Opinion
No. 2010AP2153-FT.
Opinion Filed: March 22, 2011.
APPEAL from an order of the circuit court for Pierce County: JOSEPH D. BOLES, Judge. Affirmed.
Before Hoover, P.J., Peterson and Brunner, JJ.
¶ 1 Michael Adrian appeals an order granting a domestic abuse injunction prohibiting contact with his former wife, Margaret Killeen. Adrian contends there was insufficient evidence to support the order and that his due process rights were violated. We reject both of Adrian's arguments and, therefore, affirm.
This is an expedited appeal under WIS. STAT. RULE 809.17. All references to the Wisconsin Statutes are to the 2009-10 version.
FACTS
¶ 2 Adrian and Killeen were divorced on April 1, 2010. They continued to live together in the marital house, however, while it was listed for sale. On July 6, 2010, Killeen filed a petition seeking a domestic abuse injunction. She alleged that Adrian "stated that he would set the house on fire to collect the insurance money," broke dishes and a bathroom sink, demanded to know her whereabouts and who she was with at all times, and threatened to remove her property from the home. Killeen alleged she had called the police because she felt unsafe due to Adrian's "verbal abuse." Killeen alleged Adrian had threatened her in front of the couple's two young daughters, ages five and two, and that Adrian had kicked the family's golden retriever. On the strength of the petition, a court commissioner issued a temporary injunction.
¶ 3 At the evidentiary hearing, Killeen testified Adrian had "repeatedly" threatened to burn, sink, or set a sail the parties' yacht and to burn the parties' house to collect insurance money. Killeen testified Adrian had threatened physical harm to her both before and after the divorce. Specifically, she testified Adrian had threatened "numerous times, because [she's] not a great swimmer, to put cement shoes on [her] feet and drown [her] in the river for . . . insurance money."
¶ 4 Killeen testified Adrian has trouble controlling his anger and his "face and . . . body get all red and tense, and the blood just starts pumping and the veins pump, and the nasty words come out." Killeen testified Adrian's anger was "very upsetting . . . because [she doesn't] know what's going to happen in the middle of the night or when [she is] not on guard." Killeen testified Adrian often had "road rage," and she described one such incident that took place while she and her daughters were passengers in a truck driven by Adrian.
¶ 5 A picture of a bathroom sink broken by Adrian on April 19, 2010, was introduced into evidence. Killeen testified she called the police on April 25 because Adrian threatened to damage her personal property. Killeen "called for help because [she] felt like [she] was in danger . . . [o]f what [Adrian] would — might do to [her.]" Killeen testified she does not know if Adrian "was going to carry out his threats he's made in the past. He gets angry and he just doesn't hear anything. And I am smaller than him, and I didn't feel safe for myself."
¶ 6 Killeen also testified she also contacted police on May 6 after Adrian called her at her workplace and told her to "[b]e careful what [she was] setting [her]self up for in the future," a comment Killeen related to "the repeated threats of the cement shoes in the river and drowning [her] for [her] insurance money." Killeen testified she felt "in imminent danger physically, and . . . afraid of what might happen."
¶ 7 Killeen also recounted a May 10 telephone call during which Adrian said "he was going to be taking [her] things and [she] wasn't allowed to remove things from the home, and just threatening to damage [her] personal property." On June 20, Adrian telephoned Killeen, accusing her of lying and "harassing [her] about [her] whereabouts." Killeen testified she was afraid of physical harm after that call "because . . . the threats have been coming on for a number of time[s], you know — periods of time, and it's after the divorce and I'm still getting them."
¶ 8 The final incident Killeen testified about took place on July 3. She testified that Adrian "followed [her] around the house, repeatedly [saying] [l]ook me in the eye when I'm talking to you." Adrian "went on and on during lunch in front of the children" and she eventually "called the police to get some help to get the harassment to stop before things got out of control." Killeen testified she was "definitely afraid of physical harm" and that Adrian "was bent over, discolored in his skin, just beady eyes and very, very angry." After a police officer talked with the couple's five-year-old daughter, Adrian was arrested.
¶ 9 Killeen testified she had seen Adrian become "volatile" many times, and she "believe[d] that what [she's] seen and heard in the past is just a preface of what could come in the future to follow through on threats of physical harm." On cross-examination, Killeen admitted police have not cited or charged Adrian with any crime arising from any of the incidents. She also testified that Adrian "ha[d] not touched [her] yet."
¶ 10 Adrian testified at the hearing. He disputed Killeen's account of the July 3 incident, suggesting he was "try[ing] to just get some communication" so they could "make sure the kids are taken care of." He testified he broke the bathroom sink "accidentally" when he "tossed" a hair brush and it hit the corner of the sink. Adrian denied making any threats to Killeen's property. When asked if there was "[a]ny threat of any physical violence," Adrian responded he had "never touched [Killeen] in [his] life in a physical way to hurt her." Adrian testified he "love[d] that boat" and he denied threatening to burn or destroy it. Adrian admitted he had said that "mice chewing" on "loose wires" might cause the house to burn but he denied threatening to burn down the house.
DISCUSSION
¶ 11 The circuit court granted Killeen's petition. The circuit court "focused" on the "threat" to inflict pain, physical injury, or illness, and found that Killeen's "testimony regarding . . . the threats of drowning . . . [is] credible." The circuit court found that Killeen "was in fear for her safety as a result of" Adrian's threats and that "the necessary requirements for an injunction [were] met."
¶ 12 WISCONSIN STAT. § 813.12(4)(a)3. authorizes the issuance of an injunction if the circuit court "finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct . . . may engage in, domestic abuse of the petitioner." Domestic abuse includes the "[i]ntentional infliction of physical pain, physical injury or illness" or "[a] violation of s. 943.01 [criminal damage to property] involving property that belongs to the [petitioner]" or "[a] threat to engage in [such] conduct." WIS. STAT. § 813.12(1)(am)1., 3., and 6. "Reasonable grounds" is defined as "more likely than not that a specific event has occurred or will occur." WIS. STAT. § 813.12(1)(cg).
¶ 13 In this context, a threat must be a "true threat." Wittig v. Hoffart , 2005 WI App 198, ¶ 16, 287 Wis. 2d 353, 704 N.W.2d 415.
A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered. Id. (citation omitted).
¶ 14 In reviewing the circuit court's determination, we uphold findings of fact unless they are clearly erroneous. WIS. STAT. § 805.17(2). Furthermore, the circuit court is the final arbiter of witness credibility. Hughes v. Chrysler Motors Corp. , 188 Wis. 2d 1, 21, 523 N.W.2d 197 (Ct. App. 1994), aff'd, 197 Wis. 2d 973, 542 N.W.2d 148 (1996). Whether the facts found are sufficient to meet a party's burden of proof, however, is a matter of law we review de novo. Spindler v. Spindler , 207 Wis. 2d 327, 338, 558 N.W.2d 645 (Ct. App. 1996).
¶ 15 Adrian contends that the implicit finding that he made a "true threat" against Killeen is not supported by sufficient evidence because Killeen "had not been subjected to any previous acts of physical violence." Adrian stresses that police became "actively involved" in only one instance, and even then Adrian was not charged with any crime. Adrian also suggests that Killeen "admitted" that Adrian's statements regarding the burning of the house and the yacht "may have been said jokingly."
¶ 16 We reject Adrian's contention. First, Adrian misapprehends Killeen's testimony. On direct examination, Killeen testified that Adrian "has repeatedly threatened to burn [the] home, which was appraised at $750,000. Jokingly or not, I don't know, but it was a threat that was mentioned a number of times." When asked about that statement on cross-examination, Killeen admitted that she "d[id]n't know if [Adrian was] joking or not. Only [he] would know that. But yes, he has repeatedly threatened to burn the yacht that we both own . . . and also the house, and sink the yacht, yes." Killeen's concession that only Adrian knows for certain whether he was joking does not render the threats harmless or immaterial. They remain part of the "totality of the circumstances [that] must be considered" when determining whether a true threat has been made. See Wittig , 287 Wis. 2d 353, ¶ 17.
¶ 17 Second, Adrian incorrectly equates "active involvement" of the police with an arrest. The police were actively involved in the other incidents, talking with the parties and defusing emotionally-charged situations. We reject Adrian's suggestion that statements or threats need not be taken seriously unless the person making them is arrested and charged with a crime.
¶ 18 Third, Adrian's argument would require an overt act before a threat could be considered domestic abuse. That interpretation, however, would mean that "a threat to engage in" conduct would be surplusage. We reject such an interpretation. See Heritage Farms, Inc. v. Markel Ins. Co. , 2009 WI 27, ¶ 7, 316 Wis. 2d 47, 762 N.W.2d 652 ("[S]tatutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage.").
¶ 19 Finally, and most importantly, the circuit court's finding that Adrian had threatened to inflict physical injury on Killeen was not premised on the threats to burn the house or the yacht. Rather, it was based on Killeen's "credible" testimony about Adrian's threats to drown her. Based on that finding, we concur with the circuit court's conclusion that Killeen established that Adrian had committed domestic abuse that warranted injunctive relief. See Wittig , 287 Wis. 2d 353, ¶ 20.
¶ 20 Adrian also contends that his due process rights were violated because evidence presented at the hearing differed from the allegations in the petition and, therefore, he "was not provided notice of the charges against him." We reject Adrian's contention. Due process requires notice that "reasonably convey[s] the information required for parties to prepare their defense and make their objections." Bachowski v. Salome , 139 Wis. 2d 397, 412, 407 N.W.2d 533 (1987). In Bachowski , the supreme court addressed the general harassment statute, WIS. STAT. § 813.125, and concluded that a petition that complied with § 813.125(5)(a) "would provide adequate notice." Id. at 412-13. We see no reason why the domestic abuse harassment statute, WIS. STAT. § 813.12, should be treated differently. Killeen's petition complied with § 813.125(5)(a) and, therefore, Adrian received adequate notice.
¶ 21 Adrian also argues that Bachowski , in which a harassment injunction was reversed because no evidence was presented concerning the acts and conduct alleged in the petition, id. at 413-14, compels reversal. In her petition, Killeen alleged that Adrian had threatened her and damaged the bathroom sink and her personal property. At the hearing, Killeen testified about those allegations. Therefore, Bachowski is not controlling. We also reject Adrian's suggestion that a petitioner must recite every claimed act of domestic abuse in the petition and that failure to do so precludes a circuit court from relying on the non-alleged act in its decision to grant an injunction. The law does not require that a person seeking a domestic abuse injunction predict the grounds on which the circuit court might grant relief.
By the Court. — Order affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.