COURT OF APPEALS

DECISION

DATED AND FILED

May 27, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP107 Cir. Ct. No. 2018FA119

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN RE THE MARRIAGE OF:

CATHERINE WILCOX,

 PETITIONER-APPELLANT,

 V.

JEROME WILCOX,

 RESPONDENT-RESPONDENT.

APPEAL from a judgment and an order of the circuit court for 

Douglas County: KELLY J. THIMM, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2019AP107

2

¶1 PER CURIAM. Catherine Wilcox appeals from a judgment of 

divorce, in which the circuit court ordered the partial reimbursement of filing fees, 

and from an order denying what her notice of appeal designates as a “Motion to 

Amend the Judgment.”1 We conclude the circuit court did not err by ordering the 

filing fee reimbursed because Catherine agreed to pay the fee at the final divorce 

hearing. Moreover, treating Catherine’s postdivorce motion as one for relief from 

the judgment, we conclude the court did not erroneously exercise its discretion 

when it denied that motion. We affirm.

BACKGROUND

¶2 Catherine attempted to file a petition for divorce, which was denied 

because it was unaccompanied by payment of the filing fee and her petition for 

waiver of fees and costs was denied. The executive director of Wisconsin 

Judicare, Inc., which was representing Catherine, sent a letter to the Douglas 

County Clerk of Courts questioning whether the clerk was improperly rejecting 

partially completed CV-410 forms.2 Catherine filed a second petition for the 

waiver of fees and costs, which was granted by a court commissioner. The order 

granting the petition notified Catherine that she might be required to pay fees later 

if the circuit court determined she had the ability to pay, in accordance with WIS.

STAT. § 814.29(2) (2017-18).3

 

1

 Because the parties share a surname, we refer to the parties by their given names.

2

 The CV-410A form is a standard form petition seeking waiver of fees and costs and 

includes an affidavit of indigency. 

3

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2019AP107

3

¶3 Catherine and Jerome were granted a stipulated divorce on 

October 8, 2018. Jerome had waived his appearance at the final divorce hearing, 

and Catherine provided testimony supporting the terms of the parties’ marital 

settlement agreement. Catherine testified her monthly income was $863 and

Jerome’s monthly income was $1135. After ordering the divorce, the circuit court 

noted that the $184.50 filing fee had been waived and stated it would require the 

parties to reimburse that fee in equal amounts. 

¶4 The circuit court inquired about the possibility of a payment plan to 

reimburse the filing fee at a rate of $25 per month. Catherine represented that her 

mortgage was $1000 per month, and she requested clarification about the basis for 

the fee. The court explained that it was for filing the case and that her share of the 

fee was $92.25, after which Catherine stated, “I’ll pay it all at once.” The court 

then asked Catherine by when she could have it paid, and she responded, “Today.” 

Based upon that representation, the court ordered that Catherine’s share be paid on 

that date, and it ordered Jerome to pay his share at a rate of $50 per month. 

¶5 After Catherine paid the fee,4she filed a postdivorce motion seeking 

modification of the divorce judgment to remove that portion requiring her to pay 

the filing fee. The motion invoked WIS. STAT. § 806.07(1)(a), (1)(g) and (1)(h), 

asserting that the circuit court was without authority under WIS. STAT. § 814.29 to 

order repayment of the previously waived filing fee. Specifically, Catherine noted 

there had been no finding in the final order that suggested Catherine had the ability 

 

4

 Wisconsin Judicare represents on appeal that it paid Catherine’s share of the filing fee 

on her behalf immediately following the hearing. 
No. 2019AP107

4

to pay the fee, she was no longer indigent, or she was not represented by a legal 

services organization. See § 814.29(1)(d), (2). 

¶6 The circuit court denied the motion following a hearing. It 

concluded that the matter was moot because the fee had been paid or, in the 

alternative, that Catherine could be required to pay her portion of the fee because 

she had represented at the hearing that she could pay it. Catherine now appeals.5

DISCUSSION

¶7 As an initial matter, we reject the circuit court’s conclusion that the 

mootness doctrine applies in this instance because the filing fee had been paid. An 

issue is moot when its resolution will have no practical effect on the existing 

controversy. State ex rel. Olson v. Litscher, 2000 WI App 61, ¶3, 233 Wis. 2d 

685, 608 N.W.2d 425. Clearly, the issue is not rendered merely academic here by 

the payment of the filing fee, for if the circuit court lacked authority to order that 

fee in the first instance, Catherine would be entitled to have her payment refunded. 

¶8 However, we reject Catherine’s attempt to directly challenge the 

reimbursement provision of the divorce judgment. Assuming her appeal as to that 

 

5

 Although Jerome is identified as the respondent to this appeal, the reimbursement 

requirement Catherine challenges does not affect him and he has not filed a response brief. 

Accordingly, this appeal was taken under submission only with Catherine’s brief-in-chief. 

This court has also received a letter from the circuit court alerting us to the likelihood that 

no party would be arguing in support of its decision. The court advised us that it did not continue 

waiving the filing fee because Catherine represented at the final divorce hearing that she could 

pay her share of the filing fee immediately. The court stated, “I believe that one of the best ways 

to determine someone’s ability to pay is to ask them.” 
No. 2019AP107

5

judgment is timely,6the record confirms that she did represent to the circuit court 

that she could repay her share of the filing fee as of the date of the final hearing. 

This representation was unaccompanied by any objection to reimbursement; 

rather, Catherine only expressed her initial confusion about the reason for the fee. 

Under these circumstances, even if the court incorrectly determined in this case 

that reimbursement could be ordered under WIS. STAT. § 814.29, Catherine’s 

failure to object to the imposition of the fee and her representation that she could 

immediately pay her share of the filing fee preclude review. See State v. 

Freymiller, 2007 WI App 6, ¶¶15-17, 298 Wis. 2d 333, 727 N.W.2d 334 (2006) 

(noting that appellate courts typically decline to review issues on which the 

appellant has invited error and/or waived any objection). Furthermore, Catherine 

advances no argument as to why we should not apply the forfeiture doctrine here.

¶9 That leaves the issue of whether the circuit court erred by denying 

Catherine’s postdivorce motion seeking to modify the divorce judgment. On 

appeal, she incorrectly frames her motion as one for reconsideration. The motion, 

however, specifically invoked the grounds for relief identified in WIS. STAT.

§ 806.07(1)(a), (1)(g), and (1)(h). We review a court’s decision under § 806.07(1) 

for an erroneous exercise of discretion. McFarland State Bank v. Sherry, 2012 

WI App 4, ¶20, 338 Wis. 2d 462, 809 N.W.2d 58 (2011). 

¶10 Catherine does not address any of the prongs for relief advanced 

under her motion. See WIS. STAT. § 806.07(1)(a) (pertaining to mistake, 

inadvertence, surprise, or excusable neglect); (1)(g) (pertaining to the equity of the 

 

6

 We note Catherine’s appeal appears to have been filed in excess of ninety days after the 

judgment was entered, the longest time period provided by statute to initiate an appeal. See WIS.

STAT. § 808.04(1). 
No. 2019AP107

6

judgment having prospective application); (1)(h) (authorizing reopening the 

judgment for any other reason justifying relief). Rather, she merely reiterates that 

the circuit court was without legal authority to require reimbursement of the filing 

fee in the first instance. 

¶11 Again, even if the premise of Catherine’s argument is true and the 

circuit court lacked the statutory authority to require reimbursement, this fact 

alone is insufficient to demonstrate an erroneous exercise of discretion in denying 

her postdivorce motion. While we recognize the importance of following the 

requirements in WIS. STAT. § 814.29(2), we cannot conclude the court erroneously 

exercised its discretion in this case. The court was guided by Catherine’s 

unqualified representation at the final hearing that she could pay the fee. Absent 

any appellate argument regarding the cited bases for relief under WIS. STAT.

§ 806.07, Catherine has not met her burden, and we decline to reverse the order 

under the circumstances here. We will not reverse a discretionary determination if 

the record shows that discretion was in fact exercised and we can perceive a 

reasonable basis for the court’s decision. Miller v. Hanover Ins. Co., 2010 WI 75, 

¶30, 326 Wis. 2d 640, 785 N.W.2d 493. 

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.