author: DYKMAN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Bradley J. Vorburger, Defendant-Appellant.
    Court of Appeals

      No. 00-0971-CR.

      Submitted on briefs December 13, 2000.

    Decided January 25, 2001.

    2001 WI App 43
    (Also reported in 624 N.W.2d 398.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David D. Cook of Law Office of David D. Cook, Monroe.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Shunette T. Campbell, assistant attorney general.
    Before Dykman, P.J., Vergerónt and Deininger, JJ.

      Petition to review granted.

   DYKMAN, P.J.

¶ 1. Bradley J. Vorburger appeals from a judgment convicting him of possession of cocaine with intent to deliver. The trial court denied his motion to suppress evidence found after he consented to a search of his car, and after Amerie Becker, his codefendant at trial, consented to a search of their apartment. Vorburger argues that evidence police obtained pursuant to the consent searches should have been suppressed because he and Becker gave consent under conditions constituting an arrest where the police lacked probable cause justifying that arrest. The State argues that the consents were valid because Vorburger and Becker were not under arrest but subject only to a temporary investigative detention. The State also argues that even if Vorburger and Becker were subject to an unlawful arrest, their consents were nevertheless sufficiently attenuated from the arrest. We conclude that, given all the facts, Vorburger and Becker were subject to an unlawful arrest. We further conclude that their consent to search was not attenuated from the unlawful arrest. We therefore reverse.

I. Background

¶ 2. On July 2, 1997, an employee at a Madison area motel entered one of the rooms to determine whether it had been cleaned. He noticed a strong smell that made him suspicious and saw a bag containing what he thought was marijuana. He took a sample from the bag to the front desk. He or another motel employee called the police. Officers were dispatched to the motel and after looking at motel records, determined that the room was rented by Cory Cramer. The records also showed a vehicle license plate number associated with the motel room. Police checked on the plate number and found the vehicle was registered to Peter Kokoros. The police initiated procedures to obtain a search warrant.

¶ 3. Lieutenant Randall Gaber arrived at the motel, and learned that another vehicle was associated with Cramer. About six armed police officers, including Gaber, entered another motel room to stake out the one rented to Cramer. At approximately 9:20 p.m., the police saw Vorburger, Becker, and Cramer walking down the motel hallway toward Cramer's room. Cramer was holding the key.

¶ 4. The police exited the stake-out room, announcing their presence in loud voices, and directed Vorburger, Becker, and Cramer to stay where they were. Lieutenant Gaber told Cramer to put his hands on the wall, and Cramer was eventually handcuffed. Officer Linda Kosovac told Vorburger to put his hands behind his back and handcuffed him with the assistance of a deputy sheriff. Another officer handcuffed Becker's hands behind her back. The police told Vorburger, Cramer, and Becker that they were not under arrest but were being detained for further investigation. Between five and eight officers were present in the motel hallway when Vorburger, Becker, and Cramer were first detained, and a total of about eleven officers were working on the investigation.

¶ 5. At about 9:40, Becker indicated that she had to use the restroom. When Officer Kosovac said she would have to accompany her, Becker changed her mind. Becker testified that she had just undergone a D&C, was experiencing post-surgical bleeding, and did not want someone else lowering her pants for her.

¶ 6. Detective Alix Olson arrived at the motel with the search warrant at approximately 10:05. She testified that she observed Cramer, Vorburger, and Becker, still detained in the hallway. Olson took Cramer into a nearby room, showed him the search warrant, and read it to him. At-approximately 10:15, several officers, including Olson, entered Cramer's room to execute the warrant. Olson detected an overpowering marijuana smell in the room, which contained a large amount of marijuana and a digital scale.

¶ 7. Shortly after 10:30, Officer Kosovac took Becker into another room and removed her handcuffs. The door to the room was left ajar about two or three inches. After Becker used the restroom with the door to it open, Kosovac read Becker Miranda warnings. Kosovac explained to Becker that the police were conducting a drug investigation and began asking her questions. Becker stated that she leased an apartment, where she lived with Vorburger. Kosovac asked whether Becker had any controlled substances, and Becker said that she did not. Becker told Kosovac she could search her purse, and emptied it out. Becker then explained that all she had was a small amount of marijuana at her apartment. Kosovac told Becker that she wanted to confiscate the marijuana from Becker's apartment, and asked her if the police could search it. Becker consented to the search.

¶ 8. Meanwhile, the police detained Vorburger in the hallway. Detective Olson read Vorburger Miranda warnings at 11:00, and then asked him some questions. Olson did not indicate to Vorburger whether he was free to leave. At 11:06, she asked him if the police could search his car, and he said they could. Vorburger's car was a third vehicle on the scene in addition to Cramer's and Kokoro's vehicles. When police searched Vorburger's car, they found a "blunt" and another small amount of marijuana. Gaber testified that Vorburger remained handcuffed until about 11:45 or midnight.

¶ 9. Kosovac and two other officers went to Becker's apartment and searched it with Becker present. They found marijuana, powder cocaine, hallucinogenic mushrooms, more blunts, a postal scale, and about $2,000 in cash. Becker was the sole leaseholder of the apartment, but Vorburger had been living with her since the time she moved in.

¶ 10. Based in part on the contraband from Vorburger's car and Becker's apartment, the State charged Vorburger with several crimes. Vorburger moved to suppress the evidence obtained against him, including the drugs obtained from the search of his vehicle and Becker's apartment. The trial court denied the motion. Vorburger pleaded no contest to possession of cocaine with intent to deliver, party to a crime, in violation of WlS. STAT. §§ 961.41(lm)(cm)2 and 939.05 (1995-96). The trial court entered a judgment of conviction, and Vorburger appeals.

II. Analysis

A. Unlawful Arrest

¶ 11. Both an arrest and a Terry investigative stop are seizures under the Fourth Amendment. Laasch v. State, 84 Wis. 2d 587, 595, 267 N.W.2d 278 (1978) (arrest); State v. Taylor, 226 Wis. 2d 490, 494, 595 N.W.2d 56 (Ct. App. 1999) (stop). Police may stop an individual and conduct a limited investigation without probable cause to arrest. Taylor, 226 Wis. 2d at 494. However, police may not seek to verify their suspicions by means that approach the conditions of arrest. Florida v. Royer, 460 U.S. 491, 499 (1983); State v. Quartana, 213 Wis. 2d 440, 448, 570 N.W.2d 618 (Ct. App. 1997). "[E]very seizure having the essential attributes of a formal arrest[ ] is unreasonable unless it is supported by probable cause." Michigan v. Summers, 452 U.S. 692, 700 (1981).

¶ 12. Vorburger argues that the police exceeded the limited scope of a Terry stop, and instead arrested him and Becker. He further contends that, because the police lacked probable cause, the arrest was unlawful. Therefore, he asserts, both his consent to the car search and Becker's consent to the apartment search were fruits of unlawful arrests, and the evidence the police discovered pursuant to the consent searches should have been suppressed. We agree.

¶ 13. We first address the question of whether Vorburger and Becker were subject to an arrest at the motel. The question of whether a seizure has occurred based on a given set of facts is a question of law that we review de novo. State v. Garcia, 195 Wis. 2d 68, 73, 535 N.W.2d 124 (Ct. App. 1995). However, we uphold the trial court's findings of fact unless they are clearly erroneous. State v. Wilson, 229 Wis. 2d 256, 262, 600 N.W.2d 14 (Ct. App. 1999).

¶ 14. We determine the moment of arrest for Fourth Amendment purposes using an objective test. State v. Swanson, 164 Wis. 2d 437, 446, 475 N.W.2d 148 (1991). We ask whether a reasonable person in the defendant's position would have considered himself or herself to be in custody given the degree of restraint. Id. at 446-47. The totality of the circumstances, including what the police officers communicate by their words or actions, controls the outcome under the test. Id. at 447.

¶ 15. In Royer, the United States Supreme Court addressed circumstances that it concluded transformed a Terry stop into an arrest. Royer, 460 U.S. at 501-03. The defendant, Royer, was stopped in an airport after two narcotics detectives determined that he fit a drug courier profile. Id. at 493-94. The detectives held his airline ticket, retrieved his luggage, and took him to a small room about forty feet away from the initial stop. Id. at 494. After fifteen minutes of questioning in the room, a consent search of his luggage revealed marijuana. Id. at 494-95. However, the Court concluded that Royer's consent was invalid because he was subject to an illegal detention and that "[a]s a practical matter, [he] was under arrest." Id. at 503, 507-08.

¶ 16. It is useful to contrast Royer with Swanson, where our supreme court determined that a person is not subject to an arrest simply because he or she is required to perform field sobriety tests. Swanson, 164 Wis. 2d at 448. Noting that the defendant was not given Miranda warnings nor handcuffed, the supreme court in Swanson explained that the clear implication of a police request to perform field sobriety tests was that if the suspect passed them, she or he would then be free to leave. Id. We echoed this analysis in Quartana, concluding that even where police transported a defendant back to an accident scene before administering the field sobriety tests, he was not subject to an arrest. Quartana, 213 Wis. 2d at 449-50. We rested our conclusion on a determination that the defendant "had to realize that if he passed the field sobriety test, any restraint of his liberty would be lifted and he would be free to go." Id. at 451.

¶ 17. As soon as Vorburger and Becker approached Cramer's room, several police officers exited a neighboring room. One of the officers testified that the police told everyone to "stay where they were." While neither Vorburger nor Becker were transported off the motel grounds, they were eventually separated. Becker's handcuffs were not removed until after she was confined to one of the motel rooms with Officer Kosovac, and she was not permitted to use a restroom in privacy. Although Vorburger was not removed to a separate room, he remained handcuffed in the hallway for over two hours. While the record does not show that the police used force against Vorburger or Becker beyond that necessary to detain and handcuff them, two officers initially apprehended and handcuffed Vorburger, and the overall ratio of police officers to suspects was approximately two or three to one. Although the police never told Vorburger and Becker they were under arrest, the police told them that they were being detained.

¶ 18. Both Vorburger and Becker were read Miranda warnings. Becker was not handcuffed when she was given Miranda warnings and questioned; however, she was in a closed-off room. In light of Royer, it is difficult to conclude anything other than that Becker was confined and interrogated. " [Detention for custodial interrogation — regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest." Dunaway v. New York, 442 U.S. 200, 216 (1979). While Vorburger was not confined in a closed room, he remained in handcuffs after the police read him the Miranda warnings and while they questioned him. The State is correct that police use of handcuffs does not by itself necessarily transform a stop into an arrest. See Swanson, 164 Wis. 2d at 448. However, this case involves many circumstances that are associated with a formal arrest in addition to handcuffing. Moreover, unlike the defendants in Swanson and Quartana, Vorburger and Becker had little if any indication of how long they would be detained or what they might have to do before they were free to go. We conclude that, considering all the circumstances, a reasonable person in either Vorburger's or Becker's position would have considered himself or herself in custody.

¶ 19. Because we have determined that Vorburger and Becker were subject to an arrest at the motel, we next address whether the police had probable cause to arrest Vorburger and Becker before they searched Vorburger's car and Becker's apartment. The State does not argue the police had probable cause, instead maintaining that the length and nature of the detention did not amount to an arrest. Because the State has not briefed this issue on appeal, we could consider it abandoned. See State v. Ledger, 175 Wis. 2d 116, 135, 499 N.W.2d 198 (Ct. App. 1993). However, we briefly address the issue of probable cause since our decision depends in part on whether the police had probable cause to arrest Vorburger and Becker. Whether a given set of facts gives rise to probable cause is a question of law that we review de novo. State v. Watson, 227 Wis. 2d 167, 196, 595 N.W.2d 403 (1999).

¶ 20. Lieutenant Gaber testified that he had no information linking Vorburger to Cramer's room. Gaber also testified that he had no information about Vorburger's car, which was not associated with Cramer's room. Detective Olson testified that the police found nothing in Cramer's room linking Vorburger to the room or its contents. Olson further testified that there was no indication Becker had ever been in the room. When Vorburger, Becker, and Cramer were walking toward the room, Cramer was the one holding the key.

¶ 21. The State argues that once the police executed the search warrant and found marijuana in Cramer's room, they possessed a reasonable basis to continue to hold Vorburger and Becker. We disagree. The police already knew there was marijuana in the room before executing the search warrant because the motel employee told them so and provided them with a sample. That is how the police obtained a search warrant in the first place. Rather than further incriminate Vorburger or Becker, the search of Cramer's room served to dispel suspicion that either Vorburger or Becker were more closely linked to the room and its contents.

¶ 22. Because no evidence linked Vorburger or Becker to the marijuana in the room other than their presence outside the room with Cramer, we conclude that the police did not have probable cause to arrest Vorburger or Becker until after receiving their consent to search and discovering the contraband in Vorburger's car and Becker's apartment. Because we have concluded that Vorburger and Becker were already subject to an arrest before that time, that arrest was unlawful.

B. Attenuation

¶ 23. Not all evidence is "fruit of the poisonous tree" because it came to light after illegal police actions. State v. Simmons, 220 Wis. 2d 775, 780, 585 N.W.2d 165 (Ct. App. 1998). The State argues that Vorburger's consent to the car search and Becker's consent to the apartment search were sufficiently attenuated from the unlawful arrest. The ultimate question is whether the evidence the State seeks to admit came about from the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Id. at 781; see also Wong Sun v. United States, 371 U.S. 471, 488 (1963).

¶ 24. Whether evidence should be suppressed because it was obtained pursuant to a Fourth Amendment violation is a question of constitutional fact. State v. Anderson, 165 Wis. 2d 441, 447, 477 N.W.2d 277 (1991). We independently review questions of constitutional fact. Id. In determining whether evidence is sufficiently attenuated from improper police conduct, we are required to consider (1) the temporal proximity of the official misconduct and the seizure of the evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the misconduct. State v. Richter, 2000 WI 58, ¶ 45, 235 Wis. 2d 524, 612 N.W.2d 29.

¶ 25. The police conduct here was not so severe as to preclude attenuation. However, the other two attenuation factors weigh heavily in favor of Vorburger.

¶ 26. The State relies primarily on State v. Tobias, 196 Wis. 2d 537, 553, 538 N.W.2d 843 (Ct. App. 1995), where we held that statements that the defendant, Tobias, made while in custody were sufficiently attenuated from his unlawful arrest. After Tobias was unlawfully arrested, the police lawfully obtained incriminating evidence from his apartment independent of the arrest. Id. at 545, 550. When the police informed Tobias of their discovery, he confessed. Id. at 550-51. We considered the discovery of the evidence and the police act of confronting Tobias with the evidence to be significant intervening circumstances. Id.

¶ 27. The State argues that the results of the search of Cramer's room were significant, asserting that the discovery of marijuana in the room provided an intervening circumstance sufficient to attenuate Vorburger's and Becker's consents from their unlawful arrest. However, as we have already explained, the police found nothing linking Vorburger or Becker to the marijuana in the room. Therefore, there were no intervening circumstances as there were in Tobias.

¶ 28. When we examine the temporal proximity factor, we also consider all the conditions at the time of consent. Richter, 2000 WI 58 at ¶ 46. We have already explained those circumstances in detail and need not repeat them, but we have taken them into account and conclude that they weigh against the State.

¶ 29. In Tobias, we analyzed the temporal proximity factor by comparing the time that the unlawful arrest commenced to the time that Tobias made his confession. Tobias, 196 Wis. 2d at 544-45, 549. However, we question whether that framework applies here where no intervening circumstances arose. In Tobias, we concluded there was sufficient attenuation "especially because the facts indicate the statements were obtained not by exploitation of the arrest, but because Tobias was confronted with untainted, incriminating evidence against him." Id. at 553. Because an unlawful arrest may be ongoing, there is arguably no temporal distance between an unlawful arrest and consent obtained from the individual during the course of that arrest, unless there are intervening circumstances or other developments leading to probable cause. Considering this and all the facts, we conclude that the temporal proximity factor weighs in favor of Vorburger as well, and that Vorburger's and Becker's consents were not attenuated from the unlawful arrest. On remand, the trial court is directed to grant Vorburger's motion to suppress.

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

      A "blunt" is a "cigar used to smoke marijuana by hollowing out the center and inserting the drug." State v. Hughes, 2000 WI 24, ¶ 8, 233 Wis. 2d 280, 607 N.W.2d 621.

       Vorburger also argues that the police coerced his and Becker's consent, while the State counters that the consent was voluntary. Because we conclude that Becker and Vorburger gave consént while subject to unlawful arrests, we need not reach the question of whether their consent was also coerced.

      Kokoros had been apprehended earlier at the motel, and two of the police officers involved in that evening's investigation were detaining him in their squad car when Vorburger, Becker, and Cramer arrived at the motel.

       The trial court did not make a probable cause determination, presumably because it concluded that Vorburger and Becker were subject only to a temporary detention rather than an arrest.


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    In re the Marriage of: Lori Long f/k/a Lori Ardestani, Petitioner-Appellant, v. Mohammad Ardestani, Respondent-Respondent.
    Court of Appeals

      No. 00-1429.

      Oral argument December 18, 2000.

    Decided January 25, 2001.

    2001 WI App 46
    (Also reported in 624 N.W.2d 405.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Lynn M. Rider of Czaj-kowski & Rider, S.C. of Prairie du Chien.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Michael B. Apfeld of God-frey & Kahn, S.C. of Milwaukee.
    A brief was filed by the guardian ad litem, Gregory S. Bonney oí Johns, Flaherty & Rice, S.C. of La Crosse.
    Before Vergeront, Roggensack and Deininger, JJ.
   VERGERONT, J.

¶ 1. Lori Long appeals a trial court order denying her motion to prohibit her former husband, Mohammad Ardestani, from traveling to Iran with their minor children to visit his family. She contends the trial court erroneously exercised its discretion when it refused to grant a continuance to permit a key witness to testify, erred by placing the burden on her to prove that it was likely that Ardestani would not return with the children, and erred by failing to consider the best interests of the children. She and the guardian ad litem ask this court to rule, as a matter of law, that, if a parent objects to the other parent taking their children to visit a country with which the United States does not have diplomatic relations and which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the parent may not take the children to that country to visit.

¶ 2. We conclude the trial court did not erroneously exercise its discretion in refusing to grant a continuance; properly placed the burden on Long, as the moving party, to show that it was not in the children's best interests to travel to Iran with their father to visit his family; and properly considered the children's best interests in ruling on the motion. We decline to adopt the proposed ruling of law because we conclude that the existing standard of the best interests of the child, applied by trial courts in the exercise of their discretion, already allows for full consideration of all relevant concerns. Because the trial court properly exercised its discretion in its application of the best interests standard, we affirm.

BACKGROUND

Motion to Prohibit Travel

¶ 3. Ardestani was born in Iran and moved to the United States in 1978 when he was twenty-eight years old. He and Long were married in 1980 and have four children: Shiva, d/o/b 5/24/82; Maria, d/o/b 10/22/84; Farshaun, d/o/b 7/02/88; and Kamran, d/o/b 4/01/90. Pursuant to the stipulated judgment of divorce, entered on July 22,1999, in Crawford County, the parties have joint legal custody of the four children. Long has primary physical placement, with Ardestani to have placement every other weekend, every Tuesday and Thursday from 3:00 p.m. to 7:00 p.m., three to six weeks in the summer depending on the children's wishes, and certain holidays. The judgment of divorce also provided, pursuant to the parties' stipulation:

H. In the event the respondent desires to take the minor children outside of the United States, he shall give sixty (60) days' notice of his intention to petitioner who then has thirty (30) days to move the Crawford County Circuit Court for an order prohibiting the trip or requiring the respondent to post a bond. In the event respondent desires to take the children to Iran for a summer vacation visit, respondent may have physical placement of the children up to six (6) weeks regardless of the respondent's placement entitlement under paragraph I.B.4. above provided, however, respondent shall not be entitled to any additional physical placement during the summer during which the Iranian visit occurs. If the Iranian vacation uses less physical placement time than the respondent is ordinarily entitled to under paragraph I.B.4., respondent shall receive the additional placements to which he is entitled.

¶ 4. In November 1999 after Ardestani told Long he intended to take the minor children to Iran to visit, Long moved the court for an order prohibiting Ardestani from removing the minor children from the United States. She asserted as grounds for the motion that Ardestani had repeatedly stated his intentions to take the children to Iran with him and not allow them to return; that, as a woman who was not a Moslem and not a citizen of Iran, she would not have standing in an Iranian court to demand the return of the children; and her remedies under international law were severely limited because the United States does not have diplomatic relations with Iran.

¶ 5. At the May 5, 2000 hearing on the motion, Long, represented by counsel, presented two witnesses who testified on Iranian law as follows. Iran is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) and does not have diplomatic relations with the United States. Under Iranian law, which is based on the Koran, the mother's custody of children is restricted to the age of two for boys and seven for girls and, above those ages, the father has custody; the mother has no claim to custody. If a mother has custody and physical placement of a child under an order of a court in the United States and the child is taken to Iran, the Iranian court does not give any weight to the United States court order, particularly if the mother is not a Moslem; if the father does not give permission to the child to leave Iran, the mother would not be permitted to take the child from Iran back to the United States. Boys need their father's permission to leave Iran up to a minimum age of eighteen, and girls need it regardless of age as long as they are unmarried. This would apply to Long's and Ardestani's children if they were in Iran, even though they are United States citizens and even though Ardestani is a United States citizen. Ardestani is still an Iranian citizen, the children are also Iranian citizens by virtue of their father's relation to Iran, and the children would be considered Iranian by Iranian authorities. If Ardestani were to die or become incapacitated or were not able to be contacted, his authority under Iranian law with regard to the children would transfer to the next male of authority within his family line.

¶ 6. Kristine Uhlman testified that a boy between the ages of twelve and fourteen can be drafted into the Iranian army, and this might interfere with a boy that age being able to leave Iran. According to Uhlman, Iranian families, in an effort to avoid having their boys drafted into the army, have sent them out of the country for education. She also testified that there is no existing legal mechanism that addresses the return of an abducted child if the child were taken to Iran. She agreed that, if Ardestani took the children to Iran, having the children returned would depend upon his good faith.

¶ 7. Long testified that she feared Ardestani would not return the children because, when she asked him for a divorce in May 1998 he said, "You know what will happen. And you haven't seen nothing yet." This meant to her that he would take the children to Iran and she would never see them, because in 1981 when she was pregnant with their first child and asked if she could have the child baptized, he made that threat explicitly saying, "If you don't raise them [sic] Moslem I will take the baby back to Iran and you'll never see it again." He also repeated that threat another time. Thereafter, during the course of their marriage when he wanted to control her he would say, "you know what will happen," and she understood he meant he would take the children and she would never see them. For this reason, when he said this in May 1998, she destroyed his American and Iranian passports and took other documents from his briefcase. During their marriage Ardestani also told her that men had sole custody of children in Iran and the mothers were never given custody. In 1997 he took the two girls, Shiva and Maria, for a visit to Iran, and when he came back he talked about some day moving to Iran: it was getting better, more open, he said. In the period just before the divorce, he said if they were divorced, he was going to leave. He has told her he "has to save face," and he wants revenge.

¶ 8. Long acknowledged that Ardestani took Far-shaun to Iran in 1991, when he was three, and the two girls in 1997, and there was no problem with him bringing them back. She is aware that Kamran wants to go with his father to Iran. She would encourage Ardestani to bring his parents to the United States, she would help him do this, and she would give him more time with the children then.

¶ 9. Ardestani, representing himself, testified as follows. He moved to Prairie du Chien in 1981 and began employment at 3M. He is still employed there, now working as an operator, and has a pension plan. He denied that he ever told Long that if they got a divorce, he would take the children away. He described himself as a citizen of this country who lives and works here and helps the community. His brother and sister-in-law live here and own real estate as part of their business, and they have a child. He is trying to help his sister come here. He wants his children to see their grandparents, aunts, uncles, and cousins; his mother is ill and that is why he wants to take the children now, especially Kamran, who has not seen her. Ardestani stated he would like to take all the children, if they wanted to go, and he had four weeks of vacation time which he would like to spend there.

¶ 10. Ardestani testified that he would not separate his children from their mother or from this country. Ardestani agreed it would be devastating to the children if they were taken to Iran and not allowed to return. He will do whatever is necessary to guarantee that they will come back safely, including signing over his pension, and his brother would also come to court and guarantee. He, Ardestani, has his retirement and career here, ten years left to work, and he is not going to give them up.

¶ 11. In response to the guardian ad litem's questions, Ardestani explained that he has looked into bringing his parents to the United States. However, they would have to apply for a permanent residency and they do not want to live here because they are old. Also, he has to have a certain amount of income for each family member he wants to bring here, and he has only enough for one person. He talked about it with his family and they decided it made more sense to take the children to Iran so they could see the whole family, rather than bringing just one person here to see the children. In response to a question on the possibility of his parents meeting his children in a third country, Ardestani testified that his parents could not travel on their own to a third country; it would be too expensive; and he wants the children to see his culture, where he was born and where he lived. Farshaun was too young to remember and Kamran has never been there.

¶ 12. The therapist who had been meeting with Farshaun and Kamran since November 1999 also testified. (She had also met with Ardestani and with Long.) The boys' concern about their father's expressions of anger had been alleviated for a number of reasons, they were doing well, and they probably needed no more counseling except a session for closure. She had discussed a possible trip to Iran with them. Kamran was excited to go; Farshaun said he did not know if he wanted to be gone that long from his friends and activities, which the therapist described as a typical reaction for an eleven year old. The boys told her that some people believe their father would not bring them back, but Kamran said if something happened and they could not get back with their father, he believed their uncle, who lives in Prairie du Chien, would come to get them. Both boys are close to their uncle.

¶ 13. The therapist testified that she has no reason to believe that Ardestani would want to separate the children from their mother. Her view was that Ardestani has the ability now to concentrate on what is best for his children and to set aside the feelings he had about their mother and the divorce. The therapist's concern, she explained, is what would happen if a tragedy occurred in Iran, given that it has no diplomatic relations with the United States. However, because Ardestani has a brother here, and four younger siblings in Iran, there would probably be family who would help the children come back to their mother. She agreed that it would be emotionally devastating to the children if their relationship with their mother were severed because Ardestani decided to keep them in Iran.

¶ 14. After the evidence, the guardian ad litem recommended that the children and Ardestani be accompanied to Iran by a trusted adult male relative, preferably their uncle who lives in Prairie du Chien, and that the trip be limited to three weeks.

¶ 15. The court first decided that because Shiva was soon to be eighteen, it was up to her if she wanted to go with her father to Iran: the court would neither require nor prohibit that. The court then ruled that the burden was on Long, the moving party, to show that Ardestani should be prohibited from taking the other children to Iran. Next, the court determined that if Ardestani took the children to Iran and decided not to return, there would be little that could be done to return the children to the United States. The court acknowledged the serious harm that would result should this occur. The court found that Long really was afraid that Ardestani might keep the children in Iran, and she was not acting to harm or get even with Ardestani. However, the court decided that in order for Long to prevail on her motion, she had to do more than show she had a genuine fear that Ardestani would keep the children in Iran and that the harm if he did keep them, because of her lack of recourse, would be great. The court identified the critical question as the likelihood that Ardestani would keep the children in Iran, and it then reviewed the evidence going to that question.

¶ 16. The court described Ardestani's statements that were the basis for Long's fears as "not very specific in recent years," and as generally concerning his authority as the father and husband. The court found that much of Ardestani's conduct and statements upon which Long's belief was based were part of the culture from Iran that Ardestani still carried with him, and were not evidence he was going to take the children from their mother. Against that conduct and statements, the court weighed Ardestani's statements made "numerous times" that he has no intention of fleeing the country with the children and no motive to do so. The court also referred to psychological evaluations of Ardestani, which did not provide a basis for concerns about his personality or psychology in relation to the issue before the court, and to the therapist's testimony that she did not have a concern that Ardestani would try to keep the children from their mother. For these reasons, the court determined Long had not proved there was a likelihood Ardestani would not return the children. However, the court did permit Long to exercise some type of control over Ardestani s pension, if she chose.

¶ 17. The written order entered by the court on May 22, 2000, denied Long's motion and directed that, upon her request, Ardestani was to provide and sign all documents with respect to his pension and retirement benefits necessary to provide Long with security to insure the return of the children. Three days later Ardestani filed a performance bond with the court, assigning his entire interest in his 3M pension, retirement, and voluntary investment program benefits to the Crawford County Clerk of Courts for the benefit of Long; the assignment was to terminate when he returned the children and, if he did not, distribution was to be made to Long as if he were deceased and she his sole beneficiary.

Motion for Reconsideration

¶ 18. Long appealed the trial court's order and asked the trial court, pending appeal, to prohibit Ardestani from taking the children out of the United States. The court denied the motion, and Long sought the same relief in this court. At oral argument on her motion in this court, Long argued, among other points, that the trial court did not consider the evidence presented at the May 5 hearing on the conscription of twelve- to fourteen-year-old boys by the Iranian government. The guardian ad litem informed us that, based on the information about the draft, which he did not remember from the May 5 hearing, his recommendation had changed and he now recommended that neither of the boys travel to Iran. Since the court reporter had not yet had time to prepare the transcript from the May 5 hearing, we were unable to determine what testimony had been presented on conscription at the May 5 hearing. Long presented to this court an affidavit from Uhlman averring it was her understanding that boys twelve and older were routinely drafted into the military by the Iranian government, and the United States citizenship of a boy would not protect him from the draft. This affidavit had not been presented to the trial court.

¶ 19. On June 19, 2000, we remanded the matter to the trial court to allow Long to bring a motion for reconsideration so the trial court could consider evidence on conscription into the Iranian army and consider the guardian ad litem's changed recommendation. We imposed a short time period for bringing the motion and for preparation of the May 5 transcript, and ordered Ardestani not to remove the children from the country until further order from this court.

¶ 20. At the June 23, 2000 hearing on remand, Ardestani, still proceeding pro se, presented testimony by telephone from K. Alipour. Alipour testified he was in charge of legal affairs of the Iranian Interests Section in the Pakistani Embassy. He was born and raised in Iran and served- in the Iran military. According to the Iranian law and constitution, Iranian male citizens are eligible for the draft at age eighteen if they are not continuing their education. This has been the law since the end of the Iran-Iraq war. During that war, 1980-87, young males below eighteen voluntarily served in the military. Ardestani's sons are not eligible for the draft until they are eighteen, and until that age, they can travel freely in and out of Iran. Alipour was aware of no law that would allow the Iranian government to detain children between the ages of twelve and fourteen so that they would not leave the country prior to being eligible for military service and he was aware of no practice of doing that. If something happened to Ardestani while he was in Iran with his children, their mother could go to get them or a close relative could send them back to the United States. The Iranian Interests Section issues visas in the United States for travel to Iran that contain stamps granting permission to leave Iran without getting authorization in Iran. Many American citizens are now traveling to Iran on such visas.

¶ 21. After Alipour's testimony, the hearing concluded for the day and was continued to June 28, 2000. At the beginning of the hearing on June 28, Long's counsel asked for a continuance. She explained that Uhlman had been prepared to testify on June 23, but was then scheduled to travel and testify on another matter, and she had not heard back from Uhlman in response to telephone calls and faxes to arrange for her testimony on June 28. Long's counsel did have two dates, July 3 and July 10, on which Uhlman could testify by telephone. Long's counsel also explained that she was attempting to obtain more information in response to Alipour's testimony, but she had not been able to complete that effort. The guardian ad litem joined in the request for a continuance.

¶ 22. The court denied the request for a continuance because this court had ordered the transcript for the hearing on remand to be filed by July 10. The trial court stated it understood the reason this court wanted to expedite the matter, observing that, in response to the order entered by this court, Ardestani had to change his plane tickets to a date uncertain at a financial cost.

¶ 23. The trial court did receive Uhlman's affidavit as evidence, while acknowledging it was hearsay, and did allow Long's counsel to make an offer of proof on what Uhlman's testimony would be. According to the offer of proof, Uhlman would testify as follows. She has specific information that there were teenagers who served in the Iranian army under the age of eighteen. She has information or is under the impression that boys were detained between the ages of twelve and fourteen so they would be available for military service at a later age. She had a case in which an Iranian/American wanted to travel with his son at age eleven or earlier to Iran because he would not be comfortable once his son turned twelve. It is common practice that teenagers are sent out of the country during their teenage years to avoid the possibility of draft. It is possible the constitution sets the age for draft at eighteen, but Iran changes its law by decree, so if there were a reason to have more young people in the military, the age could change by decree. She knew of no specific instance in which a teenager came to Iran for a visit in a situation such as this and was drafted into the military service.

¶ 24. In response to the court's questions, Long's counsel stated she had not asked Uhlman whether her knowledge of boys under eighteen serving in the military was based on the time of the Iran-Iraq war.

¶ 25. The court denied Long's motion for reconsideration. The court found there was not "a reasonable possibility," it was "not likely" and not "probable to any reasonable degree" that Ardestani would keep the children in Iran. The court referred to Ardestani's pledge of his retirement benefits, the many years he had lived here, his relatives here, and his children that would not be going. The court rejected the argument that, because the harm to the children if they were retained in Iran would be so devastating, the mere possibility of that occurrence was sufficient to prevent Ardestani from taking the children to Iran, regardless of the likelihood of that occurrence. With respect to the issue of the draft, the court discussed Uhlman's affidavit and offer of proof and Alipour's testimony, as well as Long's arguments that Alipour's testimony was not credible. The court determined that Alipour's testimony was credible and logical, observing that Alipour provided explanations for his statements. The court found that "during these times" there was not a reasonable likelihood or probability that the children would be drafted during their trip to Iran with their father.

¶ 26. With the transcripts of the May 5 hearing and the hearing on remand before us, we entered an order granting the relief Long sought pending disposition of the appeal, and we expedited the briefing schedule.

DISCUSSION

Continuance

¶ 27. Long contends the trial court erred in denying her request for a continuance of the hearing on her motion for reconsideration so that Uhlman could testify. We disagree.

¶ 28. A motion for a continuance is directed to the sound discretion of the trial court. State v. Anastas, 107 Wis. 2d 270, 272, 320 N.W.2d 15 (Ct. App. 1982). We affirm discretionary decisions when the trial court examines the relevant facts, applies the correct legal standard, and uses a rational process to reach a conclusion a reasonable judge could reach. F.R. v. T.B., 225 Wis. 2d 628, 637, 593 N.W.2d 840 (Ct. App. 1999).

¶ 29. In its order remanding to the trial court, this court imposed a strict time schedule for proceedings in the trial court because we were at the same time temporarily prohibiting Ardestani from leaving the country, even though we had not yet decided Long was entitled to such a prohibition pending appeal. The specific purpose of the remand was to provide Long with an opportunity to more fully develop the record with Uhlman's testimony. We recognize Long arranged for Uhlman to testify by telephone on the first day of the hearing on remand, and it was not through any fault of Long or Uhlman that Uhlman did not testify that day. However, the trial court accurately understood the importance this court placed on an expeditious proceeding on remand. The trial court also correctly perceived that, if it granted the continuance, it would not be able to meet the deadline we had imposed after already granting one request for an extension due to the court reporter's difficulty in meeting the first deadline we set.

¶ 30. Moreover, the trial court accommodated Long's desire to provide additional information from Uhlman by agreeing to consider the contents of Uhlman's affidavit and Long's offer of proof. At oral argument in this court, Long's counsel stated she had no information from Uhlman other than that which was presented to the trial court by affidavit and offer of proof. Therefore, Long has not established that a continuance would have produced evidence from Uhlman that the court did not already have from her affidavit and the offer of proof.

¶ 31. Under these circumstances, we have no hesitancy in concluding the trial court properly exercised its discretion in denying the continuance.

Burden of Proof

¶ 32. Long next argues the trial court improperly placed the burden of proof on her, rather than Ardestani, to prove he should be prohibited from taking the children to Iran. She contends the issue, properly framed, is whether it is in the children's best interests to go to Iran with their father, and this issue was not litigated in the divorce proceedings; rather, the parties stipulated to preserving this issue for later determination by the court. Therefore, according to Long, the court is really making an initial determination on the best interests of the children, and both parties have an equal burden of showing what is in the best interests of the children. Long relies on Gochenaur v. Gochenaur, 45 Wis. 2d 8, 172 N.W.2d 6 (1969), and Pamperin v. Pamperin, 112 Wis. 2d 70, 331 N.W.2d 648 (Ct. App. 1983), for her position. We conclude neither case advances Long's position.

¶ 33. In Gochenaur the court held that a parent moving for custody of her children, after she stipulated to custody with the father, did not have the burden of proving a change of conditions because the court had not made a full inquiry into, and a determination of, the children's best interests. Gochenaur, 45 Wis. 2d at 18-19. However, in Corcoran v. Corcoran, 109 Wis. 2d 36, 42, 324 N.W.2d 901 (Ct. App. 1982), we held that WlS. Stat. § 767.32(2) (1979-80), governing modification of custody orders (and enacted after Gochenaur was decided), did not treat stipulated custody awards differently than custody awards after litigation. Therefore, Gochenaur is no longer the law regarding modifications in custody or placement orders. In any event, Long's motion did not seek a modification of any provision in the divorce judgment, but was brought pursuant to one of those provisions on an issue not decided in the judgment.

¶ 34. The statement in Pamperin on which Long relies also is not relevant to this case. In Pamperin we stated that when the court makes an initial determination of custody, each party bears an equal burden to show an award of custody to that party is in the child's best interest. Pamperin, 112 Wis. 2d at 74-75. In this case, the initial determination of custody and placement was already made in the judgment of divorce.

¶ 35. The guardian ad litem, while also contending the court erred in placing the burden of proof on Long, takes a different position of the correct rule. The guardian ad litem contends that, when one parent wishes to travel with his or her children over the objection of the other parent to a country that is not a signatory to the Hague Convention, the parent who wishes to make the trip should have the burden of proving the trip should be allowed.

¶ 36. Which party has the burden of proof presents a question of law, which we review de novo. Wolfe v. Wolfe, 2000 WI App 93, ¶ 14, 234 Wis. 2d 449, 610 N.W.2d 222. We are persuaded that the trial court correctly concluded Long had the burden of proving that prohibiting Ardestani from taking the children to visit his family in Iran was in the children's best interests.

¶ 37. The general rule is that the party seeking judicial process to advance a position carries the burden of proof. Id. In this case Long is seeking a court order prohibiting Ardestani from taking the minor children to Iran for a visit. She is doing so consistent with the procedure the parties stipulated to, which was incorporated in the judgment of divorce. Under that procedure Long has the obligation to move the court to prohibit Ardestani from taking the children to Iran; Ardestani's only obligation before taking the children is to notify Long sixty days in advance of his desire to take the children. The same stipulated provision also specifies the length of such a visit and its effect on the placement schedule. This indicates the parties contemplated that, if Long did not move the court to prohibit Ardestani, he could take the children without seeking any court approval, consistent with the terms of the provision.

¶ 38. This procedure is similar to that in the statute governing situations in which a parent wishes to remove a minor child from the state of Wisconsin for a period of more than ninety consecutive days and the other parent has periods of physical placement. WlS. Stat. § 767.327 (1999-2000). The parent wishing to do so must give the other parent notice at least sixty days in advance to allow the other parent to object. Section 767.327(1). A parent wishing to prohibit the removal must do so by motion to the court and has the burden of proof to show prohibition is in the children's best interests. Section 767.327(3)(c)2.

¶ 39. There is no statutory provision prohibiting a parent with joint legal custody and physical placement from taking the child on a visit outside Wisconsin, including to a foreign country, for less than ninety days. Also, in the absence of a provision in the divorce judgment to the contrary, there is no reason a parent with joint legal custody may not take a child on a visit to another country during the child's physical placement with that parent, without the other parent's permission, as long as the visit is less than ninety days.

¶ 40. We conclude that, when parents have agreed, as they have here, that one parent must move the court to prohibit the other from taking a particular trip with the children, the moving party has the burden of proof — both the burden of producing evidence and the burden of persuading the court that prohibiting the trip is in the children's best interests. Although the guardian ad litem urges us to adopt a different rule when the trip is to a country that is not a signatory to the Hague Convention, he provides us with no case law authority for such a rule. Moreover, in the one article brought to our attention that addresses the question of burden of proof — Susan L. Barone, International Parental Child Abduction: A Global Dilemma With Limited Relief- — Can Something More Be Done ?, 8 N.Y. Int'l L. Rev. 95, 118 n.199 (1995) — the author "proposes that the threatened parent should have the burden of proving an abduction threat by a preponderance of the evidence."

Best Interests of Children

¶ 41. The best interests of the children is the dominant concern in any decision in divorce actions affecting custody or physical placement of children. Racine Family Court Comm'r v. M.E., 165 Wis. 2d 530, 536, 478 N.W.2d 21 (Ct. App. 1991). Long argues the trial court failed to consider the best interests of the children in making its ruling. If Long means the trial court did not apply the standard of the best interests of the children, we disagree.

¶ 42. The parties' arguments to the court at both the May 5 hearing and on the motion for reconsideration make clear that the parties and the court understood the issue was whether it was in the children's best interests to go to Iran with their father. There was evidence that it would be beneficial for the children to travel with their father to the country of his birth and visit his family with him, assuming the children were returned, and there was no evidence to the contrary. There was no dispute it would be devastating to the children if they were not returned. We agree with the trial court and Ardestani that it was necessary for the court to consider not only the benefit to the children of going and the harm to them if they were not returned — neither of which were disputed — but also the likelihood of their not returning, which was the central factual dispute in this case. Accordingly, the evidence and the trial court's decision were focused on this dispute. However, this focus does not mean the trial court was not ultimately deciding what was in the children's best interests.

¶ 43. We understand Long to also argue that the trial court erred in applying the best interest standard because it did not give proper weight to the devastating effect on the children if they were not returned to their mother in the United States. Because the determination of a child's best interests depends on firsthand observations and experience with the persons involved, it is committed to the trial court's discretion. F.R. v. T.B., 225 Wis. 2d 628, 637, 593 N.W.2d 840 (Ct. App. 1999). We therefore examine the trial court's ruling to determine whether it properly exercised this discretion. In doing so, we are mindful that assessing the credibility of witnesses and weighing their testimony are functions of the trial court, not. this court, and we do not reverse the trial court's findings of fact unless they are clearly erroneous. Wis. STAT. § 805.17(2); State ex rel. T.R.S. v. L.F.E., 125 Wis. 2d 399, 401, 373 N.W.2d 55 (Ct. App. 1985).

¶ 44. In this case the critical question of the likelihood of the children being returned has these component questions: (1) What is the likelihood that Ardestani will intentionally refuse to return the children or refuse to see that they are returned? (2) What is the likelihood that one or both boys would be detained by the Iranian government so that they could serve in the military? (3) What is the likelihood that, if Ardestani through accident becomes unable to return the children, they will be able to return nonetheless? (4) What legal mechanisms exist to insure that if Ardestani does intentionally refuse to return the children or see that they are returned, and if his relatives refuse to or are unable to see that they are returned, Long can nonetheless secure their return?

¶ 45. The trial court carefully evaluated Long's and Ardestani's testimony, and considered the other testimony and evidence presented relevant to Ardestani's intentions. The trial court found Ardestani intended to bring the children back as he said he would. This is a factual finding highly dependent on the trial court's assessment of the credibility of witnesses. There is ample evidence in the record to support such a finding, which the trial court explained. Therefore, we will not set aside this finding.

¶ 46. The trial court's finding that there is no reasonable likelihood of detainment for military service in Iran or of conscription was based on its assessment of the persuasiveness of the testimony of Alipour as compared to the proffered testimony of Uhlman. Again, this is an assessment for the trial court to make, not this court, and we will not disturb it.

¶ 47. The court also considered the evidence on the question of what would happen if Ardestani was unable to bring the children back himself. It heard the testimony of the children's therapist, who had considered this question, and evidence that Ardestani had relatives both in Iran and in the United States who could help bring the children home. There was no evidence suggesting that any family member who would have authority over the children under Iranian law if something happened to Ardestani would not help them return to Long.

¶ 48. Finally, the court considered the undisputed evidence that Iran was not a signatory to the Hague Convention, it did not have diplomatic relations with the United States, and the courts of Iran would not recognize an order of a court of the United States awarding Long custody of her children. The court did not ignore this evidence, but forthrightly addressed it: the court acknowledged that it could not absolutely rule out the possibility that Ardestani would act other than as he promised, and, if this occurred, Long would be without a legal remedy and the effect on the children would be devastating. Ultimately, the court had to weigh the benefit of the children going to Iran with their father against the likelihood that they would not be returned, along with the harm to them if they were not returned. That weighing, we conclude, is part of the exercise of the trial court's discretion in deciding what is in the children's best interests. We are satisfied the trial court properly exercised its discretion in deciding it should not prohibit Ardestani from taking the children to Iran.

¶ 49.. Both Long and the guardian ad litem ask that we rule as a matter of law that a parent, even one having custody or joint custody, may not take a child to a country that is not a signatory to the Hague Convention if the other parent objects, even if a court finds the parent wishing to take the child intends to return the child and otherwise comply with court orders. They argue such a rule is good policy because the consequences of a failure to return the child in such situations are so severely adverse to the child.

¶ 50. However, none of the cases brought to our attention from other jurisdictions even hint at such a rule. Rather, in those cases in which courts have ordered restricted visitation in this country because of fear of abduction to another country, or have prohibited a parent from taking a child to, or having visitation with the child in, another country, the courts have examined the facts and circumstances of each case to arrive at the best interests of the child. In some cases the trial courts have found, based on the evidence, that there is sufficient likelihood a parent may flee the country with the child, as the other parent fears, to justify restrictions. In others cases trial courts have found, based on the evidence, there is not a sufficient likelihood of that occurring to justify either supervised visitation in this country or a prohibition on visitation in another country. The appellate courts in these cases have reviewed the trial courts' factual findings and discretionary determinations under deferential standards similar to those we have already enunciated in this case.

¶ 51. While in some cases the difficulty of obtaining the return of the child in the event of an abduction (because the other country is not a signatory to the Hague Convention or for other reasons) is one factor courts have considered in imposing restrictions, see, e.g., Al-Silham v. Al-Silham, No. 93—A-1770, 1994 WL 102480, at *1 (Ohio Ct. App. March 25, 1994), in no case of which we are aware is this the only factor. Indeed, the Minnesota Court of Appeals has specifically rejected such an argument in the context of deciding whether visitation in this country should be supervised or not. See Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10, 13 (Minn. Ct. App. 1992) (decision whether to order supervised visitation depends on particular facts of the case and unwillingness of non-custodial parent's native country to enforce trial court's order is not controlling). In addition, none of the articles to which the parties have directed us suggest the adoption of a rule such as Long and the guardian ad litem propose.

¶ 52. We are satisfied that the standard of the best interests of the child, comprehensive as it is, permits a full consideration of concerns both about a parent's intention in abducting a child and about the lack of a remedy should that occur. We are also satisfied that there is no need to alter the deference appellate courts give to trial courts' decisions on a child's best interests in order to insure a full consideration of those concerns.

¶ 53. The guardian ad litem suggests, as an alternative to adopting the rule of law he advances, that we provide guidance to trial courts by listing the factors they should take into account in deciding whether to permit one parent to take a child to another country for a visit, and that we remand to permit evidence on these factors. At oral argument the guardian ad litem mentioned such factors as: the intention of the parent to return with the child; methods of providing security that the parent will return with the child; the effect on the child; the desires of the child; the reason for the visit; and the. current policies, laws, and practices of the country to which the parent wishes to take the child for a visit. While we can readily agree these are appropriate factors to consider in this case, and, perhaps in many others, we see no need to establish a definitive list of factors. The virtue of the best interests standard is that it permits the trial court to take into account all facts and circumstances bearing on the best interests of the particular child, and we view an attempt to define what those might be in a general category of cases as neither necessary nor fruitful.

¶ 54. We also see no need for a remand in this case. The trial court had before it evidence bearing on all the factors the guardian ad litem suggests are relevant, and it considered those factors in reaching its decision not to prohibit Ardestani from traveling to Iran with his minor sons. As we have already concluded, the trial court properly exercised its discretion in making that decision.

By the Court. — Order affirmed.

       The purpose of the Hague Convention on the Civil Aspects of Child Abduction is "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure prompt return to the State of their habitual residence, as well as to secure protection for rights of access." Mezo v. Elmergawi, 855 F. Supp. 59, 62 (E.D. N.Y. 1994) (citations omitted). The Hague Convention provisions apply only to those countries who sign it and thereby agree to abide by its terms. Id.

       There was also testimony that the age at which transfer of custody from the mother to the father varied in different regions of Iran and could be older than seven, depending on the gender of the child.

       The order also directed the minor children's passports to be held by the court until they reach eighteen at which time the passports will be released to the children, with release to either parent before then being on court order. Release to Ardestani was specifically ordered to facilitate the trip to Iran during the summer of 2000.

       The transcript then before us from the hearing in the trial court'on relief pending appeal showed Long's counsel made the argument about the conscription evidence, and both the trial court and the guardian ad litem indicated they did not recall that evidence.

       Although Long's motion and the court's order denying it referred to "the minor children," it appears Ardestani made specific plans to take only Farshaun and Kamran.

       One of the issues to be decided on appeal — whether Ardestani should be permitted to take the children to Iran, even if he intends to bring them back, because there is no legal mechanism to effectuate their return if something happens to him — is an issue of first impression in Wisconsin. We therefore appointed counsel to represent Ardestani from the Volunteer Pro Bono Program established by the Wisconsin State Bar Appellate Division. Subsequently, we denied Ardestani's motion to vacate the order prohibiting him from removing the children from this country pending disposition of the appeal.

       In its decision on remand, the trial court stated:
      And it is the petitioner who must make a showing that it is likely. I guess it is burden of proof here is, perhaps, an issue that was mentioned before the Court of Appeals. But whatever the burden is, you haven't met it because it's not been shown to be likely. It's a mere possibility. As Mr. Ardestani says it's possible he could, someone go outside the courtroom and be struck by a car today. It could happen. You try to bootstrap onto that the risk is too great, that there is any possibility that the risk is too great. I do not believe that is correct. And, so, it is not likely. It is not probable.
      Ardestani reads this statement to mean that the trial court's decision would be the same no matter which party had the burden of proof. Long, as her counsel 'explained at oral argument, understands the trial court to mean that, whatever the degree of certainty Long had to meet to fulfill her burden of proof, she had not met it. In Long's view, the trial court is still adhering to its statement in its May 5 ruling that she had the burden of proof. Because we review de novo the question which party has the burden of proof, we need not resolve these conflicting interpretations.

       We noted in Pamperin v. Pamperin, 112 Wis. 2d 70, 74-75 n.2, 331 N.W.2d 648 (Ct. App. 1983), that our instruction to the trial court on the prior appeal in the same case — that this standard should be used because the parties had stipulated to custody — was in error in light of Corcoran v. Corcoran, 109 Wis. 2d 36, 42, 324 N.W.2d 901 (Ct. App. 1982), but that it was nonetheless binding as law of the case.

       In Wolfe v. Wolfe, 2000 WI App 93, ¶ 15, 234 Wis. 2d 449, 610 N.W.2d 222, we concluded that, although the father, who had not had contact with his son, brought a motion seeking minimal contact, the mother had the burden of proving endangerment under Wis. STAT. § 767.24(4)(b) (1997-98). (This section provides that a child is entitled to physical contact with both parents unless, after a hearing, the court finds "physical placement with a parent would endanger the child's physical, mental or emotional health.") We concluded the mother bore the burden, even though the father brought the motion, because, under the statute, the court could not deny his motion unless it found endangerment, and the mother was the party advancing that position. Wolfe, 2000 WI App 93 at ¶ 15. Whether this conclusion conflicts with our statement in Sterlingworth Condo. Ass’n, Inc. v. DNR, 205 Wis. 2d 710, 726, 556 N.W.2d 791 (Ct. App. 1996), that "[t]he customary common-law rule [is] that the moving party has the burden of proof, including not only the burden of going forward but also the burden of persuasion," is an issue we need not decide in this case.

       Wisconsin Stat. § 767.327(l)(a)2 (1999-2000) also governs situations in which one parent wishes to establish legal residence with the child outside the state or within a distance of 150 miles from the residence of the other parent. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       We discuss the two cases the guardian ad litem cites, Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10 (Minn. Ct. App. 1992), and Soltanieh v. King, 826 P.2d 1076 (Utah Ct. App. 1992), later in this opinion.

       See, e.g., Soltanieh v. King, 826 P.2d 1076, 1079-80 (Utah Ct. App. 1992); Al-Silham v. Al-Silham, No. 94—A—0048, 1995 WL 803808, at *2-*3 (Ohio Ct. App. Nov. 24,1995) (per curiam).

        See, e.g., Bergstrom v. Bergstrom, 320 N.W.2d 119, 122 (N.D. 1982).

       See footnote 12.

        See, e.g., Al-Zouhayli, 486 N.W.2d at 13.

      See, e.g., Markus v. Markus, 427 N.Y.S.2d 625, 627 (N.Y. App. Div. 1980) (allowing visitation to Israel with conditions); Lolli-Ghetti v. Lolli-Ghetti, 556 N.Y.S.2d 324, 325 (N.Y. App. Div. 1990) (allowing visitation in Monaco and eliminating bond); Hatzievgenakis v. Hatzievgenakis, 434 N.W.2d 914, 917-18 (Iowa Ct. App. 1988) (allowing visitation in Greece upon posting of reduced bond).

      See Patricia E. Apy, Managing Child Custody Cases Involving Non-Hague Contracting States, 14 J. Am. Acad. MATRIMONIAL LAW. 77 (1997); Susan L. Barone, International Parental

        Child Abduction: A Global Dilemma With Limited Relief- Can Something More Be Done?, 8N.Y. Int'l L. Rev. 95 (1995); Monica E. Henderson, Note, U.S. State Court Review Of Islamic Law Custody Decrees — When Are Islamic Custody Decrees In The Child's Best Interest?, 36 BRANDEIS J. Fam. L. 423 (1997-98); and Mary A. Ryan, Statement before the Committee on International Relations United States House of Representatives Concerning Implementation of the Hague Convention on the Civil Aspects of International Child Abduction (Oct. 14, 1999), at http://travel.state.gov/101499mar.html.


author: HOOVER, P. J.

text:
    In the Interest of Sarah R.P., a person under the age of 18: State of Wisconsin, Petitioner-Respondent, v. Sarah R.P., Respondent-Appellant.
    Court of Appeals

      No. 00-2127-FT.

      Submitted on briefs December 4, 2000.

    Decided January 30, 2001.

    2001 WI App 49
    (Also reported in 624 N.W.2d 872.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs oí Brian C. Findley, deputy first assistant state public defender, of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Ruth A. Bachman, assistant district attorney, of Barron.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

       This is an expedited appeal under Wis. Stat. Rule 809.17. This appeal is being decided by a three-judge panel pursuant to the chief judge's January 23, 2001, order. All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

   HOOVER, P. J.

¶ 1. Sarah R.P. appeals a dispo-sitional order adjudicating her delinquent. She contends that the juvenile court erred when it vacated a consent decree after the decree's expiration date. This court holds that the court's authority to adjudicate Sarah delinquent was revoked when the consent decree expired. The dispositional order is therefore reversed and the case is remanded to the juvenile court with directions to enter an order dismissing the original petition with prejudice.

BACKGROUND

¶ 2. A delinquency petition was filed charging Sarah with shoplifting, contrary to WlS. Stat. §§ 938.12 and 943.50(lm)(b). The public defender's office appointed an attorney to represent Sarah in the delinquency action. On June 8, 1999, the State and Sarah entered into a consent decree that was to expire on December 8, 1999. The consent decree included a curfew and a condition that Sarah not engage in further law violations. On December 1, 1999, the State filed a petition to vacate the consent decree, alleging that Sarah violated the curfew and stole two pens from school. Sarah did not file an objection to the petition. On December 21, thirteen days after the consent decree was to have expired, the trial court held a hearing on the State's vacation petition. Notice of the hearing had been sent to Sarah and the public defender's office. Neither Sarah nor her attorney appeared at the hearing.

¶ 3. The juvenile court vacated the consent decree. It noted that the court may extend juvenile proceedings for cause, for example, when a matter cannot be heard prior to the expiration of an order, although it acknowledged that the State had not obtained an extension order in this instance. The court also relied upon its finding that

notice requirements have been met and that the petition to vacate and the notice all went out prior to the expiration of the order. I'm also willing to find that there's no appearance and no objection, which in my view permits you to re-initiate the proceedings at the point they left off.

Although the juvenile court vacated the consent decree, it nevertheless held the matter open for reconsideration.

¶ 4. Later that day, the public defender who had been present at the hearing sent a memorandum to the juvenile court alerting it to In re Leif E.N., 189 Wis. 2d 480, 526 N.W.2d 275 (Ct. App. 1994), which interpreted WlS. Stat. § 48.32(3), the statute that had previously provided the procedure when the State sought to vacate a consent decree. LeifE.N. held that under the plain language of § 48.32(3), in order to vacate a consent decree, the juvenile court's finding that the consent decree was violated must precede the decree's expiration. On January 11,2000, at what was intended to be the disposition hearing, the court heard arguments from counsel primarily on whether Leif E.N. retained vitality in light of the juvenile code's restructuring. At the conclusion of the hearing, the juvenile court adjudicated Sarah delinquent on her earlier admission. The court ordered that the matter be set again for a dispositional hearing. In the interim, because Sarah's counsel indicated that he had not anticipated the State's argument that Leif E.N. notwithstanding, code changes permitted the court to vacate the consent decree post-expiration, the court permitted Sarah's attorney to file an additional memorandum prior to disposition.

¶ 5. Thereafter, Sarah's attorney renewed the motion to dismiss the petition, and at the dispositional hearing the juvenile court again entertained argument. The court concluded that it was authorized to vacate the consent decree after its expiration date under the broad language of WlS. Stat. § 938.315(3) and because of the difficulty in scheduling the matter so as to be heard before the expiration date. It ultimately entered the dispositional order that Sarah now appeals.

STANDARD OF REVIEW

¶ 6. The issues presented by this case involve applying the law to undisputed facts and statutory interpretation, both questions of law. The standard of review is therefore de novo. In re D.S.P., 166 Wis. 2d 464, 471, 480 N.W.2d 234 (1992); Ball v. District No. 4, Area Bd., 117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984).

ANALYSIS

A. Wisconsin Stat. § 938.315

¶ 7. Under Wis. Stat. § 938.32, juvenile courts may place an alleged delinquent on supervision, subject to conditions. The order for supervision is called a consent decree:

(l)(a) At any time after the filing of a petition for a proceeding relating to s. 938.12 or 938.13 and before the entry of judgment, the judge or juvenile court commissioner may suspend the proceedings and place the juvenile under supervision in the juvenile's own home or present placement.... The court may establish terms and conditions applicable to the parent, guardian or legal custodian, and to the juvenile .... The order under this section shall be known as a consent decree ....

¶ 8. Wisconsin Stat. § 938.32(2)(a) provides that "[a] consent decree shall remain in effect for up to one year unless the juvenile, parent, guardian or legal custodian is discharged sooner by the judge or juvenile court commissioner."

¶ 9. WISCONSIN Stat. § 938.32(3) dictates the procedure when the State seeks to vacate a consent decree on the basis of an alleged violation:

If prior to discharge by the court, or the expiration of the consent decree, the court finds that the juvenile or parent, legal guardian or legal custodian has failed to fulfill the express terms and conditions of the consent decree or that the juvenile objects to the continuation of the consent decree, the hearing under which the juvenile was placed on supervision may be continued to conclusion as if the consent decree had never been entered. (Emphasis added.)

If the period of supervision is completed, WlS. STAT. § 938.32(4) states in part:

No juvenile who is discharged by the court or who completes the period of supervision without reinstatement of the original petition may again be proceeded against in any court for the same offense alleged in the petition or an offense based on the same conduct, and the original petition shall be dismissed with prejudice.

In Leif E.N., this court interpreted Wis. Stat. § 48.32(3), the statute that previously provided the procedure when the State sought to vacate a consent decree. Leif E.N. held that "[t]he statute regulating consent decrees is plain and straightforward; it dictates that before the consent decree expires, the juvenile court must find that the terms of the consent decree have been violated." Id. at 482. The court expressly concluded that when the consent decree expires, the juvenile petition is automatically dismissed and the authority of the juvenile court is revoked. Id. at 486. Specifically, Leif E.N. noted that "if the parties enter into a consent decree, the proceedings are suspended, § 48.32(1), and when the consent decree expires, the original petition is to be dismissed with prejudice and no further action can be taken based on the specific conduct alleged in the original petition. Section 48.32(4)." Id. at 485. The court further observed that a juvenile court's competency is conferred by statute, and thus:

Because it is the filing of the petition that confers competency upon the juvenile court, the dismissal of the petition revokes the competency of that court. When a consent decree expires, the original delinquency or CHIPS petition is dismissed with prejudice, § 48.32(4), STATS., and the competency of the juvenile court is revoked; therefore, it is without any power or authority to consider a motion to vacate the consent decree.

Id. at 485-86. This court therefore reversed Leif E.N.'s adjudication because the juvenile court erred when it concluded that it retained jurisdiction after the consent decree expired.

¶ 10. The State correctly observes, however, that Leif E.N. predates the adoption of WlS. STAT. ch. 938. As noted above, however, WlS. STAT. § 938.32(3) is identical to the statute Leif E.N. construed. That court's construction of the language here in question is binding on this court. See WlS. Stat.§ 752.41(2). Thus, under Leif E.N., if the trial court did not find a consent decree violation before the decree expired, it lost jurisdiction to do so.

¶ 11. The State nevertheless points to a statutory change after the Leif E.N. decision and argues that the amendment now provides that the time for finding a consent decree violation can be tolled. The Leif E.N. court held that a motion to vacate did not toll the running of the consent decree's term under WlS. STAT. § 48.315 (1991-92). See id. at 486. It noted that there was no provision in WlS. STAT. ch. 48 excluding from time computations any period after a motion to vacate a consent decree was filed. Id. The State argues, however, that WlS. Stat. § 48.315 (1991-92) differs from § 938.315 because the latter contains a provision that the former did not. Under § 938.315(3), "[fjailure to comply with any time limit specified in this chapter does not deprive the court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction." (Emphasis added.) The State argues that the date for finding the violation required to vacate a consent decree is a "time limit," subject to extension or tolling under § 938.315. This court disagrees.

¶ 12. Wisconsin Stat. § 938.315(3) unambiguously applies to failures to comply with "time limits" specified in ch. 938. Chapter 938 specifically designates "time limits" as such. One example of the many time limits ch. 938 imposes is the requirement that an intake worker must request that a petition be filed within forty days of receipt of referral information. The code specifically denominates this requirement as a "time limit." See WlS. Stat. § 938.24(5). Conversely, the code does not similarly describe the violation finding. This court therefore concludes that the timing of the juvenile court's violation finding is not a "time limit" within the meaning of § 938.315(3). Moreover, this court agrees with Sarah that a consent decree provides for a "period of supervision" that terminates when the period concludes. See Leif E.N., 189 Wis. 2d at 482.

B. Wisconsin Stat. § 938.315(l)(dm)

¶ 13. The State advances a separate argument under WlS. STAT. § 938.315(l)(dm), which provides:

The following periods shall be excluded in computing time requirements within this chapter:
(dm) Any period of delay resulting from court congestion or scheduling.

The State refers to the trial court's finding that the hearing on the State's motion was set as early as possible under the circumstances. From this finding the State contends, that

under sec. 938.315(l)(dm) the period of delay in holding the hearing between the time the petition to vacate was filed (December 1, 1999), and the time the hearing was held (December 21, 1999), is not counted in determining if the time requirement of sec. 938.32(3) was met. The expiration of the consent decree was therefore effectively tolled.

¶ 14. It is plausible to suggest that the timing of the juvenile court's finding vis-a-vis the consent decree's expiration date is a "time requirement." However, given the connotation of the root term "expire" and WlS. Stat. § 938.32(3)'s scheme, this court rejects the State's interpretation of WlS. STAT. § 938.315(l)(dm). Rather than provide for a time requirement, § 938.32(3) unambiguously mandates a time sequence. Tautologies are seldom useful but in this instance it is axiomatic that once a decree expires, it is expired. At a minimum, in order to prevent expiration, something must occur prior thereto. That something, under what Leif E.N. declared was the clear requirement of § 938.32(3)'s twin predecessor, is the juvenile court's finding of a consent decree violation. However, after the decree has expired, it cannot be resurrected.

C. Waiver

¶ 15. Wisconsin Stat. § 938.315(3) states that "[failure to object to a period of delay or a continuance waives the time limit that is the subject of the period of delay or continuance." The State argues that Sarah waived the timé requirement for vacating the consent decree by failing to object at or before the court's ruling at the December 21 hearing. This court rejects the State's waiver argument. First, as discussed above, the requirement that a violation finding precede the decree's expiration is not a "time limit" as that phrase is used in § 938.315(3). Moreover, regardless of the merits of the State's position, and Sarah's failure to object notwithstanding, the juvenile court held the issue open, sua sponte, so as to rule on a matter implicating its authority to act in as an informed manner as possible.

¶ 16. The juvenile court erred when it vacated the consent decree after December 8,1999, adjudicated Sarah delinquent and entered a dispositional order. Because the court's authority to adjudicate was revoked when the consent decree expired, this court reverses the dispositional order and remands to the juvenile court with directions to enter an order dismissing the original petition with prejudice.

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

        See WlS. STAT. § 938.32.

       The parties agree that while a public defender was present at the hearing, he advised the court that he did not represent Sarah.

       There is no indication in the record that Sarah's attorney received notice. While Sarah does not raise this issue, she does contend that notice was not properly served. Because this court reverses on the merits, it need not address this argument. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

         See generally 1995 Wis. Act 77.

      WlSCONSIN Stat. § 938.315(3) provides in part: "Failure to comply with any time limit specified in this chapter does not deprive the court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction."
      The transcripts demonstrate that the juvenile court was familiar with the effects WlS. Stat. ch. 938's adoption had on the time strictures with which the court and the juvenile system were confronted under the previous juvenile code. Thus, while the trial court did not make specific reference, it may also have been considering WlS. STAT. § 938.315(l)(dm), which excludes any period of delay resulting from court congestion or scheduling in computing ch. 938 time requirements.

      At the January 11 hearing, the trial court alluded to the short time available between filing the vacation motion and the decree's expiration date. It further opined that had a request for extension been made, it would have been granted because of the court's congested calendar.
      Moreover, at the dispositional hearing the trial court found that the juvenile court clerk scheduled the hearing on the State's vacation motion "as quickly as she reasonably [could], given the time constraints ...."

       The language in WlS. STAT. §48.32(3) (1991-92) is the same as in WlS. STAT. § 938.32(3):
      If, prior to discharge by the court, or the expiration of the consent decree, the court finds that the child or parent, legal guardian or legal custodian has failed to fulfill the express terms and conditions of the consent decree or that the child objects to the continuation of the consent decree, the hearing under which the child was placed on supervision may be continued to conclusion as if the consent decree had never been entered.

       Wisconsin Stat. § 48.32(1) (1991 — 92) is materially identical to Wis. Stat. § 938.32(1).

       Wisconsin Stat. § 48.32(4) (1991-92) is identical to Wis. Stat. § 938.32(4).

       Wisconsin Stat. § 938.315(3) provides:
      Failure to comply with any time limit specified in this chapter does not deprive the court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction. Failure to object to a period of delay or a continuance waives the time limit that is the subject of the period of delay or continuance. If a party does not comply with a time limit specified in this chapter, the court may grant a continuance under sub. (2), dismiss the petition with or without prejudice, release the juvenile from secure or nonsecure custody or from the terms of a custody order or grant any other relief that the court considers appropriate.

       Moreover, to the extent the State may be additionally implying that the consent decree's expiration date is a time limit subject to extension or tolling under WlS. STAT. § 938.315, this court concludes that the decree's termination date is not "a time limit specified in ch. 938." WlS. STAT. § 938.315(3) (emphasis added). Rather, the decree itself supplies its term or "period of supervision."

       Wisconsin Stat. § 938.24(5) provides in part:
      The intake worker shall request that a petition be filed, enter into a deferred prosecution agreement or close the case within 40 days or sooner of receipt of referral information. . . . Notwithstanding the requirements of this section, the district attorney may initiate a delinquency petition under s. 938.25 within 20 days after notice that the case has been closed or that a deferred prosecution agreement has been entered into. The judge shall grant appropriate relief as provided in s. 938.315(3) with respect to any such petition which is not referred or filed within the time limits specified within this subsection. Failure to object if a petition is not referred or filed within a time limit specified in this subsection waives that time limit. (Emphasis added.)

       See Wis. Stat. § 938.32(4): "No juvenile who is discharged by the court or who completes the period of supervision...."
      The length of a consent decree has also been referred to as its "term." See In re Leif E.N., 189 Wis. 2d 480, 482 n.1, 526 N.W.2d 275 (Ct. App. 1994).

       Webster's Third New Int'l Dictionary 801 (unabr. 1993) defines "expire" as to become void through the passage of time, or more colorfully but equally apropos, to breathe one's last breath. For purposes of statutory interpretation or construction, dictionary definitions may be consulted to establish the common and approved usage of words. See WlS. Stat. § 990.010(1); see also Swatek v. County of Dane, 192 Wis. 2d 47, 61, 531 N.W.2d 45 (1995). This is not to say that courts may resort to a dictionary only when construing ambiguous statutes. See State ex rel. Smith v. City of Oak Creek, 139 Wis. 2d 788, 798 n.6, 407 N.W.2d 901 (1987) (concluding that the necessity of looking to a standard dictionary to ascertain the usual meaning of words does not render a word used in a statute ambiguous).

       It can be argued that this holding effectively shortens the term of the consent decree so that a juvenile could violate its conditions with impunity as the decree approaches expiration. This argument was addressed by the LeifE.N. court, which held that
      [t]he succinct answer to this argument is that as a result of our holding in this case the term of the consent decree remains six months; the child parent, guardian or legal custodian remain under supervision and receive social services for the full six months. The practical effect of our ruling is to require immediate and close supervision of the parties to the consent decree, a consequence that benefits all involved.

        Id. at 487.


author: PER CURIAM.

text:
    John D. Puchner, Plaintiff-Appellant, v. Anne C. Hepperla, Defendant-Respondent. John D. Puchner, Plaintiff-Appellant, v. Bruce C. O'Neill, Anne Hepperla and Jacqueline Hepperla, Defendants-Respondents.[Case No. 98-2853] Anne C. Hepperla, Petitioner-Respondent, v. John D. Puchner, Respondent-Appellant. [Case No. 98-3446]
    Court of Appeals

      Nos. 98-2853, 98-3446.

      Submitted on briefs November 22, 2000.

    Decided January 31, 2001.

    2001 WI App 50
    (Also reported in 625 N.W.2d 609.)

      On behalf of the plaintiff-appellant and respondent-appellant, the cause was submitted on the briefs of John Puchner, pro se.
    On behalf of the defendants-respondents and petitioner-respondent, the cause was submitted on the briefs oí Bruce C. O'Neill and Diane Slomowitz of Fox, O'Neill & Shannon, S.C. of Milwaukee.
    Before Nettesheim, Anderson and Snyder, JJ. .
   PER CURIAM.

¶ 1. In these consolidated appeals, we hold that John D. Puchner's appeals are frivolous and remand to the circuit court under WlS. Stat. Rule 809.25(3)(a) for a determination of the costs, fees and reasonable attorney's fees to be awarded to the respondents, Anne Hepperla, Bruce C. O'Neill and Jacqueline Hepperla. We also bar Puchner from commencing future proceedings in this court and the circuit court arising from, relating to or involving Anne Hepperla until the monetary sanction is paid in full.

¶ 2. Anne Hepperla (hereinafter Hepperla) and Puchner were divorced in 1992. Since 1994, Puchner has filed twenty cases in the court of appeals relating to postdivorce disputes involving Hepperla. Puchner has not prevailed in any case he has filed in this court. Of the twenty cases Puchner has filed, we affirmed the circuit court in six cases (including the appeals which are the subject of this opinion), dismissed for lack of jurisdiction in two cases and dismissed for failure to comply with the rules of appellate procedure in two cases. We also dismissed or denied all of Puchner's nine petitions requesting that this court exercise its supervisory-jurisdiction over the circuit court.

¶ 3. We turn to the pending appeals. In appeal no. 98-2853, Puchner sought to appeal from a summary judgment disposing of his defamation claim against Hepperla, Bruce O'Neill and Jacqueline Hep-perla. As a result of an inquiry regarding our jurisdiction, we concluded that Puchner did not timely appeal from the order granting summary judgment. Therefore, we limited the issues on appeal to a challenge to a subsequent order calculating Hepperla's actual attorney's fees and costs after the circuit court found that Puchner's defamation action constituted harassment of Hepperla and her counsel. We expressly declined to consider issues relating to the circuit court's decision on summary judgment.

¶ 4. In his appellant's brief in appeal no. 98-2853, Puchner argues that the circuit court wrongly dismissed his defamation action. These arguments relate to issues that we clearly stated were outside of our jurisdiction. Under Wis. Stat. Rule 809.25(3)(c)2, an appeal is frivolous if "[t]he party... knew, or should have known, that the appeal. . . was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law." Puchner's arguments have no basis in the law of this case. His appeal is frivolous.

¶ 5. In appeal no. 98-3446, Puchner appeals from a circuit court order enjoining him from having contact with Hepperla. Puchner's appellant's brief is filled with vindictive and scurrilous attacks upon the circuit court judge, other circuit court judges, Hepperla and her counsel. The brief is offensive, particularly as to Hepperla, against whom it levels an irrelevant but serious criminal allegation without any foundation or support. We need not countenance scurrilous and inappropriate briefs. See A.J.N. v. W.L.D., 167 Wis. 2d 315, 344, 481 N.W.2d 672 (Ct. App. 1992), aff'd, 174 Wis. 2d 745, 498 N.W.2d 235 (1993), or briefs which are offensive in content. Therefore, we strike the brief and do not reach the merits of the appeal. In the absence of an acceptable brief, the appeal is frivolous under Wis. Stat. Rule 809.25(3).

¶ 6. Having deemed both of Puchner's appeals frivolous, we turn to the sanctions to be imposed. Under Wis. STAT. Rule 809.25(3)(a), when an appeal is found to be frivolous, we "shall award to the successful party costs, fees and reasonable attorney fees . . . ." incurred in litigating the appeal. We do so and remand to the circuit court for a determination of the costs, fees and reasonable attorney's fees incurred by the respondents in these two appeals. See Minniecheske v. Griesbach, 161 Wis. 2d 743, 746, 468 N.W.2d 760 (Ct. App. 1991). To make this sanction effective and meaningful and in recognition that Puchner has litigated frequently, unsuccessfully, frivolously and to harass Hepperla, we bar Puchner from commencing proceedings in this court and the circuit court arising from, relating to or involving Hepperla until the costs, fees and reasonable attorney's fees are paid in full.

¶ 7. Frivolous actions hinder a court's ability to function efficiently and effectively and to fairly administer justice to litigants who have not brought frivolous actions. A court may exercise its inherent power to ensure that it "functions efficiently and effectively to provide the fair administration of justice," City of Sun Prairie v. Davis, 226 Wis. 2d 738, 749-50, 595 N.W.2d 635 (1999), and to control its docket with economy of time and effort, Rupert v. Home Mutual Insurance Co., 138 Wis. 2d 1, 7, 405 N.W.2d 661 (Ct. App. 1987). A court faced with a litigant who brings frivolous litigation has the authority to limit that litigant's access to the court. Minniecheske, 161 Wis. 2d at 748. Otherwise, such a litigant may be undeterred from bringing frivolous litigation. See id.

¶ 8. "[W]hile persons have a constitutional right to access to the courts, that right is neither absolute nor unconditional." Village of Tigerton v. Minniecheske, 211 Wis. 2d 777, 785, 565 N.W.2d 586 (Ct. App. 1997). We think this is particularly true where a litigant has been found to commence litigation for the purpose of harassment. In appeal no. 98-2853, the circuit court determined that Puchner's defamation action was frivolous under WlS. STAT. § 814.025(3) (1997-98). The court found that the defamation action and Puchner's other proceedings and filings "were part of a counterattack by [Puehner] bent on harassing and punishing Hepperla and her attorney for the post-[divorce] judgment proceedings." The court ruled that the defamation action was "commenced in bad faith for purposes of harassing and punishing another contrary to Section 814.025(3)(a)." Therefore, the court ordered Puehner to pay costs and actual attorney's fees to Hepperla.

¶ 9. The records of this court reflect the extent to which Puehner has invoked the scarce resources of this court in his postdivorce disputes involving Hepperla. Puchner's brief in appeal no. 98-3446 is an example of his use of the courts to harass Hepperla. Barring Puehner from involving Hepperla in litigation until the sanction is paid promotes the efficient functioning of the courts and is narrowly tailored to punish Puehner for pursuing frivolous litigation and to deter him from doing so in the future. See Minniecheske, 161 Wis. 2d at 748.

¶ 10. The clerk of' this court is instructed to return unfiled any document submitted by Puehner relating to any matter arising from, relating to or involving Hepperla. On remand, the circuit court shall enter whatever order is necessary to give direction to the clerk of the circuit court relating to this opinion's prohibition on future filings by Puchner. The clerk of this court will resume accepting Puchner's documents for filing if the documents are accompanied by an order of the circuit court indicating that Puchner has paid the costs, fees and reasonable attorney's fees awarded by the circuit court on remand.

By the Court. — Orders affirmed and causes remanded with directions.

       On our own motion, we consolidate these appeals for disposition. WlS. STAT. Rule 809.10(3) (1999-2000). All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The respondents filed motions with their respondents' briefs to have these appeals deemed frivolous. WlS. STAT. RULE 809.25(3)(a).

       The final case, appeal no. 98-1597 from a Milwaukee county circuit court, is briefed and awaiting decision in the court of appeals.

       Bruce O'Neill is Hepperla's counsel. Jacqueline Hepperla is Hepperla's mother.

       We acknowledge that Puchner has two other appeals pending in this court, Hepperla v. Puchner, appeal no. 00-3360, and Puchner v. Hepperla, appeal no. 00-3361. Puchner may continue to litigate these appeals because they were commenced prior to the date of this opinion. However, Puchner is warned that these appeals are subject to a review for frivolousness and the imposition of monetary and other sanctions if they are deemed frivolous.

      Attorney O'Neill represented both Hepperla and her mother in the defamation action.

       Puehner is not barred from filing documents in the circuit court and this court responding to any action commenced by Hepperla or any criminal proceeding commenced against him, or seeking habeas corpus relief for himself or challenging incarceration.