text:
    Donna Walag and William Crockett, Representatives of the Petitioners for the Incorporation of the Village of Powers Lake, Petitioners-Appellants, v. Wisconsin Department of Administration, Respondent-Respondent, Town of Randall, Interested Party-Respondent, Town of Bloomfield, Interested Party.
    Court of Appeals

      No. 00-3513.

      Submitted on briefs July 18, 2001. —
    Decided August 22, 2001.

    2001 WI App 217
    (Also reported in 634 N.W.2d 906.)

      On behalf of the petitioners-appellants, the cause was submitted on the briefs of Patrick J. Hudec and Gabrielle Boehm of Hudec Law Offices, S.C. of East Troy.
    On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and F. Thomas Creeron III, assistant attorney general.
    On behalf of Town of Randall, Interested Party, a brief was filed by Larry Steen of Larry Steen Law Office of Elkhorn.
    Before Nettesheim, PJ., Brown and Anderson, JJ.
   NETTESHEIM, PJ.

¶ 1. Donna Walag and William Crockett, representatives of the petitioners for the Incorporation of the Village of Powers Lake (the petitioners), appeal from a decision of the Wisconsin Department of Administration (the Department) denying their petition for the incorporation of the proposed Village of Powers Lake. The Department determined that the petitioners' proposed village failed to meet the minimum requirements of incorporation as set forth in Wis. Stat. § 66.016(l)(a) (1997-98). We conclude that there is substantial evidence to sustain the Department's finding that the proposed village lacks homogeneity, compactness and a reasonably developed community center. We uphold the Department's determination, giving great weight to its statutory interpretation and conclusions of law.

BACKGROUND

¶ 2. This is the petitioners' fifth attempt since 1990 to incorporate the proposed Village of Powers Lake. The proposed village lies within the towns of Randall, Bloomfield and Wheatland and falls within both Kenosha and Walworth counties. The present petition was filed in Kenosha county on December 17, 1993. The circuit court referred the petition to the Department for a public hearing. The Town of Randall unsuccessfully appealed the circuit court's decision to refer the matter for public hearing. Walag v. Town of Randall, 213 Wis. 2d 424, 570 N.W.2d 623 (Ct. App. 1997).

¶ 3. The Department conducted a public hearing on the petition on May 12, 1998, during which it heard testimony from numerous witnesses and considered evidence relevant to whether the proposed Village of Powers Lake fulfills the statutory requirements of incorporation pursuant to Wis. Stat. § 66.016.

¶ 4. On October 15, 1999, the Department issued its written determination. The Department found that the petition did not meet the criteria for the incorporation of a village pursuant to Wis. Stat. § 66.016(l)(a). Specifically, the Department found that the proposed village lacked homogeneity, compactness and a reasonably developed community center. The Department dismissed the petition. Upon review, the circuit court upheld the Department's decision. The petitioners appeal.

DISCUSSION

1. Standard of Review

¶ 5. We review the Department's decision, not that of the circuit court. Thompson v. DPI, 197 Wis. 2d 688, 697, 541 N.W.2d 182 (Ct. App. 1995). "Our scope of review is identical to that of the [circuit] court." Id. As we have explained:

A different standard of review for agency decisions is applied for questions of law and questions of fact. If presented with a question of fact, we employ the "substantial evidence" standard. Substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. An agency's decision may be set aside by a reviewing court only when, upon examination of the entire record, the evidence, including the inferences therefrom, is such that a reasonable person could not have reached the decision from the evidence and its inferences.
If the issue presents a question of law, we must "set aside or modify the agency action if [we] find[] that the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action, or [we] shall remand the case to the agency for further action under a correct interpretation of the provision of law." To this end, we apply one of three levels of deference to the conclusion of the agency: "great weight," "due weight" or "de novo."
The great weight standard is the highest degree of deference. It is applied when the agency is charged with administration of the statute at issue, the agency's interpretation is based on "its expertise or specialized knowledge," the interpretation provides "uniformity and consistency in the application of the statute," and the agency conclusion or interpretation is "long standing." If the foregoing criteria are met, we will sustain the agency's interpretation even if an equally or more reasonable interpretation is offered.

Sea View Estates Beach Club, Inc. v. DNR, 223 Wis. 2d 138, 148-49, 588 N.W.2d 667 (Ct. App. 1998) (citations omitted).

¶ 6. The parties dispute the standard of review to be applied in this case. The petitioners contend that the Department's decision is not entitled to the great weight level of deference because it has failed to apply Wis. Stat. § 66.016(l)(a) consistently. We reject the petitioners' argument.

¶ 7. The Department is charged with the administration of Wis. Stat. § 66.016 pursuant to Wis. Stat. § 66.014(9). The Department has expertise and specialized knowledge in the area of development. Its application of § 66.016(l)(a) is "long standing" and it has consistently required that a proposed village must be homogenous, compact and have a reasonably developed community center. We conclude that the Department's determination is entitled to great weight deference.

2. Village Incorporation Standards, Wis. Stat. § 66.016

¶ 8. Wisconsin Stat. § 66.016(1) sets forth the standards to be applied by the department prior to approving a proposed incorporation:

Standards to be applied by the department.
(1) The department may approve for referendum only those proposed incorporations which meet the following requirements:
(a) Characteristics of territory. The entire territory of the proposed village or city shall be reasonably homogenous and compact, taking into consideration natural boundaries, natural drainage basin, soil conditions, present and potential transportation facilities, previous political boundaries, boundaries of school districts, shopping and social customs. An isolated municipality shall have a reasonably developed community center, including some or all of such features as retail stores, churches, post office, telecommunications exchange and similar centers of community activity.
(b) Territory beyond the core. The territory beyond the most densely populated one-half square mile specified in s. 66.015(1) or the most densely populated square mile specified in s. 66.015(2) shall have an average of more than 30 housing units per quarter section or an assessed value, as defined in s. 66.021(l)(a) for real estate tax purposes, more than 25% of which is attributable to existing or potential mercantile, manufacturing or public utility uses. The territory beyond the most densely populated square mile as specified in s. 66.015(3) or (4) shall have the potential for residential or other urban land use development on a substantial scale within the next 3 years. The department may waive these requirements to the extent that water, terrain or geography prevents such development.

In addition to complying with each of the requirements of § 66.016(1), a proposed incorporation must also be in the public interest as determined by the department upon consideration of four factors: tax revenue, level of governmental services, its impact on the remainder of the town and its impact on the metropolitan community. Sec. 66.016(2).

¶ 9. Prior to the revision of Wis. Stat. § 66.016 in 1959, see Laws of 1959, ch. 261, § 5, there were no requirements as to the "characteristics" of a proposed village. Rather, the incorporation statute required only a minimum area of land and density of population. See Wis. Stat. § 66.016 (1957). If a dispute arose, the courts employed the "village-in-fact" test established in State ex rel. Town of Holland v. Lammers, 113 Wis. 398, 417, 86 N.W 677 (1902), which required that a village exist in fact prior to its incorporation. See Dremel v. L.L. Freeman, Inc., 9 Wis. 2d 592, 598, 101 N.W.2d 659 (1960) ("the court must. . . determine whether the entire area proposed to be incorporated is a village in fact under the standards prescribed in . . . hammers"); Gotfredson v. Town of Summit, 7 Wis. 2d 400, 402, 97 N.W.2d 189 (1959) (discussing the village-in-fact standard); Gotfredson v. Town of Summit, 270 Wis. 530, 532, 72 N.W.2d 544 (1955) ("[t]he incorporation of a village can occur only when the affected territory and population constitute a village in fact"); Town of Brookfield v. Beisber, 267 Wis. 157, 163, 64 N.W.2d 874 (1954) (recognizing the village-in-fact standard).

¶ 10. In 1959, the urban problems committee presented a report to the legislature and to the governor addressing problems confronting city and village governments resulting from urban expansion. The committee's task in part was "[t]o consider and recommend such revisions in the statutes as are deemed necessary to aid in the solution of urban expansion problems." Report of the Interim Urban Problems Committee to the 1959 Wisconsin Legislature, [Wisconsin Legislative Council] p. iii (1959). In examining then existing law and suggesting changes, the committee noted, "There is no precise statutory definition of the type of land which reasonably could be considered municipal in character, and thus logically eligible for incorporation. Without such guide-posts some < areas have been incorporated which lack the characteristics normally associated with village or city government." Id. at 9-10. The committee proposed changes to existing law noting, "The fundamental change made by the committee ... is contained in s. 66.016 which sets forth the standards to be applied by the director of regional planning in reviewing proposed incorporations. All in-corporations must be 'reasonably homogenous and compact' and must evidence a pattern of significant land development." Report at 15.

¶ 11. In 1959, the legislature adopted the "community character" standards set forth in Wis. Stat. § 66.016(l)(a). Since the enactment of those standards, the required characteristics of a proposed village, including that it be reasonably homogenous and compact, have been governed by statute and evaluated by the department.

3. Substantial Evidence Standard

¶ 12. The Department determined that the evidence relevant to the incorporation of the proposed Village of Powers Lake demonstrated a lack of homogeneity, compactness and a reasonably developed community center and therefore the proposed village did not fulfill the requirements set forth in Wis. Stat. § 66.016(l)(a). The petitioners dispute the Department's findings of fact.

¶ 13. In reviewing the Department's findings, we employ the "substantial evidence" standard. Substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. An agency's decision may be set aside by a reviewing court only when, upon examination of the entire record, the evidence, including the inferences therefrom, is such that a reasonable person could not have reached the decision from the evidence and its inferences. Sea View Estates, 223 Wis. 2d at 148.

¶ 14. The Department's determination was extremely thorough, addressing in detail its findings with respect to each aspect of Wis. Stat. § 66.016(l)(a). We set forth below the Department's findings with respect to the petition's shortcomings.

¶ 15. With respect to transportation, the Department noted that "[transportation systems are an important indication of compactness and homogeneity." In examining the street and highway system in the proposed village area, it found that the proposed village's roadways do not readily connect the commercial center to residential developments in its southern portion and that these residential areas are more connected to the commercial and cultural opportunities of the neighboring communities of Twin Lakes and Genoa City. Significantly, it found that "the road system is geared more towards linking the area to external locations than it is to provide internal movement. In fact, the roads seem designed to prevent internal travel." In support of its finding, the Department cited to its observations that some internal roads are very narrow and the gravel surface is washed out and that there are no trespassing signs throughout subdivisions warning that the roads are not public. The Department concluded that the proposed village's transportation system lacked homogeneity and compactness.

¶ 16. In addition, based on information obtained from the Kenosha County Department of Planning and Development and the town of Wheatland clerk, the Department noted that building trends continue to move away from commercial development toward single-family residences. Due to the lack of commercial employment opportunities other than seasonal opportunities relating to taverns, restaurants and recreation, the Department made the inevitable deduction that it is necessary for most full-time residents to travel outside of the proposed village area to seek employment. Thus, the Department concluded that "employment patterns do not support homogeneity or compactness requirements."

¶ 17. Next, the Department devotes a large part of its written determination to the shopping and social customs of the proposed village. The Department found that the primary land use in the proposed village is overwhelmingly residential. There is no definite shopping area and there is only one church which does not operate during the winter months. While there are taverns, restaurants and resort businesses such as boat rentals or sales, the Department found that there are no businesses which attempt to meet the day-to-day needs of the residents such as grocery stores, auto repair shops, banks, professional offices, pharmacies, medical clinics or barber shops. While the petitioners argue that there is a tavern which meets the day-to-day needs of the residents by carrying a limited stock of food items in its cooler, the Department found that the tavern does not stock nearly enough food to meet the daily needs of the proposed village residents. In sum, the Department determined that the proposed village is "a group of neighborhoods or subdivisions on three different lakes with no shopping area which can satisfy the daily needs of its residents."

¶ 18. The Department also found a "lack of social cohesion across the proposed village area." Although it identified several social groups, it found that most of the social organizations "have unknown memberships or memberships so low they might be more appropriately considered as gatherings of friends and neighbors." In addition, it found that the memberships of many of the organizations in the proposed village are comprised heavily of out-of-town residents. Although the petitioners argued that the lake and lakeshores provide a focal point for social interaction, the Department disagreed, finding that the lakeshores are almost entirely privately owned, forcing many area residents to seek social and recreational opportunities elsewhere.

¶ 19. In looking to other social outlets in the proposed village, the Department noted the lack of schools and churches in the proposed village. It noted that the proposed village does not have any schools within its boundaries but would include portions of three high school districts and three elementary school districts. It concluded that "the mere fact that students and parents are pulled in three separate directions for education reflects on the disparity and fragmentation of social customs in the area." Because the church is seasonal in operation, the Department concluded that residents who worship regularly must do so outside of the proposed village. Without the opportunity for social activities that often attach to schools and churches, the Department concluded that "these social and cultural ties must lie primarily elsewhere."

¶ 20. Finally, the Department considered the requirement that a proposed village have a "reasonably developed community center." Wis. Stat. § 66.016(l)(a). It rejected the petitioners' arguments that Powers Lake itself is the most important focal point of the area and forms a reasonably developed community center. Paragraph (l)(a) specifically provides that the "community center" should include some or all of the following features — "retail stores, churches, post office, telecommunications exchange and similar centers of community activity." The Department determined that the question is whether any of the lakeshores in the proposed village could constitute a community center. Again, because the lakeshore areas are in large part privately owned, the Department determined that they did not constitute a community center.

¶ 21. While it is undisputed that the proposed village center has a post office, taverns and a seasonal church, the Department did not agree with the petitioners that the post office and taverns are well-established community meeting places. It observed that permanent residents would not be likely to frequent the post office because most would have home delivery. With respect to the taverns, the Department found these to cater more to recreational or seasonal visitors than permanent residents and that they did not provide goods necessary to meet the residents' daily needs.

¶ 22. In sum, the Department found that "[t]he proffered community center falls short in almost every way. There is simply no way that this area can meet the daily needs of the residents. Development along [the proposed village center] is mainly restaurant/bars. It should not be otherwise characterized so as to meet the requirements of [Wis. Stat.] § 66.016(l)(a)."

¶ 23. In reviewing the Department's decision, we have examined the evidence presented at the May 12 hearing, including a report submitted by the petitioners that evaluates the proposed incorporation, and the hearing transcript. While the petitioners maintain that there was testimony to support a finding of homogeneity, compactness and a reasonably developed community center, there was ample testimony and evidence to the contrary. Based on our review of the entire record, we conclude that there is substantial evidence, in addition to that evidence discussed above, which supports the Department's determination regarding the relevant characteristics of the proposed village pursuant to Wis. Stat. § 66.016(l)(a).

4. The Application ofWis. Stat. § 66.016(1) (a)

¶ 24. With respect to the Department's application of the incorporation statute, the parties stipulate that the dispute in this case is limited to the requirements ofWis. Stat. § 66.016(l)(a).

¶ 25. The petitioners contend that the provision requiring the proposed village to be reasonably homogenous and compact should be applied with flexibility and with the consideration of "societal changes wrought by interstate highways, the internet, and warehouse shopping." In so arguing, the petitioners rely on Got-fredson, in which the court held that it is not essential that a proposed village have within its boundaries a village store or school. Gotfredson, 7 Wis. 2d at 403. The petitioners' reliance on Gotfredson is misplaced. Gotfredson was decided prior to the enactment of the community characteristic standards of Wis. Stat. § 66.016(l)(a) in 1959 and was addressing the "village-in-fact" standard. While Gotfredson is relevant to the history of incorporation, it does not bear upon the application of current law.

¶ 26. Rather, it is evident from the Department's written determination that it considered many incorporation decisions made after 1959 as providing guidance on the issue of homogeneity, compactness and a reasonably developed community center. It found that these decisions supported its conclusion that the proposed village fails to meet the requirements of Wis. Stat. § 66.016(l)(a). We similarly conclude that these decisions support the Department's application of § 66.016(l)(a) in this case.

¶ 27. In Town of Pleasant Prairie v. Johnson, 34 Wis. 2d 8, 148 N.W.2d 27 (1967), the department found that the proposed village failed to meet the requirements of Wis. Stat. § 66.016. The department found that the proposed village's transportation system detracted from the proposed village's compactness and homogeneity as it facilitated the functioning of the area as a part of a neighboring area. Town of Pleasant Prairie, 34 Wis. 2d at 13. Here, the Department similarly found that the proposed village's transportation system was "externally" focused thus contributing to a finding of a lack of homogeneity and compactness.

¶ 28. Later, in Town of Pleasant Prairie v. Dep't of Local Affairs & Dev., 113 Wis. 2d 327, 333, 334 N.W.2d 893 (1983), the court observed that the requirement of reasonable homogeneity "shows a legislative concern that the area to be incorporated have a reasonably consistent and uniform composition. The standards set forth in sec. 66.016(1), Stats., indicate that the entire area be a community, that it have common interests that are internally shared." As applied to this case, the Department reasonably concluded that the proposed village failed to meet the requirements of homogeneity.

¶ 29. With respect to the requirement of a reasonably developed community center, the Department noted in its determination that the meaning of "community center" and the application of that requirement by the Department have previously been examined by the courts.

¶ 30. In Schmidt v. Dep't of Local Affairs & Dev., 39 Wis. 2d 46, 62, 158 N.W.2d 306 (1968), the court upheld the department's determination based on the department's findings quoted below:

Analysis... reveals that there is no dominant community center in the area proposed to be incorporated which might serve as a focal point for the Town's social and business activities. While there are some such facilities in existence, such as two post offices, firehouses, grocery stores, taverns, service stations, and small retail stores; there are no banks, professional offices, medical facilities, pharmacies, or modern shopping centers.
Considering, then, the characteristics of the territory, and upon finding that development in the area proposed to be incorporated is scattered, that the proposed boundaries are irregularly shaped, that it lies in two separate drainage areas, that it lies in two high school districts, that a full range of community facilities such as banks, medical services and modern shopping centers are not available within any part of the area that could be described as its community center, it is the opinion of the Director that the entire territory of the proposed village is not reasonably homogenous and compact.

¶ 31. Similarly, in Scharping v. Johnson, 32 Wis. 2d 383, 392, 145 N.W.2d 691 (1966), the court cited the following findings made by the department:

Also of concern is the requirement that the area have a reasonably developed community center which is the focal point for the common social, economic and cultural ties that bind the community. It is the opinion of the Director that the crossroads facilities ... do not constitute a reasonably developed community center. The fact that the only church in the core is now empty and unused would suggest that community activities occur elsewhere. There is no facility for public gatherings, no park, no town square or municipal center, no bank, no telephone exchange. The crossroads development which exists is too limited in facilities to function effectively as a community center.

Again, the court upheld the department's determination.

¶ 32. In reviewing the past determinations of the department and the courts, the Department determined that the proposed Village of Powers Lake failed to meet the requirements of homogeneity, compactness and a reasonably developed community center. The Department's determination is reasonable and consistent with prior determinations.

¶ 33. Finally, the petitioners devote much of their brief reviewing those requirements of Wis. Stat. § 66.016 that they did meet and emphasizing the benefits of incorporation for the proposed village area. Nevertheless, the Department determined that the petition failed to meet the minimum requirements of § 66.016(l)(a). It is well established that in order to qualify for incorporation, an area must meet all six statutory requirements set forth in § 66.016(1) and (2). Redford v. DOD, 186 Wis. 2d 515, 521, 521 N.W.2d 453 (Ct. App. 1994). The department may dismiss an incorporation petition if it determines that one of the six requirements was not met. Id. at 523.

¶ 34. The Department acknowledged that the incorporation of the proposed village would resolve problems related to the fact that the area is bisected by the towns of Randall, Bloomfield and Wheatland and by Kenosha and Walworth counties. However, whether an incorporation would benefit the proposed village area is not the standard adopted by our legislature and set forth in Wis. Stat. § 66.016. We reject the petitioners' request that we depart from existing case law and the explicit statutory requirements of incorporation. We further note that the petitioners' concerns that the current standards do not address present day realities are better addressed to the legislature.

CONCLUSION

¶ 35. We conclude that the Department's findings with respect to the requirements of Wis. Stat. § 66.016(l)(a) — homogeneity, compactness and a reasonably developed community center — are supported by substantial evidence in the record. Giving great weight to the Department's interpretation and application of § 66.016(l)(a), we uphold the Department's determination that the proposed village failed to meet the minimum requirements of incorporation as set forth in § 66.016(l)(a).

By the Court. — Judgment affirmed.

       Pursuant to 1999 Wis. Act 150, effective January 1, 2001, Wis. Stat. ch. 66 was reorganized and renumbered. Wisconsin Stat. § 66.016 (1997-98), the specific provision in question, has been renumbered as Wis. Stat. § 66.0207. 1999 Wis. Act 150, § 38. These changes were not substantive and do not affect our decision on- appeal. We will refer to the statutes as numbered at the time of this case. Therefore, the statutory references are to the 1997-98 statutes unless otherwise indicated.

       The town of Randall and the town of Bloomfield are interested parties to this action. The town of Randall has participated in this appeal and has filed a brief as an interested party-respondent.

       A "village-in-fact" was historically defined as "any small assemblage of houses, for dwelling or business, or both, in the country, whether situated upon regularly laid-out streets and alleys or not. A compact center or nucleus of population was required and adjacent lands reasonably appurtenant and necessary for future growth, always considering the surroundings ... and prospects of future prosperity." Gotfredson v. Town of Summit, 7 Wis. 2d 400, 402, 97 N.W.2d 189 (1959).

       Several residents testified that they pick up an item on occasion but do their regular shopping in neighboring areas. For example, one of the residents in favor of incorporation testified before the Department that he does his grocery shopping "elsewhere" because of the fine facilities offered. He stated, "There used to be a grocery store in . ,. Powers Lake. Unfortunately, it is now a multi-family house. ... In this day and age, I don't think [a grocery store] could support itself because of the multiplicity of supermarkets we have [in neighboring areas]."

       We note that the Department considered the petitioners' evidence that at least ten new businesses had developed in the proposed village area since 1991. However, none of the businesses were located in the proposed "community center."

       The report, dated May 12, 1998, was prepared by Patrick J. Meehan of Meehan & Company, Inc., which specializes in planning, zoning and design. The report is entitled, "An Evaluation of the Proposed Incorporation of the Powers Lake Community into a 'Village' under Wisconsin Statutes Section 66.016."

       The petitioners' argument echoes the supreme court's observation in Gotfredson. There the court noted,
      While it may have been usual and customary fifty years ago, or twenty years ago, for a community to grow around the market or place of employment, school, church, and perhaps the village blacksmith, due to limitations in the means of transportation, this is not so today. Decentralization is the trend of today. Areas are developing exclusively devoted to residential purposes. The construction of superhighways and the technical improvement in the manufacture of automobiles have made it possible for families to live in one community, be employed in another, and seek recreation in still others.

        Gotfredson, 7 Wis. 2d at 403.


source: Caselaw Access Project

author: VERGERONT, EJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Joel O. Peterson, Defendant-Appellant.

    Court of Appeals

      No. 01-0116-CR.

      Submitted on briefs July 9, 2001. —
    Decided August 23, 2001.

    2001 WI App 220
    (Also reported in 634 N.W.2d 893.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, Asst. State Public Defender, of Madison.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Sally L. Wellman, Asst. Attorney General.
    Before Vergeront, EJ., Dykman and Roggensack, JJ.

       Petition to review denied 10-23-01.

   VERGERONT, EJ.

¶ 1. Joel Feterson challenges the repeater penalty portions of his sentences for two counts of second-degree intentional homicide, to which he pleaded guilty as a repeater as part of a plea agreement. He contends that the repeater portion of each sentence is void because, at the time he entered his pleas of not guilty at the arraignment, neither the complaint nor the information charged him as a repeater as required by Wis. Stat. § 973.12(1) (1999-2000). Therefore, he asserts, the trial court lacked authority to sentence him as a repeater, even though the information was amended pursuant to the plea agreement to allege the prior convictions, and even though he entered guilty pleas to the charges in the amended information and agreed the repeater allegations were accurate.

¶ 2. We conclude that Wis. Stat. § 973.12(1) does not prohibit Feterson from agreeing, after arraignment and entry of a not guilty plea and as part of a plea agreement, to amend the information to add repeater allegations. We therefore reject his argument that the trial court lacked the authority to sentence him as a repeater and that the repeater penalty portions of his sentences are void. Accordingly, we affirm the judgment of conviction and sentences and the order denying his postconviction motion.

BACKGROUND

¶ 3. The complaint, filed on August 23, 1999, charged Peterson with first-degree intentional homicide of his girlfriend, Stacie Fankhauser, contrary to Wis. Stat. § 940.01(1), and with hiding her corpse with intent to conceal a crime, contrary to Wis. Stat. § 940.11(2). The first crime carries a punishment of mandatory life imprisonment, Wis. Stat. § 939.50(3)(a), and the second, a Class D felony, carried at the time a maximum fine of $10,000 and/or five years in prison. Section 939.50(3)(d) (1997-98). The court appointed counsel to represent Peterson and Peterson waived a preliminary hearing. An information filed on September 28, 1999, charged the two offenses alleged in the complaint and, at an arraignment on the following day, Peterson entered a not guilty plea to each charge. Neither the complaint nor the information alleged that Peterson was a repeater under Wis. Stat. § 939.62.

¶ 4. On March 14, 2000, Peterson appeared in court with counsel at a scheduled plea hearing. The prosecutor explained to the court that the parties had reached an agreement whereby the State would file an amended information charging two counts of second-degree intentional homicide (one for Fankhauser and one for her unborn child), each count having a maximum penalty of fifty years imprisonment based on Peterson being an habitual criminal, and one count of hiding a corpse. Peterson would plead guilty to these charges, the parties would request a presentence investigation, and each party would be free to argue at sentencing. At the court's request, the prosecutor read the amended information into the record. The amended information charged Peterson with one count of intentionally causing the death of another contrary to Wis. Stat. § 940.05(l)(b), with a maximum penalty enhanced for habitual criminality under Wis. Stat. § 939.62(l)(c) of fifty years (Count 1), and one count of intentionally causing the death of an unborn child under § 940.05(2g)(b), also with a maximum penalty enhanced for habitual criminality of fifty years (Count 2). The amended information alleged three prior convictions for felony bail jumping, with dates, case numbers, and county. The amended information also contained as Count 3 the same offense of hiding a corpse that was alleged in the complaint and stated the maximum penalty for this offense — $10,000 fine and/or five years imprisonment.

¶ 5. The court permitted the filing of the amended information. The court ascertained that there was nothing in the amended information that came as a surprise to defense counsel, he had had a chance to go over it with Peterson, and Peterson was prepared to answer it. The court asked Peterson whether he understood the charge in Count 1 and the maximum potential penalty, and asked the same questions with respect to Count 2. Peterson answered yes to all four questions. After asking Peterson other questions relevant to the entry of his plea but not relevant to this appeal, the court again asked Peterson if he understood the charges and the maximum potential penalties, and he answered yes. The numerous questions that followed to ascertain Peterson's understanding of the plea agreement included the question whether Peterson understood that the court could decide to impose as a sentence up to the 105 total years available, and Peterson answered yes.

¶ 6. After the court found that Peterson understood the elements of all three counts in the amended information, the prosecutor asked permission to file the certified judgments of the prior convictions. Defense counsel stated he had no objection and the court received them. The court then read the date and charge contained in each of the certified judgments and, for each, asked Peterson whether he agreed that he was convicted on that date of that charge; Peterson answered yes with respect to each conviction. The court asked Peterson if he was satisfied with the record of his repeater allegation, and Peterson answered yes.

¶ 7. Based on these and other questions, the court accepted Peterson's guilty pleas and entered a judgment of conviction on each of the three counts.

¶ 8. Sentencing took place on May 30, 2000. The court sentenced Peterson to fifty years each on Counts 1 and 2, consecutive to one another, and five years on Count 3, concurrent to Count 2. Subsequently, Peterson filed a motion asking the court to commute the sentences on Counts 1 and 2 to forty years each because the repeater enhancement of ten years on each was void. Peterson contended that Wis. Stat. § 973.12(1), as construed by the supreme court in State v. Martin, 162 Wis. 2d 883, 902-07, 470 N.W.2d 900 (1991), required that the complaint or information allege Peterson's repeater status before the September 29, 1999 arraignment and acceptance of his not guilty pleas. Section 973.12(1) provides in relevant part:

Sentence of a repeater or persistent repeater. (1) Whenever a person charged with a crime will be a repeater or a persistent repeater under s. 939.62 if convicted, any applicable prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea. The court may, upon motion of the district attorney, grant a reasonable time to investigate possible prior convictions before accepting a plea. If the prior convictions are admitted by the defendant or proved by the state, he or she shall be subject to sentence under s. 939.62 unless he or she establishes that he or she was pardoned on grounds of innocence for any crime necessary to constitute him or her a repeater or a persistent repeater.

¶ 9. At oral argument on his motion, Peterson's postconviction counsel agreed with the court that the homicide charges in the amended information, including the repeater enhancements, represented a reduction from the homicide charges in the complaint; and he agreed that the amended information contained no surprise to Peterson. Postconviction counsel also stated that he had no basis for arguing that defense counsel did not act in a completely appropriate way, and he agreed he had found no flaw in the court's taking of the pleas, explaining to Peterson what was going on, and ascertaining that Peterson entered into the plea agreement knowingly, voluntarily, and intelligently. Even so, postconviction counsel argued, Wis. Stat. § 973.12(1), as construed by Martin, required the filing of a new complaint containing the repeater allegations before Peterson pleaded to them, and Peterson could not waive that defect because it was a matter of the court's subject matter jurisdiction.

¶ 10. The trial court denied the motion. The court concluded that the purpose of Wis. Stat. § 973.12(1), as articulated in Martin, was to prevent a defendant from being unfairly surprised by the addition of an enhanced penalty for repeater status, and that did not occur in this case.

DISCUSSION

¶ 11. On appeal, Peterson contends as he did in the trial court that the supreme court's construction of Wis. Stat. § 973.12(1) in Martin is controlling in this case and prohibits the amendment to the information to add repeater allegations. Peterson asserts that the trial court's focus on the lack of unfairness or prejudice to him is incorrect because the supreme court interpreted § 973.12(1) to prohibit an amendment adding repeater allegations to the information after a defendant has pleaded not guilty at an arraignment no matter what the circumstances — even if the defendant agrees to the amendment, benefits from it, and enters a plea to the charges in the amended information.

¶ 12. Because a resolution of this issue requires us to construe Wis. Stat. § 973.12(1) as applied to a set of undisputed facts, it presents a question of law, which we review de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997).

¶ 13. The purpose of statutory interpretation is to discern the intent of the legislature. Id. at 406. To do so, we first consider the language of the statute. If the language of the statute clearly and unambiguously sets forth the legislative intent, we apply that to the case at hand and do not look beyond the statutory language to ascertain its meaning. Id. A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. Id. If a statute is ambiguous, we look to the scope, history, context, subject matter, and object of the statute in order to ascertain legislative intent. Id. Whether a statute is ambiguous is a question of law. Awve v. Physicians Ins. Co. of Wis., Inc., 181 Wis. 2d 815, 822, 512 N.W.2d 216 (Ct. App. 1994).

¶ 14. In Martin, the supreme court construed Wis. Stat. § 973.12(1) in the context of the State's motions to amend an information to add repeater allegations after the defendants had pleaded not guilty at arraignment and before the completion of their trials. The trial courts granted the motions over the defendants' objections. Because Martin is central to Peterson's position, we discuss it in some detail.

¶ 15. Before the supreme court, the State argued that Wis. Stat. § 973.12(1) was ambiguous because it did not expressly prohibit a trial court from allowing a repeater amendment after arraignment and plea acceptance; the State asked the supreme court to allow trial courts to exercise discretion on whether to permit repeater amendments after a defendant is arraigned, and to permit these amendments when there is no prejudice to the defendant. Martin, 162 Wis. 2d at 892. Under this proposed construction, the statute addresses only when a prosecutor may amend an information without leave of court and does not address when a trial court may allow an amendment. Id.

¶ 16. The supreme court rejected this construction. The court reasoned that the second sentence of Wis. Stat. § 973.12(1), which expressly allows the State to seek an extension of time from the trial court to investigate prior convictions "before acceptance of any plea," indicates that the trial court's ability to exercise discretion is limited to the time period prior to plea acceptance. Id. at 896. The court continued:

It would strongly appear, therefore, that the plain language of sec. 973.12(1), Stats., establishes a statutory rule: A prosecutor needs to allege a defendant's repeater status in the appropriate charging document prior to arraignment and plea. But because the statute does not directly address the post-arraignment and plea-acceptance time period, such a conclusion would essentially require the application of the rale of expres-sio unius est exclusio alterius, which in turn calls for a more thorough examination of legislative intent by looking outside the four corners of the statute. Although we conclude that sec. 973.12(1) is unambiguous as to whether a repeater amendment can be made after arraignment and plea acceptance, we examine the statutory language "in relation to its context, subject matter, scope, history, and object intended to be accomplished."

Id. (footnote omitted; citation omitted).

¶ 17. The supreme court then undertook a lengthy review of the legislative history of the statute and concluded:

[A]ny argued, though nonexistent, ambiguity has been resolved by this examination of the statutory evolution of sec. 973.12, Stats. The statutory changes make clear that the legislature has established the time of arraignment and of any plea acceptance as the cut-off point after which time a defendant can no longer face exposure to repeater enhancement for the crime set forth in the charging document and pleaded to by the defendant at arraignment. As we noted in Block v. State, 41 Wis. 2d 205, 210, 163 N.W.2d 196 (1968), when analyzing the 1965 amendment to the repeater statute:
"Being a repeater is not a crime but may enhance the punishment of the crime for which the repeater is convicted. The allegation of recidivism is put in the information in order to meet the due-process requirements of a fair trial. When the defendant is asked to plead, he is entitled to know the extent of his punishment of the alleged crime, which he cannot know if he is not then informed that his prior convictions may be used to enhance the punishment. [Emphasis supplied.]"

Id. at 900-01 (footnotes omitted).

¶ 18. With respect to the State's argument that prejudice to the defendant should be the deciding factor, the court stated:

We agree with Martin and Robles that proof of prejudice is an irrelevant consideration under sec. 973.12(1), Stats. The legislature has established a rule. Regardless of the kind of plea entered in response to the charges alleged at arraignment, the defendant's plea will be more meaningful if he or she is aware of the extent of potential punishment which ensues from a conviction of the crime.

Id. at 902-03 (footnote omitted).

¶ 19. The State also offered an alternative construction of the statute, which focused on what the State asserted was the ambiguity of the term "acceptance of any plea." Id. at 893. That term, the State contended, should be construed not to include a not guilty plea, which is entered but not accepted; it should be construed to include only a guilty and a no contest plea, which are both entered and accepted. Id. at 904. The court concluded there was no ambiguity on this point in the first sentence because of the phrase "before or at arraignment, and" which preceded "before acceptance of any plea." Id. at 905. Although the second sentence did not contain this qualifying phrase, the court reasoned that the second sentence must be read together with the first sentence; the court also decided that the term "any plea" and the legislative history previously examined showed a legislative intent to include not guilty pleas. Id. at 906-07.

¶ 20. In Peterson's argument that Martin is dis-positive here, he relies on the supreme court's ruling that Wis. Stat. § 973.12(1) is not ambiguous and on its statements that "proof of prejudice is an irrelevant consideration. . . . The legislature has established a rule." Id. at 902. However, a statute may be ambiguous in one factual setting and unambiguous in another. Reyes v. Greatway Ins. Co., 221 Wis. 2d 357, 365, 597 N.W.2d 687 (1999). "Permitting the facts of a case to gauge ambiguity simply acknowledges that reasonable minds can differ about a statute's application when the text is a constant but the circumstances to which the text may apply are kaleidoscopic." Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis. 2d 211, 612 N.W.2d 659.

¶ 21. Therefore, before we can make a reasoned decision on whether Martin answers the question of statutory construction presented in this case, we must consider the relation between the factual circumstances in Martin and those in this case. The court in Martin decided that Wis. Stat. § 973.12(1) was not ambiguous in the context of a trial court permitting the State, over the objection of the defendant, to add a repeater allegation to an information after the defendant entered a not guilty plea at arraignment. That decision does not resolve whether the statute is ambiguous in the context of a defendant agreeing as part of a plea agreement to the addition of a repeater allegation to an information after the defendant has entered a not guilty plea at an arraignment. Accordingly, we conclude that Martin does not resolve the question of statutory construction before us.

¶ 22. Neither of the parties have brought to our attention a case construing Wis. Stat. § 973.12(1) in factual circumstances similar to those in this case. Therefore, we turn to a consideration of the statutory language in light of the factual circumstances of this case. We conclude that the language could reasonably be interpreted as Peterson proposes, but that his proposal is not the only reasonable interpretation. The statute could also be reasonably interpreted not to address the situation where a defendant agrees as part of a plea agreement to a post-arraignment amendment of an information to add repeater allegations. Nothing in the statutory language indicates that the legislature contemplated such a situation; and, since the agreement of a defendant to add repeater allegations to an information as part of a plea agreement significantly changes the defendant's interests that are at stake, one could reasonably expect that the legislature would not have intended to include that situation unless it expressly indicated that intent.

¶ 23. In order to resolve the statute's ambiguity in the context of this fact situation, we consider the legislative history which the court discussed in Martin. As the court there explained, prior to the last major amendment of the statute in 1965, the trial court could impose a repeater penalty "where the prior convictions were first discovered or alleged 'at any time before execution of sentence has commenced,' 'after conviction,' or after a 'sentence has already been passed but execution thereof has not been commenced.'" Martin, 162 Wis. 2d at 899 (citation omitted). Thus, the statute in effect prior to the 1965 amendment permitted the trial court to impose a repeater penalty after a defen-, dant had been convicted based on a guilty or no contest plea to charges contained in a charging document that did not contain repeater allegations. The same was true under prior versions of the statute dating back to 1919. Id. at 898-99. In the 1965 amendment, the legislature deleted the foregoing quoted phrases; and, in place of "or otherwise brought to the attention of the court at any time before execution of sentence has commenced," the legislature added "or amendments [to the complaint, indictment or information] so alleging at any time before or at arraignment, and before acceptance of any plea." Laws of 1965, ch. 422, § 2.

¶ 24. We conclude that one important purpose of deleting the quoted phrases was to avoid the unfairness and surprise that could result when a defendant is convicted based on a guilty or no contest plea without knowing that the penalty might be later enhanced because of his repeater status. There is nothing in the legislative history of which we are aware that indicates that, when choosing to add the phrase "or amendments so alleging at any time before or at arraignment, and before acceptance of any plea," the legislature considered a situation where the defendant agreed to add repeater allegations to a charging document as part of a plea agreement, nor is there any indication the legislature intended to preclude this. Moreover, allowing a defendant to agree to amend an information to add repeater allegations as part of an agreement to plead guilty or no contest is consistent with the goal of providing the defendant with all the information about the potential punishment at the time he or she pleads guilty or no contest.

¶ 25. In addition, we can see no purpose served by interpreting the statute to prevent a defendant from agreeing to add repeater allegations to an information as part of a plea agreement. Since a defendant need not agree to that amendment, presumably a defendant will agree only when he or she perceives it is in his or her interest to do so. For example, in this case, postconviction counsel acknowledged to the trial court that the amendment to the information benefited Peterson. The requirement that guilty and no contest pleas be knowing, voluntary, and intelligent ensures that defendants will not be coerced into agreeing to the addition of repeater allegations that the State could not add unilaterally.

¶ 26. Peterson points out that under his construction of the statute, a defendant may agree to a dismissal of the complaint and the issuance of a new complaint and information with the repeater allegations and other amended charges, and then the defendant may enter the agreed upon plea. However, he does not identify any purpose served by construing the statute to require this procedure under the circumstances of this case, and we can discern none.

¶ 27. For the above reasons, we conclude that the legislature did not intend in Wis. Stat. § 973.12(1) to prohibit defendants from agreeing, after arraignment and entry of a not guilty plea and as part of a plea agreement, to amend charging documents to add repeater allegations. Accordingly, the repeater penalty portions of Peterson's sentences on Count 1 and 2 are not void and the trial court did not err in denying Peterson's motion to vacate those portions of his sentences.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       WISCONSIN Stat. § 939.62 provides in part:
      Increased penalty for habitual criminality. (1) If the actor is a repeater, as that term is defined in sub. (2), and the present conviction is for any crime for which imprisonment may he imposed, except for an escape under s. 946.42 or a failure to report under s. 946.425, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
      (a) A maximum term of one year or less may be increased to not more than 3 years.
      (b) A maximum term of more than one year but not more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 6 years if the prior conviction was for a felony.

        (c) A maximum term of more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 10 years if the prior conviction was for a felony.
      (2) The actor is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period, which convictions remain of record and unreversed.

       The penalty for a violation of Wis. Stat. § 940.05(1) and (2g), both Class B felonies, committed before December 31, 1999, was forty years each. Wis. Stat. § 939.50(3) (b) (1997-98). Thus, with the applicable repeater enhancement of ten years for each of these offenses, Wis. Stat. § 939.62(l)(c), the maximum enhanced penalty for each offense was fifty years.

       Because the allegations regarding Count 3 did not contain repeater provisions, that count is not relevant to this appeal, and we omit some references to it in our summary of the plea hearing.

       The court of appeals vacated the repeater enhancement portion of the defendants' sentences, State v. Martin, 156 Wis. 2d 399, 408, 456 N.W.2d 892 (Ct. App. 1990), and State v. Robles, 157 Wis. 2d 55, 63-64, 458 N.W.2d 818 (Ct. App. 1990), and the supreme court accepted the State's petition for review in both cases and consolidated them. State v. Martin, 162 Wis. 2d 883, 888, 470 N.W.2d 900 (1991).

       In the footnote omitted in the text, the court further explained why it was examining legislative history even though it had concluded Wis. Stat. § 973.12(1) was unambiguous:
      Section 973.12(1) is not ambiguous. We undertake an historical analysis only for the purpose of demonstrating that the legislative history makes clear that no repeater charge can be added after any plea. While legislative history cannot be used to demonstrate that a statute unambiguous on its face is ambiguous, there is no converse rule that statutory history cannot be used to reinforce and demonstrate that a statute plain on its face, when viewed historically, is indeed unambiguous.
      Martin, 162 Wis. 2d at 897 n.5.

       Laws of 1965, ch. 422, § 2.

       WISCONSIN Stat. § 959.12 (1963) provided:
      Sentence of repeater. (1) How prior conviction charged and determined. Whenever a person charged with a crime will be a repeater as defined in s. 939.62 if convicted, his prior conviction or convictions may be alleged in the complaint, indictment or information or otherwise brought to the attention of the court at any time before execution of sentence has commenced, and if such prior conviction or convictions be admitted by the defendant or proved by the state he shall be subject to be sentenced under s. 939.62 unless he shall establish that he was pardoned on grounds of innocence for any crime necessary to constitute him a repeater. If the defendant is alleged to be a repeater after conviction, the charge shall be reduced to writing unless it is admitted in open court, and the defendant may have a jury trial on that issue if it is demanded, otherwise the issue shall be tried by the court.... If sentence has already been passed but execution thereof has not been commenced before the court is informed that the defendant is a repeater, the court may set aside such sentence and resentence the defendant under s. 939.62.

       Because of our resolution of this issue, we need not decide whether the State is correct in arguing that judicial estoppel bars Peterson from arguing on appeal that the repeater enhancement portions of his sentences are void.


author: NETTESHEIM, PJ.

text:
    In re the Marriage of: Sandra Lynn Modrow, Petitioner-Respondent, v. Kim Jerome Modrow, Respondent-Appellant.
    Court of Appeals

      No. 00-1868.

      Submitted on briefs June 6, 2001. —
    Decided August 29, 2001.

    2001 WI App 200
    (Also reported in 634 N.W.2d 852.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Kim Jerome Modrow, pro se.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Carrie R. Michelson, Racine.
    Before Nettesheim, PJ., Brown and Anderson, JJ.
   NETTESHEIM, PJ.

¶ 1. Kim Jerome Modrow appeals pro se from the child support, property division, and attorney fee provisi ons of a judgment of divorce. At the time of the divorce, Kim was incarcerated for his fifth offense of operating a motor vehicle while under the influence (OWI). Kim contends that the family court erroneously exercised its discretion when it: (1) based his child support obligation on his earning capacity rather than his actual income, (2) delayed the disbursement of his property division, and (3) offset his property division by the amount of any unpaid child support accruing during his incarceration. We reject these arguments. However, we agree with Kim's further argument that the facts do not support the attorney's fees award. Finally, we reject Sandra Lynn Modrow's motion for costs and attorney's fees on appeal. We affirm in part and reverse in part.

Facts

¶ 2. Kim and Sandra were married on September 17, 1988. On February 9, 1999, Kim was arrested and charged with a fifth offense for OWI. He was subsequently sentenced to a five-year prison term on June 9, 1999. On August 18,1999, Sandra filed for divorce from Kim. Sandra additionally filed an order to show cause for a temporary order for child support for their two minor children. Kim appeared pro se in all of the trial court proceedings.

¶ 3. At the time of the temporary hearing, Kim was incarcerated and reported earnings of approximately $22 per month. The family court commissioner entered a temporary order awarding Sandra temporary legal custody and primary placement of the children and ordering Kim to pay child support in the amount of $100 per week. The family court commissioner based Kim's child support obligation on his earnings of $11.80 per hour from his full-time employment prior to his incarceration.

¶ 4. Kim requested and received de novo review of the temporary order on January 12, 2000. In a written order filed January 26, 2000, the family court found that Kim's incarceration and subsequent change in financial circumstances was the result of a voluntary and intentional act. The court ordered the existing temporary order for child support in the amount of $100 per week to remain in full force and effect until the final divorce hearing. Sandra asked that Kim contribute to her attorney's fees relating to the hearing. The court held this request open pending further proceedings.

¶ 5. The final divorce hearing was held on March 29, 2000, and the family court filed its written decision on June 25, 2000. With respect to child support, the court found that prior to Kim's incarceration, his gross monthly income was $2029.60. Despite Kim's continued incarceration, the court ordered Kim to continue paying child support in the sum of $100 per week.

¶ 6. As to the property division, the parties' primary asset was the equity in the marital residence, which was awarded to Sandra. The court ordered an equal division of the parties' marital property and then reduced Kim's portion by sums owing to Sandra for various expenses. The court ordered that Sandra make a balancing payment to Kim in the amount of $11,850.42 with interest at the rate of 8% per annum on any unpaid amount. The court also ordered that Sandra's property division payments to Kim would be offset dollar for dollar by any unpaid child support accruing during Kim's incarceration.

¶ 7. The family court also ordered Kim to contribute $300 to Sandra's attorney's fees incurred as a result of the earlier de novo review of the family court commissioner's temporary child support order.

¶ 8. Kim appeals the child support, property division and attorney's fees provisions of the judgment.

Discussion

Standard of Review

¶ 9. The division of the marital estate and the determination of the amount of child support are committed to the circuit court's discretion. Sellers v. Sellers, 201 Wis. 2d 578, 585, 549 N.W.2d 481, 484 (Ct. App. 1996). The same is true as to an attorney fees award. Bisone v. Bisone, 165 Wis. 2d 114, 123-24, 477 N.W.2d 59 (Ct. App. 1991). We will uphold the circuit court's discretionary decision if the court makes a rational and reasoned decision and applies the correct legal standard to the facts of record. Sellers, 201 Wis. 2d at 585.

Child Support

¶ 10. Kim continues his self-representation on appeal. He contends that the circuit court erred in denying his request at trial to modify the amount of child support based on his incarceration. Kim relies on Voecks v. Voecks, 171 Wis. 2d 184, 491 N.W.2d 107 (Ct. App. 1992), arguing that his incarceration constitutes a substantial change of circumstance sufficient to warrant the modification of his child support obligation pursuant to Wis. Stat. § 767.32 (1999-2000).

¶ 11. We reject Kim's reliance on Voecks. There, the court of appeals addressed whether incarceration can be a substantial change in circumstances warranting modification of a child support award set out in the original divorce judgment. Voecks, 171 Wis. 2d at 186-87. But here the family court's child support award was not the product of a review of the temporary order issued by the family court commissioner pursuant to Wis. Stat. §§ 767.23(1n) and 767.13(6). Rather, the family court's award stands or falls on its own merits based on the evidence at the trial. Therefore, the correctness of the award is not measured under the law of revision of judgments as set out in Wis. Stat. § 767.32(1m). The family court was not required to make a finding of a substantial change of circumstances pursuant to § 767.32(lm) in order to set the appropriate level of support at the time of divorce.

¶ 12. In summary, Kim's child support issue is not governed by Wis. Stat. § 767.32(lm) or Voecks.

¶ 13. Although Kim incorrectly frames his argument in terms of a modification of child support, his primary objection is that the family court failed to adequately consider his incarceration in setting child support at the final divorce hearing. Neither Kim nor Sandra cites to any Wisconsin case law that has addressed this issue, nor have we found any. However, both parties discuss Parker v. Parker, 152 Wis. 2d 1, 447 N.W.2d 64 (Ct. App. 1989), and Voecks, which address whether incarceration constitutes a substantial change of circumstances warranting modification of an existing child support order. While not directly on point, we address both cases.

¶ 14. In Parker, the parties were divorced in 1974, at which time Wayne Parker was ordered to pay $40 per week for child support. Parker, 152 Wis. 2d at 3. Twelve years later, Wayne was convicted of theft. His five-year prison sentence was stayed and he was placed on probation for five years. Id. During his probation period, Parker was found in contempt for his failure to pay child support. Id. He had accumulated arrearages of approximately $22,000. Id. Parker's probation was later revoked and he was sent to prison. Id. Parker petitioned for a suspension of his child support obligation during his incarceration. Id. The family court denied relief on the grounds that Parker's voluntary and intentional acts caused his plight. Id.

¶ 15. On appeal, we upheld the family court's ruling, holding that child support need not automatically terminate during incarceration; rather, the decision as to whether to terminate a support order is committed to the discretion of the circuit court. Id. at 6. In deciding the issue, the family court may consider the intentional nature of the crime involved, the likelihood of future income, and other relevant evidence. Id. We agreed with the family court that "Parker need not be excused of his child support obligation because of a willful act that resulted in his imprisonment." Id. at 5. We noted that Parker certainly could have anticipated that his unlawful activity and subsequent probation violation might result in imprisonment and that he need not have acted willfully to avoid his child support duty. Id. at 5-6. Finally, we recognized that Parker's children's needs would not diminish upon his entry into prison. Id. at 6.

¶ 16. In Voecks, we similarly upheld the family court's exercise of discretion although it reached the opposite result. There, the family court determined that William Voecks' incarceration constituted a substantial change of circumstances sufficient to warrant a reduction in child support. Voecks, 171 Wis. 2d at 186. Relying on Parker, Cheryl Voecks argued that child support should not be reduced due to imprisonment resulting from voluntary and intentional criminal acts. Voecks, 171 Wis. 2d at 188. We did not agree. We held that even though incarceration results from intentional criminal conduct, it is a change in circumstances that gives a circuit court competence to review a child support order and may be considered by the circuit court in determining whether it should exercise its discretion to modify child support. Id.

¶ 17. Although Parker and Voecks dealt with the modification of child support after an initial judgment had been entered, we nevertheless find their reasoning instructive as to whether a circuit court may consider a party's incarceration in determining an initial child support obligation. We conclude that incarceration is a valid factor for a family court to consider in arriving at an initial determination of child support because of the impact it has on the payor's employability due to what may be voluntary and unreasonable acts. In exercising its discretion, the court may consider whether the crime was of an intentional nature, its potential effect on the payor's future income, the assets of the payor, how the needs of the children will be met during the payor's incarceration and any other factors which the court deems relevant.

¶ 18. In this case, the family court acknowledged, pursuant to Voecks and Parker, that incarceration was among the relevant factors in determining child support. And the court otherwise thoroughly addressed the issues presented by Kim's incarceration. The court observed that Kim's incarceration was the result of his choice to operate a motor vehicle while intoxicated despite his four previous OWI convictions. The court considered the impact Kim's incarceration might have on his future income and found that if Kim was unsuccessful in finding comparable employment upon his release, he could petition the court for a modification. In addition, the court noted that Kim's primary asset was his portion of the equity in the parties' marital residence. The court determined that Sandra would have a difficult time meeting the needs of the children on her income alone during Kim's incarceration and that Kim's child support obligation would be paid from his proceeds of the property division.

¶ 19. We additionally note that the family court's decision to base Kim's child support obligation on his earning capacity is supported by Wis. Stat. § 767.25, the statute governing child support. The statute provides, in relevant part, that the court shall "[o]rder either or both parents to pay an amount reasonable or necessary to fulfill a duty to support a child." Sec. 767.25(l)(a). In addition, "the court may consider all relevant financial information or other information relevant to the parent's earning capacity. . . ." Sec. 767.25(lg). Furthermore, "the court shall determine child support payments by using the percentage standard established by the department under s. 49.22(9)." Sec. 767.25(lj). However, § 767.25(lm) permits the family court to deviate from the child support percentage standard if certain factors are satisfied.

¶ 20. With respect to earning capacity, Wis. Admin. Code § DWD 40.03(3) provides in relevant part:

SUPPORT OBLIGATION BASED ON EARNING CAPACITY. In situations where the income of the parent obligated to pay child support in accordance with the [percentage standard] is less than that parent's earning capacity . .. the court may establish support by applying the percentage standard to:
(a) An amount determined by the court to represent the payer's ability to earn, based on the payer's education, training and work experience, and the availability of work in or near the payer's community....

The family court's application of the percentage standard to Kim's earning capacity is supported by § DWD 40.03(3).

¶ 21. The law is well settled that a payor's earning capacity is properly considered when the payor's reduction in income is voluntary and unreasonable. State v. T.J.W., 143 Wis. 2d 849, 853-54, 422 N.W.2d 890 (Ct. App. 1988). Here, the family court observed that Kim's incarceration was the result of his conviction for his fifth offense of OWI. While acknowledging that alcoholism is a disease, the court found that Kim voluntarily chose to operate a vehicle while intoxicated. The court found this decision to be unreasonable. We agree. In light of Kim's OWI history, he is reasonably held to have anticipated that further OWI conduct would result in his incarceration and interfere with the ability to support his children. A parent remains obligated to make reasonable choices that will not deprive his or her children of the support to which they are entitled. See id.

¶ 22. Based on the family court's findings and application of the law, we conclude that the court properly exercised its discretion in setting Kim's initial support obligation under the judgment.

Property Division

¶ 23. Kim argues that the family court erroneously exercised its discretion in refusing to disburse to him his $11,850 balancing share of the marital estate. He argues that the family court erroneously "seized" his portion of the property division "as a guarantee . . . for the payment of future child support."

¶ 24. The family court ordered an equal division of Kim and Sandra's marital estate. At the time of divorce, their divisible marital estate consisted solely of the equity in their marital residence, which the court awarded to Sandra. In order for Sandra to make an equalizing payment to Kim, she would need to sell or refinance the marital residence. Recognizing that Sandra would be struggling financially as the sole provider for the parties' minor children, the court delayed Sandra's obligation to equalize the property division until after Kim's incarceration terminates. The court ordered Sandra to pay interest of 8% per annum on the unpaid portion of Kim's property division. The court also provided for a dollar-for-dollar offset of Kim's child support obligation against the amount due to him from Sandra.

¶ 25. We uphold the family court's discretionary decision. A court may delay the equalization of the property division so long as it charges interest on any unpaid amount. See Duffy v. Duffy, 132 Wis. 2d 340, 349, 392 N.W.2d 115 (Ct. App. 1986); Jasper v. Jasper, 107 Wis. 2d 59, 69-70, 318 N.W.2d 792 (1982). The court's innovative provision properly addresses the particular circumstances of this case by not only assuring the payment of child support by an offset against the property division, but also preserving the home as a residence for the parties' minor children as long as Kim is incarcerated. We are satisfied that the family court examined the relevant facts, applied a proper standard of law and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. See Sharon v. Sharon, 178 Wis. 2d 481, 488, 504 N.W.2d 415 (Ct. App. 1993).

Attorney's Fees

¶ 26. The final issues on appeal relate to attorney's fees both at the trial court and appellate court levels.

¶ 27. At the final hearing, the family court ordered Kim to contribute $300 to Sandra's attorney's fees incurred as a result of his request for a de novo review of the family court commissioner's temporary child support order. Kim argues that this award is not supported by the facts.

¶ 28. "The circuit court in a divorce action may award attorney fees to one party based on the financial resources of the parties, see Wis. Stat. § 767.262(1); because the other party has caused additional fees by overtrial, or because the other party refuses to provide information which would speed the process along." Randall v. Randall, 2000 WI App 98, ¶ 22, 235 Wis. 2d 1, 612 N.W.2d 737 (citations omitted).

¶ 29. Here, the family court noted that Kim's de novo review was not successful and that it believed Kim's argument with respect to child support to be without merit. We view that statement as a ruling that Kim's de novo review was either overtrial within the meaning of Randall or frivolous under Wis. Stat. § 814.025. However, Kim was entitled to a de novo review of the family court commissioner's decision pursuant to Wis. Stat. § 767.13(6). And, as our preceding discussion reveals, the effect of a payor's existing incarceration on a child support award, whether temporary or final, presents an issue of first impression. Therefore, Kim's stance on this issue was neither overtrial nor frivolous.

¶ 30. We also observe that the financial resources of the parties reveal that that Kim is in no better position to pay attorney fees than Sandra. Wis. Stat. § 767.262(l)(a). While we have held that Kim's child support obligation can be based on his earning capacity, we do not extend that holding to attorney fees. Child support is a special obligation of a parent. Attorney fees of the opposing party are not. Here, Kim should have reasonably anticipated that a further OWI conviction could impact his ability to support his children. But to hold that he should have reasonably anticipated that such conduct would also result in attorney's fees to Sandra is too far a stretch. Based on the facts of record, we conclude that the circuit court erroneously exercised its discretion in awarding a contribution of attorney's fees to Sandra.

¶ 31. As a final matter, we address Sandra's motion for costs and attorney's fees on appeal pursuant to Wis. Stat. § 809.25(3). Sandra contends that Kim's appeal is frivolous and Kim should have known that his 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. But we have already noted the absence of controlling law as to how a payor's existing incarceration affects an initial determination of child support. From that, it follows that Kim's appeal is not frivolous. We deny Sandra's motion for costs and attorney's fees on appeal.

Conclusion

¶ 32. We conclude that a party's incarceration is a valid factor for a family court to consider when making an initial determination of child support. We further conclude that the family court properly exercised its discretion in basing Kim's child support obligation on his earning capacity and in providing for an offset of his child support obligation against his property division payout. We affirm the circuit court's judgment with respect to both child support and property division.

¶ 33. Finally, we conclude that there is no basis for an award of attorney's fees either at trial or on appeal. We therefore reverse that portion of the judgment awarding attorney's fees to Sandra.

By the Court. — Judgment affirmed in part and reversed in part.

       Kim appeared at the hearing by speakerphone.

       The family court noted that upon Kim's completion of his incarceration, the parties would likely need to hire an accountant to calculate the amount of the equalization payment owing from Sandra to Kim, if any.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       This is so even though the amount of the child support award happens to mirror that set out in the temporary order.

        Voecks v. Voecks, 171 Wis. 2d 184, 491 N.W.2d 107 (Ct. App. 1992), does not apply for an additional reason. In Voecks, the payor was incarcerated after the judgment was entered. Id. at 186. Here, Kim was already incarcerated when the action was commenced.

       We note that Sandra cites to an unpublished decision of the court of appeals throughout her appellate brief. On March 12, 2001, this court ordered that we would disregard "all references in the respondent's brief to an unpublished court of appeals case, Voigt v. Voigt, No. 98-3234."

       Kim relies on State v. Statesman, 221 Wis. 2d 178, 585 N.W.2d 181 (Ct. App. 1998), in support of his argument that the circuit court erroneously failed to consider the circumstances of his case apart from his incarceration for OWI. We conclude that Statesman has no bearing on this case. Statesman was a criminal case where we held that the defendant was constitutionally entitled to present evidence of his incarceration as a defense to a charge of criminal nonsupport. Id. at 181-82. Moreover, citing Parker, we noted in Statesman that "depending on the circumstances, a trial court may properly exercise its discretion and deny a reduction in child support because of incarceration." Statesman, 221 Wis. 2d at 185.

       We appreciate that the amount of the child support award is slightly less than the amount called for under a strict mathematical application of the percentage standards. However, we deem the difference to be de minimus and therefore we conclude that the family court did not deviate from the percentage standards. Thus, we do not address Kim's further argument that the family court failed to consider the factors set forth in Wis. Stat. § 767.25(lm) in choosing to deviate from the standards.

       We note that Kim's appellate brief expresses some confusion as to whether the circuit court created a trust pursuant to Wis. Stat. § 767.31 to manage Kim's portion of the marital estate to be used for child support. While the circuit court briefly discussed doing so, there is nothing in the record or the judgment of divorce to indicate that it did. Rather, Kim's portion of the marital estate remains in the equity in the parties' marital residence, which was awarded to Sandra.


author: ANDERSON, J.

text:
    Kevin Giffin and Sally Giffin, Plaintiffs-Respondents, v. Gary Poetzl and Maney-Miller Inspectors, LLP, Defendants-Respondents, Economy Cement, Masonry, Inc. and MDM Enterprises, Inc., Defendants, Town of Vernon, Defendant-Appellant.
    Court of Appeals

      No. 00-2633.

      Submitted on briefs July 18, 2001. —
    Decided August 29, 2001.

    2001 WI App 207
    (Also reported in 634 N.W.2d 901.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Charles H. Bohl and Andrew A. Jones oí Whyte Hirschboeck Dudek, S.C., Milwaukee.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Thomas E. Aul of Law Offices of Thomas E. Aul, Delafield.
    Before Nettesheim, PJ., Brown and Anderson, JJ.
   ANDERSON, J.

¶ 1. The Town of Vernon (Town) appeals from a nonfinal order of the circuit court denying its summary judgment motion asserting that Gary Poetzl (Poetzl) and Maney Miller Inspectors, LLP (Maney-Miller) (also defendants below) are independent contractors of the Town, and that therefore Kevin and Sally Giffin (Giffins) (plaintiffs below) are precluded from recovering from the Town for the alleged negligence of Poetzl and Maney-Miller. Because we agree with the Town that Poetzl and Maney-Miller are independent contractors pursuant to Wis. Stat. § 101.65(2) (1999-2000), we reverse.

Facts

¶ 2. The Town contracted with Maney-Miller (Po-etzl is a partner in Maney-Miller) to perform building inspections for the Town. The Giffins applied for and received a building permit for the construction of a single-family residence. The Giffins then entered into a contract with Stengel Builders (Stengel) in early 1996 to build their home. In the fall of 1996, after about six months of construction, the Giffins decided to terminate their contract with Stengel because of several problems with the construction.

¶ 3. The Giffins arbitrated their claims against Stengel in January 1998. The arbitration resulted in an award that excused the Giffins responsibility for the $57,682 final payment on the home and from responsibility for any unpaid bills or invoices incurred by Stengel relating to construction of the home. The arbitrators also awarded the Giffins $3500.

¶ 4. The Giffins then filed a lawsuit against the Town, Poetzl and Maney-Miller, among others, alleging that the construction defects violated the Town's building code. With respect to the Town, the Giffins further alleged that Poetzl and Maney-Miller negligently provided building inspection services to them on behalf of the Town. Specifically, the Giffins alleged that Poetzl failed to uncover or identify the alleged construction defects caused by Stengel and the various subcontractors.

¶ 5. On September 15, 2000, the circuit court denied motions for summary judgment filed by the Town, Poetzl, and Maney-Miller. On September 29, 2000, the Town filed a petition with this court pursuant to Wis. Stat. §§ 808.03(2) and 809.50(1) seeking leave to appeal the nonfinal order of the circuit court denying its motion for summary judgment. On November 8, 2000, we granted the petition of the Town.

Standard of Review

¶ 6. We review decisions on summary judgment de novo. U.S. Fid. & Guar. Co. v. Goldblatt Bros., 142 Wis. 2d 187, 190, 417 N.W.2d 417 (Ct. App. 1987). Summary judgment is governed by Wis. Stat. § 802.08. Its purpose is to determine whether a dispute can be resolved without a trial. Preloznik v. City of Madison, 113 Wis. 2d 112, 115, 334 N.W.2d 580 (Ct. App. 1983). An appellate court as well as the trial court must follow summary judgment methodology. Id. at 115-16. Under that methodology, the court, trial or appellate, first examines the pleadings to determine whether claims have been stated and a material factual issue is presented. Id. at 116. If the complaint states a claim and the pleadings show the existence of factual issues, the court examines the moving party's affidavits for eviden-tiary facts admissible in evidence or other proof to determine whether that party has made a prima facie case for summary judgment. Id. To make a prima facie case for summary judgment, a moving defendant must show a defense that would defeat the claim. Id. If the moving party has made a prima facie case for summary judgment, the court examines the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact, or whether reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary. Id.

¶ 7. This case involves the interpretation of Wis. Stat. § 101.65. Statutory interpretation and the application of a statute are questions of law that we review independently of the circuit court. State v. Schmitt, 145 Wis. 2d 724, 729-30, 429 N.W.2d 518 (Ct. App. 1988).

Relevant Statute

¶ 8. Wisconsin Stat. § 101.65 states, in part, that a town:

(1) May:
(a) Exercise jurisdiction over the construction and inspection of new dwellings by passage of ordinances, provided such ordinances meet the requirements of the one- and 2-family dwelling code adopted in accordance with this subchapter.. ..
(2) Shall contract with the department for those inspection services which the municipality does not perform or contract for ... and reimburse the department for its reasonable and necessary expenses incurred in the performance of such services.... (Emphasis added.)

Analysis

¶ 9. On appeal, we decide two issues. First, we hold that under Wis. Stat. § 101.65, the Town is allowed to contract out for building inspection services. Second, we hold that the Town did contract out for building inspection services to Maney-Miller and Poetzl, who thus performed as independent contractors for the Town.

¶ 10. The circuit court addressed the Giffins' claim of negligence against the Town based on the alleged failure of Maney-Miller and Poetzl to uncover purported violations of the Uniform Dwelling Code by Stengel and various subcontractors in the construction of their home. In deciding this claim, the circuit court noted that the weighing of all the factors involved "would be difficult were it not for the clear language of the legislature" found in Wis. Stat. ch. 101. We agree that the language in ch. 101 is clear, but that clarity was partially lost on the circuit court. While the court correctly recognized that ch. 101 imposes a nondiscre-tionary duty upon municipalities to ensure that building inspections occur, it incorrectly concluded that ch. 101 prohibits a municipality from contracting out for building inspection services and thus, incorrectly deducted that an inspector performing such services for the Town functions as a Town employee and not as an independent contractor.

¶ 11. Wisconsin Stat. ch. 101 does require a municipality, such as the Town, to ensure that building inspection takes place, but it contemplates a municipality doing so in one of several ways. The language of ch. 101 unambiguously gives the Town discretion to exercise jurisdiction over the construction of residences and, if it chooses to do so, the Town may either pay the State to perform the inspections, perform the inspections itself or contract for the inspections. Wis. Stat. § 101.65. We are satisfied that the Town had authority under § 101.65 to contract with Maney-Miller for the performance of inspections.

¶ 12. The second question is whether the inspectors are employees of the Town or independent contractors. In Snider v. Northern States Power Co., 81 Wis. 2d 224, 232, 260 N.W.2d 260 (1977), our supreme court stated that the most important single factor in answering this question is the degree to which the owner retained control over the details of the work. The general rule is that an owner of a project under construction is not ordinarily liable for the negligence of an independent contractor. Id. at 228. In Snider, Northern States Power was the owner of a nuclear generating plant which was under construction. Id. Snider was a journeyman electrician employed by L.K. Comstock Co., a contractor employed by Northern States Power to do the electrical work. Id. Snider was injured on the job. Id. at 230. Snider contended that Northern States Power retained control and supervision of the construction and, therefore, its duty to an injured party was the same as that of the independent contractor in respect to failure to properly control and supervise. Id. at 228.

¶ 13. The supreme court disagreed with Snider and held that L.K. Comstock was an independent contractor. Id. at 232. Its decision was based on these facts: Northern States Power did not attempt to supervise or control the work carried out by L.K. Com-stock; Northern States Power's inspector's only concern was to determine that the completed work conformed with the contract specifications; Northern States Power did not attempt to retain a right to control the details of the work; and Northern States Power did not attempt to exercise detailed supervision. Id.

¶ 14. This is a Snider case. Like Northern States Power, the Town did not attempt to exercise detailed supervision over the work. And like L.K. Comstock, Maney-Miller retained control over the details of the work. Maney-Miller was a partnership that had contracts with several municipalities. Since 1995, the Town has contracted with Maney-Miller to perform all building inspection services on behalf of the Town. Maney-Miller maintained its office in Delafield, but had limited office hours in the Town's town hall. All partners of Maney-Miller were provided the tools of the trade by the partnership rather than by the Town. Maney-Miller, not the Town, controlled its employees' or partners' physical conduct and actions in performing building inspections on behalf of the Town, and no Town official accompanied the representatives of Maney-Miller to their on-site building inspections. In fact, no Town official has any input into or control over the decisions of Maney-Miller representatives during building inspections. All partners are paid from the income of the partnership. The Town requires Maney-Miller to have insurance for the services that it provides on behalf of the Town and the Town has never provided insurance to Maney-Miller. Under the Snider test, Maney-Miller and Poetzl are independent contractors. Therefore, the Town is not liable for the negligence of Maney-Miller. See id. at 228.

¶ 15. We add this observation. On appeal, Maney-Miller and Poetzl at times defend portions of the circuit court's ruling (i.e., as to the independent contractor question), but at other times argue for immunity, which would mean they would want to reverse the circuit court's ruling as to them. Maney-Miller and Poetzl are not appellants in this case. They are respondents and to the extent they seek reversal of the circuit court's ruling that they are not entitled to immunity as independent contractors of the Town, they were required to file a cross-appeal under Wis. Stat. Rule 809.10(2)(b). Therefore, we will not address Maney-Miller and Poetzl's arguments that seek reversal or modification of the circuit court's order. However, if Maney-Miller and Poetzl renew their arguments in the circuit court, they may well be entitled to immunity under Estate of Lyons v. CNA Insurance Cos., 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996), where this court extended governmental immunity to private persons including independent contractors who contract with municipal authorities.

By the Court. — Order reversed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       We need not address the other issues in this case because of our threshold reversal in favor of the Town. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).