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[T] In re Finding of Contempt in re the Marriage of Ehrke9/25/2003
. Gary A. Miller appeals an order of the circuit court finding him in contempt and ordering him to pay $7,329 plus 5% interest to Jodi Lynn Ehrke, and reasonable attorneys' fees in the amount of $7,434 to Ron Niesen and Walter Stewart.
. On appeal, Miller claims that he did not disobey an order because the court's oral statement about paying Jodi out of the trust account was not contained in the judgment of divorce. Miller also argues that the circuit court misused its discretion when awarding remedial damages by not properly taking into account DuWayne's bankruptcy proceedings and Jodi's failure to take steps to mitigate her damages. Finally, Miller contends that the attorneys' fees portion of the damage award was error because the fees were unreasonable. We disagree with each of these arguments and affirm.
Background
. Appellant, Attorney Gary A. Miller, represented DuWayne Ehrke in a contested divorce action. Jodi Ehrke, the respondent in this action, was the petitioner in the divorce proceedings. The divorce action was heard on July 11 and July 18, 2000, before Judge Gerald Nichol. One of the issues before the court was the question of the division of a cash settlement, held by Miller in a trust account, that DuWayne received from a personal injury suit. At the July 18 hearing, the circuit court found that Jodi was entitled to $7,329 of the cash settlement and, in reference to that amount, the court stated: "So I'm saying [Jodi] gets what's in his trust account, ... and then I'm awarding out of your trust account the 73 ...." Miller responded: "Okay. All right." Consistent with this oral directive, the judgment of divorce awarded Jodi, in part, a cash settlement payment of $7,329.
. Attorney Miller, however, did not give Jodi any money from the trust account. Instead, Miller paid himself $2,400 and gave the remainder in the account, $4,929, to DuWayne. Jodi moved for a remedial contempt order against Attorney Miller. The circuit court found Miller in contempt, concluding that Miller had violated SCR 20:1.15 and had acted contrary to the court's direction. The court ordered Miller to pay Jodi the $7,329 plus interest, and to reimburse her for her reasonable attorneys' fees and costs relating to the litigation of the contempt issue. After a subsequent hearing on attorney fees, the court reaffirmed its prior decision and ordered Miller to pay Jodi $7,329 plus 5% interest from March 30, 2001, and further ordered Miller to pay attorneys' fees to Ron Niesen in the amount of $6,244 and to Walter Stewart in the amount of $1,190.
Discussion
. We review a circuit court's use of its contempt power to determine whether the court properly exercised its discretion. Benn v. Benn, 230 Wis. 2d 301, 308, 602 N.W.2d 65 (Ct. App. 1999). "Remedial contempt seeks to procure present and future compliance with court orders, but the sanction must be purgeable through compliance with the order from which the contempt arose." Id. at 309. The mere failure to comply with a court order is an insufficient basis for a contempt finding. See id. The party must have been able to comply with the order and his or her refusal must be willful and intentional. See id. at 309-10. It is within the circuit court's discretion to decide what type of remedial sanctions to impose for contempt. Id. at 308 (citing Wis. Stat. §§ 785.02 and 785.04(1)). A decision to award attorney fees under § 785.04 is a discretionary act. Benn, 230 Wis. 2d at 308.
. Miller does not contend that the court did not have the power to order him to pay money to Jodi from the trust account. Rather, Miller claims that he was only obligated to comply with the written judgment of divorce
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