Is personal service of a contempt motion required under Wis. Stat. section 801.14 (2), or is “notice and hearing” only required under Wis. Stat. section 785.03?

The Statutes

Wis. Stat. chapter 785 addresses “Contempt of Court.”

Wis. Stat. section 785.03, entitled “Procedure,” governs what type of service is required on a contempt motion:

(1) NONSUMMARY PROCEDURE. (a) Remedial sanction. A person aggrieved by a contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. The court, after notice and hearing, may impose a remedial sanction authorized by this chapter.

Case Law

In the case of Mansholt v. Kajian¹, the court stated that section 785.03 “only requires that (Kajian) receive notice and a hearing before the court could properly sanction him for contempt, and nothing in (section 785.03) indicates that there has to be personal service.”

The court went on to say that the reading of section 785.03(1)(a) was consistent with the Wisconsin Supreme Court’s decision in Joint School District No. 1, City of Wisconsin Rapids v. Wisconsin Rapids Education Ass’n², where the court held that, while actual notice of contempt proceedings is required, personal service of the order to show cause is not.

The court further held that actual notice satisfied due process requirements because the “primary reason for the requirement (of notice) is that the contemnor have an opportunity to appear and present whatever defense he might have to that charge.”

Prior case law also supports the notion that personal service is not required when proceeding with a contempt motion. In the case of Noack v. Noack³, the court stated that in “(section) 785.03(1) … requirements of ‘notice and hearing’ do no more than codify for remedial contempt situations that due process requirements of notice and an opportunity to be heard.”

Best Practice and Statutory Requirements

So, what are the takeaways from what to do when proceeding with a contempt motion in a family law case?

Best practice seems to be proceeding with personal service over the contemnor, so that there can be no question that the person was notified.

However, personal service is not statutorily required. Nor is it required by case law in the state of Wisconsin.

As long as there is proof that the contemnor was notified of the hearing by providing notice and an opportunity to be heard, the legal requirement of proper service on the contemnor will allow the court to proceed with the contempt hearing.

Endnotes

¹ 2013 AP 1666, 352 Wis. 2d 575 (Ct. App. 2013) (unpublished decision)

² 70 Wis. 2d 292, 234 N.W. 2d 289 (1975)

³ 149 Wis. 2d 567, 577, 439 N.W. 2d 600 (Ct. App. 1989)