neither attorney requested and the exhibit was later sent to the jury. Fourth, no objection was raised when Charlene Anderson testified that Anderson fled the state and went to Kentucky after the sexual assault was reported to the police. As noted, Anderson must prove both that his attorney's representation was deficient and that he was prejudiced by his attorney's actions.

¶ 22. Anderson complains that his attorney was ineffective for failing to object to the viewing of M.L.'s video. Although the State may not have given Anderson's attorney formal notice of the State's intention to introduce the videotape at trial, the State did give formal notice that the tape would be introduced at the preliminary hearing. Additionally, it is apparent from the record that Anderson's attorney was aware of the existence of the tape. Several pretrial conferences discussing the upcoming trial were held before the trial. The social worker who interviewed M.L. and taped the video was on the State's list of witnesses, and it is evident that Anderson's attorney was prepared to cross-examine this witness. We also note that nowhere in the record does trial counsel state that he was taken by surprise by the State's intention to show the tape to the jury or that he was unaware of the tape. Further, it is not surprising that Anderson never viewed the tape before trial because he was incarcerated. Although Anderson complains that he should have seen the tape before trial, he has not stated what important information he could have relayed to his attorney if he had viewed the video before trial. Consequently, no prejudice has been shown because no formal notice was given, or because Anderson did not see the video before trial.

¶ 23. Anderson also complains that the showing of the tape before the live testimony of M.L. was error,. requiring his attorney to object. He is wrong. Wisconsin Stat. § 908.08(5) actually proscribes this procedure:

Videotaped statements of children. ... (a) If the court or hearing examiner admits a videotape statement under this section, the party who has offered the statement into evidence may nonetheless call the child to testify immediately after the videotape statement is shown to the trier of fact. Except as provided in par. (b), if that party does not call the child, the court or hearing examiner, upon request by any other party, shall order that the child be produced immediately following the showing of the videotape statement to the trier of fact for cross-examination.

(Underlining supplied.) See State v. James, 2005 WI App 188, 285 Wis. 2d 783, 703 N.W.2d 727.

¶ 24. Next, Anderson claims that the viewing of the tape violated the holding in the landmark Crawford case. Again, he is incorrect. The holding in Crawford stands for the proposition that: "Testimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." 541 U.S. at 59 (footnote omitted). Here, the witness, M.L., who made the out-of-court statement, was in court and was cross-examined. Therefore, the holding enunciated in Crawford is not relevant. See James, 703 N.W.2d 727.

¶ 25. Anderson next complains that his attorney was ineffective when he failed to object to the State calling an expert witness not listed on the witness list. While the State never gave the name of the specific witness it intended to call, the State did file a motion in limine alerting both Anderson's attorney and the court that such a witness would be called, and in the motion, the State outlined the type of expertise that would be elicited from the witness. In our view, in doing so, the State complied with the requirement of Wis. Stat. § 971.23(l)(e) that a written summary of an expert's findings be made available to the defense. Further, while the witness's name was not on the witness list, the State complied with the intent behind the discovery statutes that the opposition not be faced with surprise witnesses at trial. Since Anderson's attorney knew an expert would be called by the State, Anderson has not satisfied his burden of showing how he suffered prejudice when his attorney failed to object to the witness on that basis.

¶ 26. Anderson's last complaint regarding the expert witness is his claim that his attorney's failure to request a psychological examination of the victim, after learning of the subject matter of the State's proposed expert witness's testimony, constituted ineffective assistance of counsel. He claims that State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993), supports his position. Under the Maday holding, however, Anderson would not have been entitled to an examination of the victim. Maday permits such an examination when:

the state manifests an intent during its case-in-chief to present testimony of one or more experts, who have personally examined a victim of an alleged sexual assault, and will testify that the victim's behavior is consistent with the behaviors of other victims of sexual assault, a defendant may request a psychological examination of the victim. A defendant making such a request must present the court with evidence that he or she has a compelling need or reason for the psychological examinations.

Id. at 359-60.

¶ 27. Here, the expert witness testified that she never interviewed M.L. or viewed the videotape of M.L.'s interview. Therefore, had Anderson's attorney requested such an examination under Maday, it would have been denied. Consequently, Anderson suffered no prejudice for the failure to make such a request.

¶ 28. Anderson also fails to explain what prejudice he suffered by the trial court's apparent error in admitting the exhibit which summarized the social worker's video interview with M.L. Although neither side asked that it be admitted, the trial court admitted it and later allowed it into the jury room. As the State notes, the report contains no new information and merely summarizes what is on the tape. Inasmuch as the exhibit would have been admitted had either side requested it, Anderson was not harmed by its admission.

¶ 29. Finally, Anderson submits that his attorney was ineffective for failing to object to Charlene Anderson testifying that Anderson fled the state after learning that the police had been contacted concerning M.L.'s complaint. Anderson characterizes this testimony as falling under Wis. Stat. § 904.04(2) (other acts evidence), requiring a pretrial motion before it can be introduced. Again, we believe Anderson is mistaken because Anderson's evidence of flight is not other-acts evidence. See State v. Miller, 231 Wis. 2d 447, 462, 605 N.W 2d 567 (Ct. App. 1999). Rather, ' "flight is an admission by conduct." Id. at 460 (citation omitted). Once again, had Anderson's attorney objected to this testimony, the objection would have been overruled. Anderson's attorney cannot be faulted for failing to make a meritless objection. See State v. Harvey, 139 Wis. 2d 353, 380, 407 N.W.2d 235 (1987).

¶ 30. For the reasons stated, the trial court is affirmed.

By the Court. — Judgment and order affirmed.

FINE, J.

¶ 31. {concurring). I join fully in the Majority opinion, and write this in response to what I see as the Dissent's glissade around controlling law.

¶ 32. As the Majority opinion points out, unobjected-to-trial-court errors are analyzed under the ineffective-assistance-of-counsel standards promulgated by Strickland v. Washington, 466 U.S. 668, 687 (1984), even though those errors deprive the defendant of a constitutional right. See Kimmelman v. Morrison, 477 U.S. 365, 374-375 (1986); State v. Carprue, 2004 WI 111, ¶ 47, 274 Wis. 2d 656, 678, 683 N.W.2d 31, 42-43. Relying on a pre-Strickland decision, State v. Burton, 112 Wis. 2d 560, 334 N.W.2d 263 (1983), the Dissent contends, in essence, that the Burton harmless-error standard should apply because the defendant never discussed with his trial lawyer whether the trial lawyer should object to what the trial court had done, and, presumably, whether to seek a mistrial. In my view, this is where the Dissent falters.

¶ 33. This appeal is not about a pre-event waiver (as it might be if the defendant's trial lawyer had told the trial court not to seek defense input if the jury had any questions), but, rather, about the trial lawyer's failure to object to what the trial court had already done. This is thus a straight ineffective-assistance-of-counsel situation, and, unlike a harmless-error analysis where the State has the burden of proof, the defendant cannot prevail unless he shows Strickland prejudice. He has not and, significantly, the Dissent points to nothing in the transcript of the defendant's testimony that contradicts the Majority opinion's assessment of that testimony.

¶ 34. The Dissent's view that the command of Kimmelman and Carprue applies in cases of constitutional error only when the defendant personally agrees to what the lawyer does, not only ignores the rule recognized by those two decisions but, also, if adopted, would gut Strickland and make it the rare case where it applied.

KESSLER, J.

¶ 35. (concurring in part; dissenting in part). The record discloses no attempt by the trial court to contact the State and defense counsel when faced with obviously significant requests from the jury during its deliberations. The trial court, without consulting counsel, twice decided not to grant the jury's request to have Anderson's testimony read to the jurors unless the jurors could specify which portions of his relatively short testimony they wanted to hear. They wanted to hear it all, so they heard nothing.

¶ 36. Earlier in the deliberations, the trial court consulted with counsel and over defense counsel objections allowed the jurors to view a videotaped statement of one of the victims. The net effect of the trial court's later unilateral decisions was to permit the jurors to hear again only testimony unfavorable to Anderson. I believe the supreme court's decision in Franklin v. State, 74 Wis. 2d 717, 724, 247 N.W.2d 721 (1976), which cautions against the dangers of overemphasizing the value of a recorded statement relative to the testimony from the witness stand, and the process required for fairness when the jury requests reading of testimony explained in Kohlhoff v. State, 85 Wis. 2d 148, 159, 270 N.W.2d 63 (1978), require reversal and remand for a new trial. Consequently, I respectfully dissent from that portion of the Majority opinion involving the jury's requests to review Anderson's testimony, and from the Majority's conclusion that the trial court's action resulted in no error for which Anderson can obtain relief.

¶ 37. The record discloses a written request by the jury for all exhibits. Counsel were present and consulted. Anderson's counsel objected to allowing the jury to view a videotape of one victim's testimony on grounds that it unduly emphasized the statement, which was unfavorable to Anderson. The trial court determined it would send the videotape to the jury, but instructed them to view it only once. The trial court also agreed to provide the jury with all of the other exhibits that had been admitted into evidence. These events occurred at some unknown time during the afternoon when the jury began its deliberations.

¶ 38’ There is no record of subsequent jury requests, nor are the notes the jury sent making those requests available. They were apparently inadvertently destroyed. However, when the jury returned its verdict on the second day of deliberations, the trial court for the first time advised counsel and Anderson that the jury had twice requested that Anderson's testimony be read. The first request the trial court described as a request that all of Anderson's testimony and one victim's testimony be read. The trial court indicated that it had responded by telling the jury that it had to specify the parts the jurors wished to hear, and that it urged the jurors to rely on their "collective memory."

¶ 39. The trial court also disclosed that the jury later made a second request to have Anderson's testimony read. The jury, as reported by the trial court, indicated this time that it "did not understand all of [defendant's] testimony." Without providing any opportunity for input from counsel, the trial court again refused to grant the request unless the jury specified what parts it did not understand. The jury was again unable to clarify its request, so it was not permitted to hear Anderson's testimony.

¶ 40. The trial court's decision to deny the jury's request to hear Anderson's testimony was especially damaging to Anderson's case because, as is apparent from the record, he had difficulty communicating. After careful review of the mere twenty-five pages of transcript, which compose Anderson's entire testimony, it is obvious why the jury had difficulty understanding portions of his testimony. Anderson, who testified he has a fourth grade education, was not an articulate witness. Several pages of the transcript involve obvious confusion between the questioner and Anderson as to dates when he became aware of certain material facts. Parts of Anderson's testimony are unclear and confusing. From its reading of his testimony the Majority concludes that Anderson was helped by not having the testimony repeated. I see that as a question the jury had a right to decide, but was erroneously not permitted to do so.

¶ 41. Not only was the decision to deny the jury's two requests to hear Anderson's testimony erroneously made without consulting counsel, it is particularly troubling because the trial court allowed the jury to hear a victim's testimony twice. In Franklin, the court explained that the risk of sending an audiotape and tape recorder to the jury room was that it would overemphasize the tape at the expense of testimony from the witness stand. 74 Wis. 2d at 724. Here, the jury was granted the opportunity to hear and view one victim's taped interview. After the jury viewed the videotape, it requested that Anderson's testimony be read to it. This request came after extensive deliberation. The second request attempted to explain why the jurors wanted Anderson's testimony read. However, the trial court still did not permit Anderson's testimony to be read to the jury, and it made this decision without any consultation with counsel.

¶ 42. Given the trial court's decision to allow the jury to hear one victim's testimony again, it faced an especially important decision when the jury then asked to hear Anderson's version of events again. "When, during its deliberations, a jury poses a question regarding testimony that has been presented, the jury has a right to have that testimony read to it, subject to the discretion of the trial judge to limit the reading." Kohlhoff, 85 Wis. 2d at 159. The trial court was faced with a matter of significance to the outcome of the deliberations, and was empowered to exercise its discretion. However, discretion in such a circumstance cannot fairly be exercised ex parte. Where the trial court's discretion to limit the reading of testimony to the jury, or even to summarize the requested testimony for the jury, has been upheld, it has always been after the trial court gave both counsel the opportunity to be heard. See id. at 159-61 (no erroneous exercise of discretion where both counsel and defendant participated in a conference in chambers prior to court reading back testimony); Jones v. State, 70 Wis. 2d 41, 57, 233 N.W.2d 430 (1975) (jury in criminal case has the right to have testimony read to it by the reporter, although extent of the reading is within discretion of trial court). This is not a ministerial matter, such as a request for lunch or coffee. The jury made a legitimate request to hear certain testimony again, and the trial court had an obligation to both attempt to give counsel and Anderson an opportunity to be heard, and to provide the jury with the testimony, "subject to the discretion of the trial judge to limit the reading." See Kohlhoff, 85 Wis. 2d at 159. The trial court did not, under the teachings of Kohlhoff, have the right to completely deny the request. However, that is the effect of the trial court's actions here.

¶ 43. In response to Anderson's postconviction motion, the trial court spoke of the need to conserve the reporter's time, and the length of Anderson's testimony as justification for refusing to permit the entire testimony to be read. However, Anderson's testimony was contained in a mere twenty-five double-spaced pages. Although it had not been transcribed at the time of the request, it was evident that Anderson was the last of six witnesses to testify during one morning of trial. While the challenges of calendar management, with which this court certainly sympathizes, are well known to both the court and the bar, this was not particularly lengthy testimony. The fact that the jury was unable to either identify specific parts of Anderson's testimony it wished to hear, or to explain more specifically to the trial court what subjects it found confusing, paints an eloquent picture of the jury's strongly felt need to simply hear the testimony again. The refusal to permit that reading in the circumstances where the jury was already allowed to view a videotape of testimony adverse to Anderson was, in my opinion, an erroneous exercise of discretion.

¶ 44. The Majority concedes that the trial court's decision to communicate with the jury without consulting the parties was erroneous. The Majority does not discuss this in terms of the constitutional right of Anderson to be present during all court proceedings. As the supreme court instructed in State v. Burton, 112 Wis. 2d 560, 570, 334 N.W.2d 263 (1983),

[C]ommunication between a judge and a jury, while the jury is deliberating, outside the courtroom and outside the presence of the defendant and defense counsel constitutes constitutional error, if the defendant has not waived the constitutional right to be present. The court must consider whether the constitutional error is harmless beyond a reasonable doubt.

¶ 45. Instead, the Majority implies that Anderson (not his counsel) knowingly waived a constitutionally protected right because his counsel failed to object to the trial court's actions when counsel learned of them long after the fact, and after the jury had reached its verdict. The "waiver" is then analyzed in the context of ineffective assistance of counsel, as to which the Majority concludes that there was no showing that Anderson was prejudiced. I cannot agree.

¶ 46. There is nothing in the record to suggest that Anderson ever had an opportunity to discuss the trial court's action with his counsel before the verdict was read. There is no evidence that the constitutional right to be present at all stages of the trial was ever knowingly and voluntarily waived by Anderson. There was no court colloquy with Anderson on the subject of his right to be present, nor was there any affirmative representation by his counsel that the right had been discussed and was intentionally being waived. Because the right to be present is of a constitutional magnitude, I do not understand it to be a right that can be waived by an agent (counsel) without a showing by the State that the waiver, or the delegation of the right to make the waiver, was knowingly and voluntarily made by Anderson.

¶ 47. Finally, the Majority concludes that there was so much evidence against Anderson that he was not prejudiced by the trial court's actions. I disagree with that conclusion. As explained above, this jury twice indicated a strong desire to hear Anderson's testimony again — this request should have been carefully considered and, in my opinion, granted. It is not reasonable to conclude that "the error complained of did not contribute to the verdict obtained." See State v. Hale, 2005 WI 7, ¶ 60, 277 Wis. 2d 593, 691 N.W.2d 637 (citation omitted). Because we cannot know what brought about the jury's ultimate decision, but because we do know that it was twice denied testimony it considered important — testimony that was favorable to Anderson —Anderson is entitled to a new trial.

¶ 48. For all the foregoing reasons, I respectfully dissent from the parts of the Majority opinion involving the trial court's contact with the jury outside the presence of Anderson and counsel.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

        State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

       We are disturbed by the trial court's violation of longstanding precedent forbidding the trial court from communicating with the jury without input from the parties and their counsel. We urge trial courts to either obtain a waiver from the defendants of their right to be present during any communications with the jury or to make prior arrangements with the attorneys as to where they can be located. We do not understand why the trial court elected not to confer with Anderson and the attorneys concerning the jury's requests. Given today's world of text messaging and the ubiquitous cell phone, this requirement should not pose a significant problem.

       Had his attorney objected, we would then determine if the error was harmless. When such a communication occurs, the supreme court held in State v. Burton, 112 Wis. 2d 560, 334 N.W.2d 263 (1983):
      [Clommunication between a judge and a jury, while the jury is deliberating, outside the courtroom and outside the presence of the defendant and defense counsel constitutes constitutional error, if the defendant has not waived the constitutional right to be present. The court must consider whether the constitutional error is harmless beyond a reasonable doubt.

        Id. at 570 (citation omitted). Later, in State v. Roller, 2001 WI App 253, ¶ 62, 248 Wis. 2d 259, 635 N.W.2d 838, this court explained that when an improper communication has occurred, "[w]e examine the circumstances and substance of the communication in light of the entire trial to determine whether the error was harmless. An error is harmless if there is no reasonable possibility that the error affected the outcome of the trial." Id. (citations omitted). The error must be harmless beyond a reasonable doubt. See State v. Hale, 2005 WI 7, ¶ 60, 277 Wis. 2d 593, 691 N.W.2d 637. After our review of the record, we conclude that because there is no reasonable possibility that the error affected the outcome of the case, the error was harmless.

       We observe that, contrary to Anderson's claim, the trial court did not refuse to read back his testimony. Rather, the judge asked the jurors to identify which parts they wished reread. The jurors apparently chose to rely on their collective memories.

       Citing Franklin v. State, 74 Wis. 2d 717, 724, 247 N.W.2d 721 (1976), the dissent stresses that because the jury was permitted to view the victim's videotape a second time in the jury room, but was not permitted to have Anderson's testimony reread, this overemphasized testimony adverse to Anderson. Dissent, ¶¶ 1-6. This does not, however, change the fact that the State's case was strong, and Anderson's defense was weak, which convinces us that Anderson did not suffer any prejudice.

       In fact, Anderson's attorney did object to the State calling the expert witness on the grounds that no expert was needed. His objection was overruled.

       Additionally, Anderson claims that his attorney's failure to object when the trial court advised the parties that it had answered the jury's questions without any input from Anderson or his attorney constituted ineffective assistance of counsel. Inasmuch as we have concluded that the trial court's error in doing so was harmless, we decline to further address this argument.

       Anderson also argues that because it was not introduced as a "prior inconsistent statement" under Wis. Stat. § 908.01(4)(a)2., his attorney was ineffective. Since a specific statutory provision lays out the introduction of the videotape, we conclude the general rule set forth in § 908.01(4)(a)2. does not apply.

       Apparently these notes were left in the jury room and removed by people cleaning the room for another jury's use.


author: NETTESHEIM, J.

text:
    Tamara G. Hernandez, p/k/a Tamara G. Allen, n/k/a Tamara G. Storm, Petitioner-Respondent, v. Randolph S. Allen, Respondent-Appellant, Kenosha County Child Support Agency, Respondent.
    Court of Appeals

      No. 2004AP2696.

      Submitted on briefs August 24, 2005.

      —Decided October 12, 2005.

    2005 WI App 247
    (Also reported in 707 N.W.2d 557.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Randolph S. Allen, pro se.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Brenda J. Dahl, of Kenosha.

      On behalf of the respondent, Kenosha County Child Support Agency, a brief was filed by Lori L. Redlin, and Jeffrey J. Witthun, of Kenosha.
    Before Snyder, EJ., Brown and Nettesheim, JJ.
   NETTESHEIM, J.

¶ 1. The issue raised in this case is one of first impression in Wisconsin: whether an order for adoption extinguishes the former parent's support arrearage. Randolph S. Allen appeals pro se from an order finding that his child support arrearage, accrued prior to the adoption of his biological minor child, was not extinguished by the adoption. Randolph relies onWis. Stat. § 48.92(2) (2003-04), which provides that "legal consequences of the relationship" cease to exist as a result of the adoption. We disagree with Randolph. We hold that subsec. (2), when read in the context of § 48.92 as a whole, contemplates the alteration in rights and duties of the adoptive and natural parents from the time of the adoption forward and does not nullify prior support arrearage obligations. We affirm.

BACKGROUND

¶ 2. When Randolph and his then spouse Tamara were divorced in 1981, Randolph was ordered to pay $20 per week in child support for the minor daughter born during the marriage. Within a year of the divorce, Randolph was held in contempt for failure to pay support and soon after was ordered to serve twenty days in the county jail. Another series of contempt motions were filed, dismissed and refiled over the next few years, resulting in Randolph serving a second jail sentence for noncompliance with his child support and job search obligations.

¶ 3. Tamara remarried. In November 1989, Randolph consented to the termination of his parental rights (TPR) so the child's stepfather could adopt her. By the time of the TPR, Randolph owed over $8400 in child support arrearages. In February 1990, Randolph was ordered to begin repaying the arrearage by a $10 per week wage assignment. A July 1992 order confirmed that Randolph's child support obligation terminated as of the date of the TPR but stated that his obligation for "all arrearage for child support. . . continue." A month later, Randolph initiated an Order to Show Cause, contending that the payment order should be vacated because under Wis. Stat. § 48.92(2) the TPR and adoption extinguished his liability for any arrear-age. The motion was denied because, in the words of the court commissioner, "[Ajdoption does not affect arrear-age [accruing] prior to adoption."

¶ 4. The Kenosha County Child Support Agency continued to attempt to collect the arrearage through a number of contempt proceedings and seek-work orders, and Randolph, proceeding pro se, continued to protest the obligation. Following a child support review hearing held on November 23,1998, Randolph was ordered to continue making payments on the arrearage. In May 2003, Randolph filed a motion seeking a finding that "all support obligations ended with the [TPR]." The court commissioner denied the motion on the grounds that "[a] TPR does not eliminate past child support arrears . . . [and] these issues are res judicata per court order of 11-23-98." As with the prior court commissioner rulings in this case, Randolph did not seek de novo circuit court review of this ruling. See Wis. Stat. § 757.69(8).

¶ 5. Thereafter, Randolph sporadically paid toward the arrearage through wage assignments and tax intercepts. Nevertheless, by January 2004 the arrears still were approximately $10,000, and in February 2004 the County filed an order to show cause why Randolph should not be held in contempt. Apparently anticipating that the County would rely, in part, on the court commissioner's prior res judicata ruling, Randolph responded that the matter was not barred by res judicata because he was now relying on the adoption statute, not the TPR statute. The court commissioner rejected Randolph's efforts to have the collection efforts against him halted.

¶ 6. This time Randolph sought de novo review before the circuit court. He argued there, as he does here on appeal, that child support arrearage is a legal consequence of a parent-child relationship and that Wis. Stat. § 48.92(2) makes plain that all legal consequences cease to exist upon adoption. The circuit court conceded that it could see Randolph's argument, but it ultimately was not persuaded. The court held that Randolph's child support obligation survived the severance of the parent-child relationship at the TPR proceeding and that the subsequent adoption did not eliminate that obligation. Since Randolph recently had begun making payments, the court did not find him in contempt but ordered him to continue paying.

¶ 7. Randolph appeals. The County and Tamara have filed separate respondent's briefs.

DISCUSSION

¶ 8. The sole issue is whether an order of adoption under Wis. Stat. § 48.92 extinguishes a preexisting child support arrearage. On a threshold basis, the County and Tamara raise two procedural arguments. First, they exhort us to disregard Randolph's brief in its entirety for its failure to comply with proper briefing rules. Randolph's pro se brief indeed is lacking in several regards: the fact section bears no record citations, the argument is largely unsupported by legal authority, and it is without the required appendix. See Wis. Stat. rule 809.19(1) and (2). Nevertheless, we opt not to dismiss the appeal outright for these shortcomings, although we could. See Wis. Stat. rule 809.83(2).

¶ 9. Second, both Tamara and the County contend that Randolph's claim is barred by the law of claim preclusion since Randolph raised this same challenge as early as 1992. See Max T. v. Carol O., 174 Wis. 2d 352, 355, 497 N.W.2d 740 (Ct. App. 1993). The doctrine of claim preclusion is designed to balance the need to bring litigation to conclusion, against each party's right to have a judicial determination made as to his or her contentions. Shanee Y. v. Ronnie J., 2004 WI App 58, ¶ 18, 271 Wis. 2d 242, 677 N.W.2d 684. Randolph responds that his claim is not barred because his argument under the adoption statute was never raised until these proceedings in this case.

¶ 10. We choose not to decide this case on claim preclusion grounds. In Wisconsin, the law of claim preclusion is not an ironclad rule to be doggedly applied, even if literally appropriate, without regard to countervailing considerations. Patzer v. Board of Regents, 763 F.2d 851, 856 (7th Cir. 1985). "Claim preclusion may be disregarded in appropriate circumstances when the policies favoring preclusion of a second action are trumped by other significant policies." Sopha v. Owens-Corning Fiberglas Corp., 230 Wis. 2d 212, 236, 601 N.W.2d 627 (1999). Just as this court generally does not consider moot issues, it is within our authority to consider them when, for example, the issue has great public importance, the decision is needed to guide the circuit courts, or where the issue is likely of repetition, yet evades review. State ex rel. Olson v. Litscher, 2000 WI App 61, ¶ 3, 233 Wis. 2d 685, 608 N.W.2d 425.

¶ 11. Here, the court commissioner acknowledged that it sees "a lot of cases like [Randolph's]," and the circuit court observed that it was surprised that "there aren't more reported cases" on this issue. Therefore, assuming that claim preclusion applies, we nonetheless choose to address Randolph's argument on the merits. We do so: (1) because the issue is one of first impression, (2) because it is likely to recur, (3) because of the nature and importance of the rights and obligations implicated, and (4) although to a lesser degree, because of Randolph's pro se status.

¶ 12. Randolph frames the issue as whether, under Wis. Stat. § 48.92(2), child support arrearages are a legal consequence of the parent-child relationship such that the statute "obliterates his arrears." In response, Tamara first asserts that Randolph's reading of the statute unlawfully impairs the agreement that she and Randolph made on the question of child support at the time of their divorce. Tamara directs us to nothing, however, indicating that she raised this issue below or to any trial court ruling on this issue. Given its turn, the County does not address this matter in its separate response brief. We have searched the record. We discovered only a passing remark by the court that "the Federal Constitution provides that nothing in any. . . federal or state law can impair the obligation of a contract," with no follow-up by any party, Tamara in particular. Accordingly, we decline Tamara's invitation to entertain the impairment of contracts question.

¶ 13. Therefore, we move to the merits. Randolph's argument focuses on Wis. Stat. § 48.92. We recite the relevant provisions.

Effect of adoption. (1) After the order of adoption is entered the relation of parent and child and all the rights, duties and other legal consequences of the natural relation of child and parent thereafter exists between the adopted person and the adoptive parents.
(2) After the order of adoption is entered the relationship of parent and child between the adopted person and the adopted person's birth parents ... shall be completely altered and all the rights, duties and other legal consequences of the relationship shall cease to exist.

¶ 14. As noted, Randolph relies on Wis. Stat. § 48.92(2). He complains that the trial court ignored this provision, instead confining its discussion to Wis. Stat. § 48.40(2), "the TPR statute," which provides that the termination of parental rights permanently severs all "rights, powers, privileges, immunities, duties and obligations existing between parent and child."

¶ 15. We summarily reject Randolph's argument that the trial court ignored his argument under the adoption statute. The court expressly addressed this argument and rejected it, summarizing with approval the holding from a foreign case in the following words: "[T]he adoption had no effect on the previously-accrued arrearages."

¶ 16. Moving to the balance of Randolph's argument, he acknowledges that the wording of the TPR statute, Wis. Stat. § 48.40(2), does not erase his support arrears obligation. Instead, his argument now focuses on the different language of the adoption statute, Wis. Stat. § 48.92(2). He argues that the language "all the. . . legal consequences of the relationship shall cease to exist" unambiguously commands the cancellation of his child support arrearage. He contends that the creation of related but not identically worded statutes demonstrates a legislative intent to treat the effect of an adoption differently than that of a TPR because of, in his view, the dissimilar ways that the "vast majority" of TPRs come about, as compared to adoptions.

¶ 17. Randolph's argument requires us to construe the relevant portions of Wis. Stat. § 48.92 and apply them to the undisputed facts of this case. That exercise presents a question of law that we review de novo. Schauer v. Baker, 2004 WI App 41, ¶ 10, 270 Wis. 2d 714, 678 N.W.2d 258. When interpreting statutes, our goal is to determine and give effect to the meaning of the statute. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. We look first to the language of the statute because we "assume that the legislature's intent is expressed in the statutory language." Id. If the language clearly and unambiguously sets forth the legislative intent, we apply that language to the facts at hand. Schauer, 270 Wis. 2d 714, ¶ 10. And because context is important to meaning, we interpret the statutory language not in isolation, but as part of a whole. Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 18. Randolph submits that Wis. Stat. § 48.92(2) clearly sustains his position. He reasons as follows: child support arrears are a legal consequence of the parent-child relationship; § 48.92(2) provides that after the order of adoption "all the ... legal consequences of the relationship shall cease to exist"; therefore, his support obligation was extinguished upon the order of adoption. Tamara and the County also contend the statute is clear. They, however, assert that when read in its entirety as part of a cohesive whole, the statute addresses the cessation of legal consequences from the time of the adoption order and "thereafter." See § 48.92(1).

¶ 19. Although the parties disagree as to its meaning, none of them argue that the statute is ambiguous. We disagree. The test of ambiguity is whether the statutory language reasonably gives rise to different meanings. Kalal, 271 Wis. 2d 633, ¶ 47. Despite the parties' shared belief that the statute is clear, we consider the statute to be ambiguous because the wording of the statute reasonably allows for the parties' differing interpretations.

¶ 20. That said, we reject Randolph's interpretation. The Achilles' heel of Randolph's argument is that it looks to Wis. Stat. § 48.92(2) in isolation, thus ignoring significant and informative language in § 48.92(1). As a result, Randolph arrives at an interpretation we think contrary to the overarching purpose of § 48.92 viewed as a whole and of Wis. Stat. ch. 48, as expressed in Wis. Stat. § 48.01.

¶ 21. Wisconsin Stat. § 48.92 is entitled "Effect of adoption." Subsection (1) establishes a "relation of parent and child" between the adoptive parent and the adoptee; subsec. (2) "completely alter[s]" the relationship between the adoptee and his or her birth parent(s). The change takes effect "[a]fter the order of adoption is entered" and, as subsec. (1) plainly states, "thereafter exists." The word "thereafter" casts the entire statute in a forward-looking light, marking the point in time at which, from then on, there exists a new parent-child relation and there ceases to exist the prior parent-child relationship. "Thereafter" plainly contemplates a going forward, not a reaching back as Randolph urges. We may not either disregard the word's clear implication or limit it to subsec. (1) because we must give reasonable effect to every word of a statute and read statutory language in context, as part of a whole. See Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 22. Randolph's argument fails for still another reason. Wisconsin Stat. § 48.92(2) addresses the effect of adoption on a birth parent's relationship with his or her biological child, not with the former spouse. As the State and the circuit court observed at the de novo hearing, while child support is ordered to benefit the child, it actually is an obligation owed to the recipient parent, here Tamara. The original child support order, in fact, directs Randolph to pay Tamara.

¶ 23. Simply stated, Randolph's reading of Wis. Stat. § 48.92(2) cannot be right. The literal construction he advocates weighs in the interest of a nonpaying parent and runs afoul of the express purpose of Wis. Stat. ch. 48, which is to ensure that "the best interests of the child ... shall always be of paramount consideration." Wis. Stat. § 48.01(1). Statutory sections found in the same chapter must be read in pari materia and harmonized so as to implement the chapter's goals and policy. See Georgina G. v. Terry M., 184 Wis. 2d 492, 512, 516 N.W.2d 678 (1994). We reject interpretations which lead to an unreasonable result not reflective of the legislature's intent, see State v. Jennings, 2003 WI 10, ¶ 11, 259 Wis. 2d 523, 657 N.W.2d 393, because we must favor the purpose of the whole act over a construction that would defeat the act's manifest object. See Scott A. v. Garth J., 221 Wis. 2d 781, 786, 586 N.W.2d 21 (Ct. App. 1998).

¶ 24. With these principles in mind, we conclude that Randolph's focus on only subsec. (2) of Wis. Stat. § 48.92 and the term "legal consequences" is too restrictive. Instead, we hold that the prospective view of the statute does not permit the extinguishing of Randolph's child support obligations that accrued before his parental rights were terminated.

¶ 25. Our reading of Wis. Stat. § 48.92 finds explicit support elsewhere. American Jurisprudence (Second), for example, states the general rule to be that the adoption of a minor child terminates all legal relations between the minor and his or her natural parents, so that thereafter the natural parents are under no obligation to support the adopted child but are relieved from legal responsibility for it. 2 Am. Jur. 2d Adoption § 164. This express admonition follows:

• Caution: Signing a consent to adoption will not, by itself, relieve a parent of his or her child support obligations. Moreover, a decree of adoption does not operate in a retroactive manner to relieve the payor spouse of all past-due child support arrearages not reduced to judgment prior to the adoption.

Id. (footnotes omitted; emphasis added).

¶ 26. We also recognize a Kansas Supreme Court decision which the circuit court referenced at the de novo hearing. In Michels v. Weingartner, 864 P.2d 1189 (Kan. 1993), the court held that past due child support payments are not extinguished by an adoption decree. Id. at 1193. There, the birth parents divorced and the mother obtained custody of their minor son. Id. at 1190. She remarried nine years later, and her new husband later petitioned to adopt the child without obtaining the birth father's consent based on the birth father's failure to either pay child support or keep in contact with the boy. Id. at 1190-91. The supreme court affirmed the lower court's rulings that child support judgments accruing preadoption were enforceable, holding that child support payments vest as they accrue because they become final judgments on the dates they become due and unpaid. Id. at 1193.

CONCLUSION

¶ 27. We hold that, when read as part of a cohesive whole, Wis. Stat. § 48.92(2) does not relieve a birth parent of the obligation to pay child support arrearages for which he or she became liable before such parent's parental rights were terminated. The statute contemplates a point in time at which, from then on, the legal status of the adoptive parent(s), birth parent(s) and adopted child are completely altered. It does not offer relief for a child support obligation incurred prior to the termination of the obligor parent's parental rights.

By the Court. — Order affirmed.

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

       Thereafter, with the exception of the circuit court proceeding which inspired this appeal, all of the proceedings we describe in this opinion occurred before a court commissioner.

       Neither the parties' briefs nor the appellate record reveals the date of the adoption.

       Randolph maintained that he was not proceeding pro se by choice, and in fact attempted at several junctures to obtain appointed counsel. Each time he was denied as being financially ineligible.

       The County was involved because of AFDC payments made to Tamara. In February 1998, Randolph satisfied the arrearage relating to the AFDC payment, leaving the arrearage owed to Tamara as the remaining issue.

       This order also advised Randolph that he should seek a waiver from Tamara for this arrearage and accumulated interest. However, Tamara refused.

       Randolph asserts that the first time he learned he still would be responsible for arrearage post-TPR was via an order signed by Kenosha County Circuit Court Judge Barbara Kluka that he received over two years after the TPR occurred, by which time it was too late to appeal. The record confirms that the TPR was on November 9,1989 and the order was not signed until July 31, 1992. The record also reflects, however, that Randolph appeared pro se at a February 1990 hearing, which resulted in a wage assignment toward arrears.

       Actually, the respondents' argument invokes the phrase "res judicata," not "claim preclusion." We use the phrase "claim preclusion" since that term now replaces "res judicata.” See Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995).

       Tamara also argues that Randolph's interpretation of the statute amounts to an ex post facto law. Here again, it does not appear that Tamara raised this issue in the trial court, and the trial court's rulings do not address any such argument. Therefore, we also decline to address this argument.

       Randolph based his May 29, 1993 motion seeking to end his support obligation on Wis. Stat. §§ 48.40 and 48.43(2). Section 48.43(2) provides: "An order terminating parental rights permanently severs all legal rights and duties between the parent and the child."

       We may consider persuasive authority from other jurisdictions because this is an issue of first impression. See Strozinsky v. School Dist. of Brown Deer, 2000 WI 97, ¶ 67, 237 Wis. 2d 19, 614 N.W.2d 443.