CaseLaw Express 08/03/2009 - State Bar of Wisconsin

Court of Appeals Cases

Contracts/ Statute Of Limitations/ Summary Judgment/ Statutes

Obriecht v. Lettenberger & Glasbrenner
Docket: 2008AP003092 07-30-09
VERGERONT, J. This appeal concerns two contracts for legal services between Attorney Jenelle Glasbrenner and Andrew Obriecht, the client.[1] The circuit court granted summary judgment against Obriecht, concluding that Attorney Glasbrenner had not breached the contracts by failing to file a postconviction motion in state court before the expiration of the statute of limitations for a habeas petition in federal court. We conclude there are no material issues of fact and that, as a matter of law, the contract language is unambiguous and did not condition payment on Attorney Glasbrenner filing a postconviction motion nor require her to file a motion by any specific date. We therefore affirm the circuit court's grant of summary judgment.
Criminal Law/ Briefs/ Ineffective Assistance Of Counsel/ Statutes/ New Trial

State v. Lewis
Docket: 2008AP002429 07-28-09
PER CURIAM. Edward Max Lewis, pro se, appeals an order denying his WIS. STAT. § 974.06 postconviction motion. He raises numerous issues on appeal, most of which are wholly undeveloped and are based on factual claims that are refuted by the record. Contrary to WIS. STAT. RULE 809.19(1)(d), Lewis's brief makes no citation to the record for any facts. Therefore, we will confine our review to three issues: (1) whether WIS. STAT. § 974.06(3) requires the court to hold an evidentiary hearing when it allows but does not compel the State to file a response; (2) whether Lewis's trial counsel was ineffective in jury selection, for failing to introduce written reports prepared by the State's witnesses and failing to challenge the credibility of Lewis's brother, Orin; and (3) whether Orin's recantation provides a basis for a new trial. We reject Lewis's arguments and affirm the order.
Criminal Law/ Constitutional Law/ Speedy Trial/ Evidence/ Contempt

State v. Howard
Docket: 2009AP000365 07-29-09
SNYDER, J.[1] Derrick Howard appeals from a judgment of conviction for contempt of court contrary to Wis. Stat. § 785.04(2). Howard complains that the State denied him his constitutional right to a speedy trial, the trial court erred in admitting evidence of his status as a co-defendant in a prior homicide case, and the court wrongly denied his mistrial motion when the jury heard certain testimony concerning the prior homicide case presented in violation of the trial court's pretrial order. We reverse the judgment of conviction.
Criminal Law/ Defendant Competency/ Constitutional Law-Due Process/ Judicial Authority-Discretion/ Motions/ Ineffective Assistance Of Counsel

State v. Thorp
Docket: 2008AP001545 07-28-09
PER CURIAM. Roger Thorp appeals a judgment, entered upon a jury's verdict, convicting him of arson, contrary to WIS. STAT. § 943.02(1)(a). Thorp also challenges the denial of his motion for postconviction relief. Thorp argues he was deprived of his due process rights when the trial court failed to conduct an evidentiary hearing on his competency to stand trial. Thorp also contends the trial court erroneously exercised its discretion by denying his postconviction motion without a hearing. We reject Thorp's arguments and affirm the judgment and order.
Criminal Law/ Evidence/ Evidence Ruling/ Constitutional Law/ Statutes

State v. Jones
Docket: 2008AP001595 07-29-09
SNYDER, J. Ricky H. Jones appeals from an order denying his motion to admit two video recordings of police interviews with the alleged victims. Jones is charged with two counts of first-degree sexual assault of a child under the age of thirteen. Each of the two counts involve a different child. The video recordings show each of the girls being interviewed about unrelated charges they made against other men. Jones believes the videos are admissible to show that each victim has made prior untruthful allegations of sexual assault or, in the alternative, that he has a constitutional right to present this evidence to the jury. We reject Jones' argument that he has a constitutional right to present the video evidence to the jury. However, we agree with Jones that the evidence may be admissible as a prior untruthful allegation under Wis. Stat. § 972.11(2)(b)3 (2007-08).[1] That determination requires further analysis by the circuit court. Accordingly, we reverse and remand the matter with directions.
Criminal Law/ Evidence/ Photo Array/ Harmless Error/ Jury Instructions/ Constitutional Law/ Miranda

State v. Kellam
Docket: 2007AP002452 07-29-09
PER CURIAM. Marvin Kellam appeals from a judgment convicting him of first-degree sexual assault with use of a dangerous weapon, armed robbery, intimidating a victim, and taking and driving a vehicle without the owner's consent. We conclude that the circuit court did not err when it refused to suppress either the victim's out-of-court identification of Kellam or Kellam's inculpatory statements. In the alternative, if the court should have suppressed any of Kellam's statements, that error was harmless. Further, the court did not err when it refused to instruct the jury on the lesser included offense of second-degree sexual assault because the evidence did not warrant the instruction. We affirm.
Criminal Law/ Ineffective Assistance Of Counsel/ New Trial/ Jury Instructions

State v. Sidoff
Docket: 2008AP001608 07-30-09
PER CURIAM. Mary A. Sidoff appeals from a judgment of conviction for first-degree intentional homicide and an order denying her motion for postconviction relief. Sidoff argues that she received ineffective assistance of trial counsel, or in the alternative, she is entitled to a new trial in the interests of justice. Sidoff argues that her trial counsel failed to object to erroneous jury instructions and failed to request an instruction on a different lesser-included offense. We conclude that Sidoff did not receive ineffective assistance of counsel, and is not entitled to a new trial in the interests of justice. Consequently, we affirm.
Criminal Law/ Ineffective Assistance Of Counsel/ Pleas/ Knowingly, Voluntarily & Intelligently Plea/ Sentencing/ Judicial Authority-Discretion

State v. Sholar
Docket: 2007AP002096 07-28-09
PER CURIAM. Majaido Tharu Sholar, Jr., appeals a judgment entered on his guilty plea to first-degree reckless homicide, see WIS. STAT. § 940.02(1), and orders denying his motion for postconviction relief and supplemental motion for postconviction relief. On appeal, Sholar argues that his trial attorney was ineffective; that he did not knowingly, voluntarily and intelligently plead guilty; and that the circuit court erroneously exercised its sentencing discretion. We affirm.
Criminal Law/ Judicial Authority-Discretion/ Statutes/ Discovery/ Statutory Construction-Interpretation

State v. Bowser
Docket: 2008AP000206 07-30-09
Recommended for Publication
HIGGINBOTHAM, P.J. This is a discovery case that arises in the context of a criminal prosecution for possession of child pornography. The dispositive issue on appeal is whether the circuit court properly exercised its discretion under Wis. Stat. § 971.23(6) (2007-08)[1] in granting the State's motion for a protective order, which allowed Bowser's defense team access at a State facility to a computer hard drive allegedly containing child pornography evidence, but prohibited the defense from obtaining a copy of the hard drive.[2] We conclude, on the record before the circuit court, and in light of the serious harms associated with child pornography and the ease with which electronically-stored files are widely disseminated, that the court reasonably exercised its direction in granting the State's proposed protective order. We therefore affirm.
Criminal Law/ New Trial/ Juries/ Ineffective Assistance Of Counsel/ Jury Instructions/ State’s Waiver Of Issue/ Evidence/ Statutes

State v. Miller
Docket: 2007AP001052E 07-30-09
Criminal Law/ Sentencing Modification/ Constitutional Law/ Judicial Authority-Discretion/ Procedure

State v. Fant
Docket: 2008AP003056 07-28-09
PER CURIAM. John F. Fant appeals pro se from an order denying his sentence modification motion. We conclude that Fant's statutory claims are barred and his common law claims are meritless. We affirm.
Criminal Law/ Sentencing/ Judicial Authority-Discretion

State v. Mercado-Torres
Docket: 2008AP002840 07-28-09
PER CURIAM. A jury found Angel A. Mercado-Torres guilty of two counts of first-degree sexual assault of a child. See WIS. STAT. § 948.02(1). The circuit court imposed consecutive twenty-year sentences, each comprised of fifteen years of initial confinement and five years of extended supervision. The only issue on appeal is whether the circuit court properly exercised its sentencing discretion. Because we conclude that it did, we affirm.
Criminal Law/ Sex Offender Registration/ Statutes/ Statutory Construction-Interpretation/ Sentencing

State v. Engebretson
Docket: 2008AP002264 07-30-09
VERGERONT, J. This appeal concerns Wis. Stat. § 973.048(1m) (2007-08),[1] which authorizes the circuit court to require that a person convicted of specified crimes be required to register as a sex offender "if the court determines that the underlying conduct was sexually motivated as defined in s. 980.01(5)" and if it would be in the interest of public protection. Michael J. Engebretson pleaded guilty to stalking Kristi H. under Wis. Stat. § 940.32(2), which is included in the crimes listed in § 973.048(1m). The circuit court determined that his conduct was sexually motivated under the statutory definition because his motive was to induce Kristi H.'s son, Timothy, to resume a sexual relationship with Engebretson, which Timothy did not want. The court also decided that registration would be in the interest of public protection, and it ordered that Engebretson register.
Criminal Law/ Traffic Stops/ Reasonable Suspicion/ Evidence

State v. Moore
Docket: 2008AP001463 07-28-09
PER CURIAM. Ernest Moore appeals a judgment of conviction for various drug possession charges and an order denying his postconviction motion. Moore argues he was entitled to the suppression of all evidence obtained from his traffic stop because the stop was illegal. He also argues the circuit court erred by permitting the State to introduce testimony about how the arresting officer believed the drugs were hidden. We affirm the judgment and order.
Criminal Law/ Writ Of Coram Nobis/ Judicial Authority-Discretion/ Pleas

State v. Gering
Docket: 2008AP002254 07-28-09
PER CURIAM. Kenneth Gering, pro se, appeals an order denying his petition for a writ of coram nobis. Gering argues his conviction should be vacated due to errors in his plea hearing. We affirm.
Family Law/ Divorce/ Maintenance

Porto v. Porto
Docket: 2008AP002139 07-30-09
BRIDGE, J. Julie Porto appeals a judgment of divorce from John Porto. She challenges the circuit court's ruling regarding maintenance, alleging three errors. First, Julie argues that the circuit court erroneously exercised its discretion when it imputed to John an earning capacity of $9.00 per hour. We disagree. Second, she argues that the court erroneously exercised its discretion when it took into account her earnings from both a full-time and a part-time job, but only imputed to John earnings for one full-time job. We disagree. Third, Julie contends that the court erroneously exercised its discretion by failing to consider her significantly higher health care costs. We agree. We therefore reverse and remand the matter for further proceedings consistent with this opinion.
Family Law/ Divorce/ Maintenance/ Child Support/ Public Policy/ Marital Settlement Agreement (MSA)/ Taxation Consequences/ Estoppel/ Insurance

Huhn v. Stuckman
Docket: 2008AP003102 07-29-09
Recommended for Publication
NEUBAUER, J. Robert C. Huhn appeals from a trial court order denying his motion to modify family support awarded to his former spouse,
Carrie S. Stuckmann, p/k/a Carrie S. Huhn, under the terms of their marital settlement agreement. Robert moved to modify family support based on a substantial change in circumstances, including the change in primary placement of the parties' youngest child. Robert additionally requested the court to revisit the parties' responsibility for health insurance coverage and the assignment of a dependency tax exemption. Applying estoppel, the trial court denied Robert's motion on grounds that the parties had stipulated to nonmodifiable family support and did not address Robert's other requests. To the extent the nonmodifiable family support encompasses child support as well as maintenance, we conclude that it violates well established public policy prohibiting such agreements as to child support. Because the trial court erroneously applied estoppel and failed to consider the underlying component of family support, we reverse and remand for further proceedings on Robert's motion.
Family Law/ Divorce/ Placement/ Best Interest Of Child/ Judicial Authority-Discretion

Devore v. Bentrup
Docket: 2008AP002818 07-29-09
PER CURIAM. Rick Bentrup, Jr., appeals from an order terminating a shared placement arrangement and awarding to his former wife, n/k/a Jennifer Devore, primary placement of Rick's and Jennifer's five-year-old daughter. We conclude that the altered arrangement represents a proper exercise of the trial court's discretion. We affirm.
Family Law/ TPR/ Statutes/ Judicial Authority-Discretion

State v. Bobbie Jo K.
Docket: 2009AP001248 07-28-09
FINE, J. Bobbie Jo K. appeals the circuit court's order terminating her parental rights to Angel B. K. She contends that the circuit court did not consider all the factors the legislature directed courts to consider in making a decision whether to terminate a birth-parent's rights to his or her child. We disagree and affirm.
Insurance/ Underinsured Motorist Law (UIM)/ Damages/ Default Judgment/ Notice/ Procedure/ Statutes

Miller v. Hanover Insurance
Docket: 2008AP001494 07-30-09
DYKMAN, J. Vearl Miller, Wanda Miller, and Ross, Dayne and Wade Miller[1] appeal from an order for damages after they obtained a default judgment on their amended complaint seeking underinsured motorist (UIM) coverage from Zurich American Insurance Company. The Millers contend that the court erred in limiting their damages based on the language in their amended complaint and in prorating the damages award between the plaintiffs.[2]
OWI/ Reasonable Suspicion/ Traffic Stops/ Evidence

State v. Guerino
Docket: 2009AP000174 07-30-09
VERGERONT, J.[1] Guerino appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OWI) in violation of Wis. Stat. § 346.63(1)(a), second offense. He contends the arresting officer did not have reasonable suspicion to stop his vehicle and therefore the circuit court should have granted his motion to suppress evidence. We conclude the circuit court properly denied the motion. Accordingly, we affirm.
OWI/ Traffic Stops/ Reasonable Suspicion

Washington County v. Welch
Docket: 2009AP000047 07-29-09
SNYDER, J.[1] Donald W. Welch appeals from a judgment adjudicating him guilty of a first offense of operating a motor vehicle while under the influence of an intoxicant (OWI). He contends that the circuit court erred when it denied his motion to suppress evidence obtained during the investigatory stop of his vehicle. Welch asserts that the stop was not supported by reasonable suspicion. We disagree and affirm the judgment.
Personal Property Taxation/ Statutes/ Statutory Construction-Interpretation/ Constitutional Law-Due Process

Xerox Corporation v. DOR
Docket: 2007AP002884 07-30-09
Recommended for Publication
HIGGINBOTHAM, P.J. This is a personal property tax case. The issue is whether certain Xerox Corporation multifunction copier/printer/scanner/fax devices (MFDs) leased to consumers by Xerox are exempt from personal property taxes under Wis. Stat. § 70.11(39) (2007-08).[2] The Tax Appeals Commission concluded that the MFDs were nonexempt under the statute, and the circuit court agreed. Xerox appeals, contending that the Commission's decision is entitled to no deference and that the MFDs are not taxable under the applicable statutes. Xerox also contends it was denied due process as a result of alleged procedural errors below. We conclude, applying great weight deference, that the Commission's decision was based on a reasonable interpretation and application of § 70.11(39). We also reject Xerox's due process arguments. Accordingly, we affirm the circuit court's order affirming the Commission's order.


Week of July 27, 2009 Supreme Court Cases No decisions were released. Court of Appeals Cases Contracts/ Statute Of Limitations/ Summary Judgment/ Statutes Obriecht v. Lettenberger & Glasbrenner Docket: 2008AP003092 07-30-09 VERGERONT, J. This appeal concerns two contracts for legal services between Attorney Jenelle Glasbrenner and Andrew Obriecht, the client.[1] The circuit court granted summary judgment against Obriecht, concluding that Attorney Glasbrenner had not breached the contracts by failing to file a postconviction motion in state court before the expiration of the statute of limitations for a habeas petition in federal court. We conclude there are no material issues of fact and that, as a matter of law, the contract language is unambiguous and did not condition payment on Attorney Glasbrenner filing a postconviction motion nor require her to file a motion by any specific date. We therefore affirm the circuit court's grant of summary judgment. Criminal Law/ Briefs/ Ineffective Assistance Of Counsel/ Statutes/ New Trial State v. Lewis Docket: 2008AP002429 07-28-09 PER CURIAM. Edward Max Lewis, pro se, appeals an order denying his WIS. STAT. § 974.06 postconviction motion. He raises numerous issues on appeal, most of which are wholly undeveloped and are based on factual claims that are refuted by the record. Contrary to WIS. STAT. RULE 809.19(1)(d), Lewis's brief makes no citation to the record for any facts. Therefore, we will confine our review to three issues: (1) whether WIS. STAT. § 974.06(3) requires the court to hold an evidentiary hearing when it allows but does not compel the State to file a response; (2) whether Lewis's trial counsel was ineffective in jury selection, for failing to introduce written reports prepared by the State's witnesses and failing to challenge the credibility of Lewis's brother, Orin; and (3) whether Orin's recantation provides a basis for a new trial. We reject Lewis's arguments and affirm the order. Criminal Law/ Constitutional Law/ Speedy Trial/ Evidence/ Contempt State v. Howard Docket: 2009AP000365 07-29-09 SNYDER, J.[1] Derrick Howard appeals from a judgment of conviction for contempt of court contrary to Wis. Stat. § 785.04(2). Howard complains that the State denied him his constitutional right to a speedy trial, the trial court erred in admitting evidence of his status as a co-defendant in a prior homicide case, and the court wrongly denied his mistrial motion when the jury heard certain testimony concerning the prior homicide case presented in violation of the trial court's pretrial order. We reverse the judgment of conviction. Criminal Law/ Defendant Competency/ Constitutional Law-Due Process/ Judicial Authority-Discretion/ Motions/ Ineffective Assistance Of Counsel State v. Thorp Docket: 2008AP001545 07-28-09 PER CURIAM. Roger Thorp appeals a judgment, entered upon a jury's verdict, convicting him of arson, contrary to WIS. STAT. § 943.02(1)(a). Thorp also challenges the denial of his motion for postconviction relief. Thorp argues he was deprived of his due process rights when the trial court failed to conduct an evidentiary hearing on his competency to stand trial. Thorp also contends the trial court erroneously exercised its discretion by denying his postconviction motion without a hearing. We reject Thorp's arguments and affirm the judgment and order. Criminal Law/ Evidence/ Evidence Ruling/ Constitutional Law/ Statutes State v. Jones Docket: 2008AP001595 07-29-09 SNYDER, J. Ricky H. Jones appeals from an order denying his motion to admit two video recordings of police interviews with the alleged victims. Jones is charged with two counts of first-degree sexual assault of a child under the age of thirteen. Each of the two counts involve a different child. The video recordings show each of the girls being interviewed about unrelated charges they made against other men. Jones believes the videos are admissible to show that each victim has made prior untruthful allegations of sexual assault or, in the alternative, that he has a constitutional right to present this evidence to the jury. We reject Jones' argument that he has a constitutional right to present the video evidence to the jury. However, we agree with Jones that the evidence may be admissible as a prior untruthful allegation under Wis. Stat. § 972.11(2)(b)3 (2007-08).[1] That determination requires further analysis by the circuit court. Accordingly, we reverse and remand the matter with directions. Criminal Law/ Evidence/ Photo Array/ Harmless Error/ Jury Instructions/ Constitutional Law/ Miranda State v. Kellam Docket: 2007AP002452 07-29-09 PER CURIAM. Marvin Kellam appeals from a judgment convicting him of first-degree sexual assault with use of a dangerous weapon, armed robbery, intimidating a victim, and taking and driving a vehicle without the owner's consent. We conclude that the circuit court did not err when it refused to suppress either the victim's out-of-court identification of Kellam or Kellam's inculpatory statements. In the alternative, if the court should have suppressed any of Kellam's statements, that error was harmless. Further, the court did not err when it refused to instruct the jury on the lesser included offense of second-degree sexual assault because the evidence did not warrant the instruction. We affirm. Criminal Law/ Ineffective Assistance Of Counsel/ New Trial/ Jury Instructions State v. Sidoff Docket: 2008AP001608 07-30-09 PER CURIAM. Mary A. Sidoff appeals from a judgment of conviction for first-degree intentional homicide and an order denying her motion for postconviction relief. Sidoff argues that she received ineffective assistance of trial counsel, or in the alternative, she is entitled to a new trial in the interests of justice. Sidoff argues that her trial counsel failed to object to erroneous jury instructions and failed to request an instruction on a different lesser-included offense. We conclude that Sidoff did not receive ineffective assistance of counsel, and is not entitled to a new trial in the interests of justice. Consequently, we affirm. Criminal Law/ Ineffective Assistance Of Counsel/ Pleas/ Knowingly, Voluntarily & Intelligently Plea/ Sentencing/ Judicial Authority-Discretion State v. Sholar Docket: 2007AP002096 07-28-09 PER CURIAM. Majaido Tharu Sholar, Jr., appeals a judgment entered on his guilty plea to first-degree reckless homicide, see WIS. STAT. § 940.02(1), and orders denying his motion for postconviction relief and supplemental motion for postconviction relief. On appeal, Sholar argues that his trial attorney was ineffective; that he did not knowingly, voluntarily and intelligently plead guilty; and that the circuit court erroneously exercised its sentencing discretion. We affirm. Criminal Law/ Judicial Authority-Discretion/ Statutes/ Discovery/ Statutory Construction-Interpretation State v. Bowser Docket: 2008AP000206 07-30-09 Recommended for Publication HIGGINBOTHAM, P.J. This is a discovery case that arises in the context of a criminal prosecution for possession of child pornography. The dispositive issue on appeal is whether the circuit court properly exercised its discretion under Wis. Stat. § 971.23(6) (2007-08)[1] in granting the State's motion for a protective order, which allowed Bowser's defense team access at a State facility to a computer hard drive allegedly containing child pornography evidence, but prohibited the defense from obtaining a copy of the hard drive.[2] We conclude, on the record before the circuit court, and in light of the serious harms associated with child pornography and the ease with which electronically-stored files are widely disseminated, that the court reasonably exercised its direction in granting the State's proposed protective order. We therefore affirm. Criminal Law/ New Trial/ Juries/ Ineffective Assistance Of Counsel/ Jury Instructions/ State’s Waiver Of Issue/ Evidence/ Statutes State v. Miller Docket: 2007AP001052E 07-30-09 Criminal Law/ Sentencing Modification/ Constitutional Law/ Judicial Authority-Discretion/ Procedure State v. Fant Docket: 2008AP003056 07-28-09 PER CURIAM. John F. Fant appeals pro se from an order denying his sentence modification motion. We conclude that Fant's statutory claims are barred and his common law claims are meritless. We affirm. Criminal Law/ Sentencing/ Judicial Authority-Discretion State v. Mercado-Torres Docket: 2008AP002840 07-28-09 PER CURIAM. A jury found Angel A. Mercado-Torres guilty of two counts of first-degree sexual assault of a child. See WIS. STAT. § 948.02(1). The circuit court imposed consecutive twenty-year sentences, each comprised of fifteen years of initial confinement and five years of extended supervision. The only issue on appeal is whether the circuit court properly exercised its sentencing discretion. Because we conclude that it did, we affirm. Criminal Law/ Sex Offender Registration/ Statutes/ Statutory Construction-Interpretation/ Sentencing State v. Engebretson Docket: 2008AP002264 07-30-09 VERGERONT, J. This appeal concerns Wis. Stat. § 973.048(1m) (2007-08),[1] which authorizes the circuit court to require that a person convicted of specified crimes be required to register as a sex offender "if the court determines that the underlying conduct was sexually motivated as defined in s. 980.01(5)" and if it would be in the interest of public protection. Michael J. Engebretson pleaded guilty to stalking Kristi H. under Wis. Stat. § 940.32(2), which is included in the crimes listed in § 973.048(1m). The circuit court determined that his conduct was sexually motivated under the statutory definition because his motive was to induce Kristi H.'s son, Timothy, to resume a sexual relationship with Engebretson, which Timothy did not want. The court also decided that registration would be in the interest of public protection, and it ordered that Engebretson register. Criminal Law/ Traffic Stops/ Reasonable Suspicion/ Evidence State v. Moore Docket: 2008AP001463 07-28-09 PER CURIAM. Ernest Moore appeals a judgment of conviction for various drug possession charges and an order denying his postconviction motion. Moore argues he was entitled to the suppression of all evidence obtained from his traffic stop because the stop was illegal. He also argues the circuit court erred by permitting the State to introduce testimony about how the arresting officer believed the drugs were hidden. We affirm the judgment and order. Criminal Law/ Writ Of Coram Nobis/ Judicial Authority-Discretion/ Pleas State v. Gering Docket: 2008AP002254 07-28-09 PER CURIAM. Kenneth Gering, pro se, appeals an order denying his petition for a writ of coram nobis. Gering argues his conviction should be vacated due to errors in his plea hearing. We affirm. Family Law/ Divorce/ Maintenance Porto v. Porto Docket: 2008AP002139 07-30-09 BRIDGE, J. Julie Porto appeals a judgment of divorce from John Porto. She challenges the circuit court's ruling regarding maintenance, alleging three errors. First, Julie argues that the circuit court erroneously exercised its discretion when it imputed to John an earning capacity of $9.00 per hour. We disagree. Second, she argues that the court erroneously exercised its discretion when it took into account her earnings from both a full-time and a part-time job, but only imputed to John earnings for one full-time job. We disagree. Third, Julie contends that the court erroneously exercised its discretion by failing to consider her significantly higher health care costs. We agree. We therefore reverse and remand the matter for further proceedings consistent with this opinion. Family Law/ Divorce/ Maintenance/ Child Support/ Public Policy/ Marital Settlement Agreement (MSA)/ Taxation Consequences/ Estoppel/ Insurance Huhn v. Stuckman Docket: 2008AP003102 07-29-09 Recommended for Publication NEUBAUER, J. Robert C. Huhn appeals from a trial court order denying his motion to modify family support awarded to his former spouse, Carrie S. Stuckmann, p/k/a Carrie S. Huhn, under the terms of their marital settlement agreement. Robert moved to modify family support based on a substantial change in circumstances, including the change in primary placement of the parties' youngest child. Robert additionally requested the court to revisit the parties' responsibility for health insurance coverage and the assignment of a dependency tax exemption. Applying estoppel, the trial court denied Robert's motion on grounds that the parties had stipulated to nonmodifiable family support and did not address Robert's other requests. To the extent the nonmodifiable family support encompasses child support as well as maintenance, we conclude that it violates well established public policy prohibiting such agreements as to child support. Because the trial court erroneously applied estoppel and failed to consider the underlying component of family support, we reverse and remand for further proceedings on Robert's motion. Family Law/ Divorce/ Placement/ Best Interest Of Child/ Judicial Authority-Discretion Devore v. Bentrup Docket: 2008AP002818 07-29-09 PER CURIAM. Rick Bentrup, Jr., appeals from an order terminating a shared placement arrangement and awarding to his former wife, n/k/a Jennifer Devore, primary placement of Rick's and Jennifer's five-year-old daughter. We conclude that the altered arrangement represents a proper exercise of the trial court's discretion. We affirm. Family Law/ TPR/ Statutes/ Judicial Authority-Discretion State v. Bobbie Jo K. Docket: 2009AP001248 07-28-09 FINE, J. Bobbie Jo K. appeals the circuit court's order terminating her parental rights to Angel B. K. She contends that the circuit court did not consider all the factors the legislature directed courts to consider in making a decision whether to terminate a birth-parent's rights to his or her child. We disagree and affirm. Insurance/ Underinsured Motorist Law (UIM)/ Damages/ Default Judgment/ Notice/ Procedure/ Statutes Miller v. Hanover Insurance Docket: 2008AP001494 07-30-09 DYKMAN, J. Vearl Miller, Wanda Miller, and Ross, Dayne and Wade Miller[1] appeal from an order for damages after they obtained a default judgment on their amended complaint seeking underinsured motorist (UIM) coverage from Zurich American Insurance Company. The Millers contend that the court erred in limiting their damages based on the language in their amended complaint and in prorating the damages award between the plaintiffs.[2] OWI/ Reasonable Suspicion/ Traffic Stops/ Evidence State v. Guerino Docket: 2009AP000174 07-30-09 VERGERONT, J.[1] Guerino appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OWI) in violation of Wis. Stat. § 346.63(1)(a), second offense. He contends the arresting officer did not have reasonable suspicion to stop his vehicle and therefore the circuit court should have granted his motion to suppress evidence. We conclude the circuit court properly denied the motion. Accordingly, we affirm. OWI/ Traffic Stops/ Reasonable Suspicion Washington County v. Welch Docket: 2009AP000047 07-29-09 SNYDER, J.[1] Donald W. Welch appeals from a judgment adjudicating him guilty of a first offense of operating a motor vehicle while under the influence of an intoxicant (OWI). He contends that the circuit court erred when it denied his motion to suppress evidence obtained during the investigatory stop of his vehicle. Welch asserts that the stop was not supported by reasonable suspicion. We disagree and affirm the judgment. Personal Property Taxation/ Statutes/ Statutory Construction-Interpretation/ Constitutional Law-Due Process Xerox Corporation v. DOR Docket: 2007AP002884 07-30-09 Recommended for Publication HIGGINBOTHAM, P.J. This is a personal property tax case. The issue is whether certain Xerox Corporation multifunction copier/printer/scanner/fax devices (MFDs) leased to consumers by Xerox are exempt from personal property taxes under Wis. Stat. § 70.11(39) (2007-08).[2] The Tax Appeals Commission concluded that the MFDs were nonexempt under the statute, and the circuit court agreed. Xerox appeals, contending that the Commission's decision is entitled to no deference and that the MFDs are not taxable under the applicable statutes. Xerox also contends it was denied due process as a result of alleged procedural errors below. We conclude, applying great weight deference, that the Commission's decision was based on a reasonable interpretation and application of § 70.11(39). We also reject Xerox's due process arguments. Accordingly, we affirm the circuit court's order affirming the Commission's order.		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