1 STATE OF WISCONSIN CIRCUIT COURT CHIPPEWA COUNTY

r Branch I
2

3 In re the Marriage of:

4 JEFFREY P. ERBS,
TRANSCRIPT OF PROCEEDINGS
5 Petitioner, Case No. 10FA11
and (Moti.onHearing)
6
MARY ANN ERBS,
7
Respondent.
8

10 The above-entitled matter coming on to be

11 heard before the Honorable Roderick A. Cameron, Circuit

12 Court Judge, on the 8th day of July, 2010, commencing

13 at the hour of 9:35 p.m. at t~e Courthouse in the City of

14 Chippewa Falls, County of Chippewa, State of Wisconsin.

15

16 APPEARANCES:

17 JEFFREY P. ERBS, the Petitioner, appearing pro se.

18 PAMELA J. VEITH, Attorney at Law, P.O. Box 1628,

19 Eau Claire, Wisconsin 54702, appearing as counsel for and

20 on behalf of the Respondent.

21

22

23

24
,
;.,~'~ 25
 1 PROCEEDINGS:

2 THE COURT: This ~s Case 10 FA 11. It's in

3 reo The Marriage of Jeffrey P. Erbs. Petitioner. and

4 Mary Ann Erbs. Respondent. Mr. Erbs appears in person

5 and is self-represented. Ms. Erbs appears in person

6 with Attorney Pamela Veith. This is the time :or tr.e

7 Court to hear motions, at least to the extent that ti~e

8 allows. I believe all the motions are Mr. Erbs' Am I

9 correct, Ms. Veith?

10 MS. VEITH: Yes, you are, Your Honor.

11 THE COURT: Mr. Erbs, how do you wish to

12 proceed on your motion? Which one do you want to take

13 up first?

14 MR. ERBS: The most I want to move on first

15 is I want you to take judicial notice of your oath and

16 the constit~tions of Wiscop.sin and the United States.

17 THE COURT: For what purpose?

18 MR. ERBS: You are a defendant.

19 THE COURT: What?

20 MR. ERBS: You are a defendant in a Writ of

21 Mandamus.

22 THE COURT: That :ile was assigned to Judge

23 Cray.

24 MR. ERRS: You are a defendant. There is no

25 way you can be unprejudiced and unbias.

2
 1 THE COURT: That's for another judge to

2 decide.

3 MR. ERBS: Ask for another judge to decide

4 that then.

5 THE COURT: I believe I'm impartial as any

6 judge can be to both parties and your allegation

7 doesn't have any factual basis presented at this point,

8 so I have no basis to even consider it.

9 MR. ERBS: There is a Writ of Mandamus that

10 explains a lot of it, Your Honor.

11 THE COURT: Those are only allegations and

12 not proof. I think you are going to find something

13 out. You are going to find that one circuit judge

(-~
.. 14 cannot order another circulL judge to do something or

15 ~ot do something. I think the writ should have been

16 filed with the Court of Appeals. That's a different

17 issue.

18 MR. ERBS: I think your oath says you sha~l

19 not do what you are doing right now, Your Honor.

20 THE COURT: What am I doing what I am not

21 supposed to do?

22 MR. ERBS: : don't ~now tow you can proceed

23 where you are a defenda~t lr.a case against you by me.

24 THE COURT: Well, that was your choice to

25 bring it and the fact that you bring an action in a

3
 1 separate co~rt to change one of the .decisions ln this

2 case doesn't mean I am bias.

3 MR. ERBS: "l's on there to change any o~

4 your decisions.

5 THE COURT: I looked at it yesterday and I

6 realized it was not a motion for this case but a

7 separate action and you are asking for my decisions to

8 be overridden by another judge and I be ordered to make

9 changes in what I decided, right?

10 MR. ERBS: No, that is wrong. In the writ T

11 am asking you to make decisions that are well over

12 your 90-day limit for making decisions. According Lo

13 Supreme Court Rule 730.36, you are well over that.

14 THE COURT: I don't know what's been pending

15 for more than 90 days for a decision.

16 MR. ERBS: That decision for the February 26

17 hearing.

18 THE COURT: What were those?

19 MR. ERBS: I can get them out.

20 TEE COURT: Ms. Veith wasn't even on board at

21 that point, so she couldn't have even responded to

22 that.

23 MR. ERBS: No one has :0 respond to it for a

24 default judgment.

25 THE COURT: The 90-day period, Mr. Erbs,

 1 doesn't start until the case :s ready fo~ decision.

./ 2 If we need a hearing on that and Mr. Veith wanted to

3 respond, that starting time for a 90-day period for tte

4 determination is not -- would not have started.

5 MR. ERBS: That's not for you to declde.

6 That's for another judge to decide. Again, I ask for a

7 ~escheduling of this hearing.

8 THE COURT: I'm goi~g to deny the motion.

9 We have a lot of motions that you have filed here and -

10 think we should go through them. I'll just go back to

11 the motions that were filed after the last hearing. We

12 will just take them one at a time.

13 MR. ERBS: I do not see where you have

14 jurisdiction.

15 THE COURT: On w~at basis?

16 MR. ERBS: According to your oath and the

17 constitutions of Wisconsin and the United States.

18 THE COURT: Will yo~ cite some more specific

19 facts to support your a:legations?

20 MR. ERBS: No way I said there is no way -

21 can see that you would ever be nondiscriminatory and

22 unbiased in a situation such as this.

23 THE COURT: What's t~e basis for your belief

24 that I am biased?

25 MR. ERBS: The same basis that I don't have a

5
 1 decision from which was, actually, January 19 and was

t--'" 2 brought to your attention on February 26.

3 THE COURT: What was that motion about I'~

4 supposed to decide?

5 MR. ERBS: Pardon me?

6 THE COURT: What was your motion for

7 February 26?

8 MR. ERBS: It was a default -- default

9 judgment and there were also --

10 THE COURT: Well, what default?

11 MR. ERBS: -- asking for rellef from the

12 disqualification motion.

13 THE COURT: You've got a request for a

f -""',
14 default judgment and the default judgment would be for

15 what?

16 MR. ERBS: That would have been in the

17 January 19 so-called temporary hearing where

18 Commissioner Ferg left the ltem of maintenance open and

19 also I asked for continuation of insurance benefits and

20 the payment of all medical expenses.

21 MS. VEITH: Your Honor, if I may, I think I

22 may clarify this. From my understanding, when Mr. Erbs

23 scheduled the first temporary hearing in front of

24 Commissioner Ferg, shortly thereafter my client had

25 retained Mr. Liptak. Mr. Liptak's office, as I

6
 1 understand from information provided by Ms. Erbs,

f 2 contacted Mr, Ferg to reschedule that temporary heacing

3 because he was not available. It was Mr. Liptak's

4 understanding and my client's understanding that the

5 hearing was rescheduled. Unfortunately, it did not get

6 changed for some reason on Mr. Ferg's calendar and

7 Mr. Erbs was not notified it was rescheduled, so he

8 appeared on January 19. ~y client, Mr. ~iptak, did not

9 appear. The Court proceeded with the hearing at that

10 time. I think what Mr. Erbs is arguing, that :or so~c

11 reason because of my client's failure to appeac at Lhat

12 hearing, he is entitled to default judgment in this

13 entire case, which, obviously, is not correct.

14 TEE COURT: Is that your argument, Mr. Erbs?

15 MR. ERBS: I did not say the entire case and

16 I would like to object.

17 THE COURT: What do you want for a default

18 judgment?

19 MR. ERBS: The maintenance issue, the payment

20 of medical funds and the continuance of insurance

21 coverage.

22 THE COURT: You have a response on that

23 besides anything you have already said?

24 MS. VEITH: In terms of the maintenance

25 issue, my client, Ms. Erbs, is not residing in the

7
 1 residence. My client would want possession of the

r ' 2 residence, but she was at the first temporary hearing,

3 in lieu of maintenance, was ordered to make that

4 mortgage payment on the residence, so.

5 MR. ERBS: Objec~ion. There's r.o transcript

6 from that hearing. There 1S no way that Attorney Veitr.

7 would have any idea what was said at that hearing.

8 MS. VEITH: Well, it's in the order, 1t'S ln

9 the written order that she is ordered to continue to

10 pay the mortgage payment on the residence.

11 THE COURT: You have got an amended temporary

12 order in the file here, Mr. Erbs, that was filed

13 February 1. Number 1 is respondent is making monthly

{ \
14 mortgage payments on residence where petitioner

15 resides. Whether the respondent is entitled to a

16 credit is left open for final hearing. Number 3 talks

:7 about the -- about your bows -- your son's bows and

18 arrows, and Number 2 talks about temporary possess10n

19 by Ms. Erbs of a china setting from her first marriage,

20 sterling silver flatware from first marr1age, her

21 mother's sterling silver flatware and her personal

22 belongings such as clothes and ~oiletries. I don't

23 think it mentions health ir.surance in here. It

24 certainly mentions that Mr. Erbs is residing in the

25 residence and she's going to make the mortgage

8
 1 payments.

( 2 MR. ERBS: What you are looking at is the

3 Amended Temporary Order.

4 THE COURT: Right.

5 MR. ERBS: That was on February 1.

6 THE COURT: Correct.

7 MR. ERBS: The temporary hearing was on

8 January 19. This is when the items ot maintenance ana

9 payment of medical of medical expenses and the

10 continuance of health care insurance was brought up,

11 and since it was the respondent -- neither the

12 respondent nor her attorney were present there as part

13 of that -- I don't have that with me -- out it says

14 there that the judge would rule irregardless of and

15 that's also part the Court Commissioner's too. No one

16 was there. You don't s~ow up, you lose your due

17 process. I asked for t~ose things then and I haven't

18 gotten them yet.

19 THE COURT: Okay. I'm going to, on the

20 record, deny your motio~ for a default judgment. A

21 temporary hearing was held shortly after the action was

22 started. It was held within the 120 days. Less than

23 120 days after the action was held, the Court can't

24 even hear anything at t~at time. There was an Answer

25 filed by Mr. Liptak at some point here on January 20,

9
 1 so the issues were contested, so it'.s not as though :hc

( .~ 2 issues werer.'t contested. Court Commissioner ?erg,

3 according to the original temporary order, held

4 maintenance open at tha: time, so he, obviously, denoed

5 your motion as we"l and, technically, it's very

6 difficult to get a default judgment in a divorce. I've

7 never had it happen.' : mean, you can get them after

8 the 120 days if somebody doesn't appear and never shows

9 up in the action, but in this case the representation

10 from Ms. Veith is that Ms. Erbs' former attorney

11 obtained a different da:e for :he temporary hearing

12 because he was unava1lable and for reasons probably

13 not --

14 MR. ERBS: Why wasn'c it asked for on

15 February 1st then?

16 THE COURT: ~ don1t know. I wasn't there.

17 MR. ERBS: What you are doing here 1S

18 legislating from the ber.ch because there was

19 THE COURT: Mr. Erbs, stop. The issue of

20 default judgment is done. I am denying it one hundred

21 percent.

22 MR. ERBS: You are denying myself maintenance

23 also?

24 THE COURT: I am not yes, for now I am

25 because it hasn't been brought up as an issue in this

10
 1 court. What I am saying is Ms. Erbs still makes the

(\ 2 mortgage payments. You still cive in the house.

3 MR. ERBS: And I have no income.

4 THE COURT: I can cancel her obligation to

5 payment mortgage payments and have her pay maintenance

6 in the same amount which will be taxable.

7 MR. ERBS: Mai~te~ance would be half of her

8 gross pay.

9 THE COURT: That's a starting point under

10 ~aRocgue, not a final answer. We have other motions

11 you filed here.

12 MR. ERBS: I am going to ask for this court

13 :0 adjourn right now. I can see where this is going,

"
,
14 what I figured you were going to do here when I came

15 into this court and it was scheduled for 45 minutes

16 with all these motions you are going to run through.

17 You are not going to allow me to make a record on any

18 of this and you weren't going to take any evidence and

19 what you are going to do is run through it and make it

20 impossible for me to have anything on the record to

21 appeal and that's exactly what you are doing here.

22 THE COURT: Do you want to respond,

23 Ms. Veith?

24 MS. VEITH: Sure, Your Honor. Mr. Erbs can

25 appeal any decision by this Court on an interlocutory

11
 1 appeal, if he wishes. I will advise the Court at this

/. '\
2 point so Mr. Erbs is aware, I have reviewed all of his

3 motions. All of them, with the exception of his motion

4 to compel discovery, are without merit and also no

5 basis. In fact, no basis ~n law for any of his motions

6 except the motion to compel discovery.

7 On the motion to compel discovery, I will

8 advise the Court of this: In the transfer of the file

9 that I received from Mr. Liptak, the discovery, which

10 is a one-page statement, and I can provide a copy to

11 che Court, is not in the proper form. It wasn't in ~r.e

12 pleading, so it cook me some time to find it and to

13 realize this was actually a request for discovery. We

f\
14 have been working on the discovery. It is almost

15 complete. My client will probably review the responses

T
16 today and sign them and I will get them to Mr. Erbs.

17 certainly will get them to him wichin the ten-day

18 period that he requested in his written motion. One of

19 Mr. Erbs' motions is to disqualify me, apparently, or

20 have the Court disqualify me, which we have already

21 decided.

22 The point is this: If Mr. Erbs continues

23 along this path in filing ~otions that are without

24 merit, we will seek the appropriate relief from the

25 Court, including our request for attorney's fees. I

12
1 will also advise the Court that Mr. Erbs' health

2 ~nsurance has been maintained through my client th~ough

3 her employment. He continues to have health ~nsurance.

4 That is my response to the various motions that

5 Mr. Erbs has filed.

6 THE COURT: You wish to respond to that,

7 Mr. Erbs?

8 MR. ERBS: Yes. I obJect to Attorney Ve~th

9 acting as judge, Jury and hangman. We haven't had any

10 of this in front of a court. That's her opinion, only

11 her opinion, not having to do with fact, and what sr.e

12 says is undoubtedly her opinion, just as what T put

13 down here is what I think and that's why we have

14 courts, to decide issues l~ke this.

15 TEE COURT: Well, let's address the issue.

16 You raised an issue again in your motions here that

17 were filed, I think, on June 20th to disqualify I

18 actual ordered them to be filed within ten days of the

19 hearing on April 22, but you filed motions June 20th.

20 One is to again disqualify Attorney Pame:a Veith and we

21 made a full record on that at the last hearing. I read

22 the transcript of the last hearing and I don't see any

23 basis in fact for the Court, one, to reconsider it or,

24 two, if I did reconsider it, to grant it. There is no

25 indication from any of your statements that Ms. Veith

13
 1 obtained any information from Attorney Liptak that

r" \ 2 pertain to his representation of you in your divorce

T

3 from your first wife.

4 MR. ERBS: How do you know?

5 THE COURT: You need to prove it that she go~

6 information from him. She testified or stated to the

7 Court as an officer of the court -- let me finish

8 that she received the file from Mr. Liptak, that there

9 were no handwritten notes in there from him. It was

10 just, basically, a pleading and the documents that she

11 is entitled to have from the previous attorney. She

12 had no information from him based on what she stated ln

13 court on April 22 as to any communications Ms. Erbs

14 made to him or that you might have made to him at some

15 point back during the limited time he represented you

16 in a post-divorce proceeding from your first marriage.

17 And I granted the motion to disqualify because,

18 technically, he was disqualified. I did not find he

19 actually received or had my knowledge that would have

20 made his representation a conflict of interest, but

21 there is a presumption there. That's why I

22 disqualified him.

23 There's also no evidence in the record that

24 he had done anything improper. That wasn't the

25 standard. The standard was the appearance, so I

14
 1 disqualified him and Attorney Mullen and Ms. Erbs is

2 here and Attorney Veith and the disqualification of the

3 first law firm doesn't extend to the firm that receives

4 the file in the new case.

5 MR. ERBS: No, it doesn't, but it does apply

6 ~o the file and the records.

7 THE COURT: Not as I'm ruling. You can

8 appeal that.

9 MR. ERBS: No, you are to deal on facts.

10 THE COURT: Mr. Erbs, I have made my

11 decision. Don't press me on this. We have more

12 motions here.

13 MR. ERBS: You are doing exactly as I figured

14 you would. You are runnlng through all of this.

15 That's what you are doing.

16 TEE COURT: Do you have some evidence you

17 wish to present showing some conflict :rom Ms. Veith,

18 improper knowledge she has?

19 MR. ERBS: No. 1 would like to have time to

20 get that.

21 THE COURT: Today, the motion 1S denied. You

22 have not presented any such thing.

23 MS. VEITH: Your Honor, I would note for the

24 record, when we were here --

25 THE COURT: April 22.

15
 1 MS. VEITH: -- April 22 .-

/ 2 THE COURT: Two and a half months ago.

3 MS. VEITH: Right. if Mr. Erbs needed

4 time to get received -- two and a half months to get

5 information, he knew this date was scheduled back at

6 that hearing. He has an obligation to present the

7 evidence. He hasn't done so.

8 MR. ERRS: I think the evidence is ln my

9 motion in the affidavit.

10 THE COURT: I read it. = did not find any

11 evidence in there that justified that. We are going to

12 move on, Mr. Erbs.

13 MR. ERBS: No. I a~ going to present that te

14 the court.

15 THE COURT: No, you are not. That lssue is

16 over. I decided that April 22. You presented nothi~g

17 new to the Court except allegations of law.

18 MR. ERBS: You are not allowing any evidence,

19 evidentiary hearing. All we are doing is scheduling.

20 That's what was accomp:ished at the scheduling

21 conference, that's it. No evidentiary hearing, no

22 motions brought for you to rule en and, once again, I

23 would like to you to ta~e judicial notice of your oatr.,

24 the Wisconsin Constitution and the Const:tutio~ of the

25 United States.
 1 THE COURT: Okay. You had a motion you fl:ed

( 2 after the last hearing on April 30, a motion to strike

3 the pleading and we discussed that already in this

4 hearing. Do you have any additional comments or

5 argument you want to make in support of that motion to

6 strike the pleading?

7 MR. ERBS: Where did we discuss that?

8 TEE COURT: A~ the start of this hearing we

9 discussed it. You alleged --

10 MR. ERBS: Reporter, could you read it back

11 to me, please?

12 TEE COURT: We are not reading it back. You

13 alleged that because Mr. Liptak and Ms. Erbs didn't

14 appear for a temporary ~earing, you could have all 0:

15 :he pleading that she filed stricken and get a defa~it

16 judgment for whatever you were asking for and I denied

17 :hat already in this hearing, so I'm also denying the

18 part of the motion that would require the Court to

19 strike the pleading. There is no is basis in law for

20 that.

21 MR. ERBS: Why haven't we heard any evidence

22 on that?

23 THE COURT: What evidence would there be to

24 strike the pleading?

25 MR. ERBS: How about the validity of a

17
 1 contract? How about the value of his work?

( 2 TEE COURT: Whose work?

3 MR. ERBS: There is fraud i~vo:ved i~ this

4 case. Ms. Erbs knew or should have known that ~he

5 hiring of Mr. Liptak was in violation of law.

6 Certainly, Mr. Liptak should have known that.

7 THE COURT: Let's assume that :s correct.

8 How does that justify the Court striking the ~~swer and

9 letting you get whatever you want without regard to the

10 facts of the case?

11 MR. ERBS: Because there was fraud committed

12 in the case and that vlolates any contract. There is

13 fraud involved not only by the respondent and the

14 hiring of Mr. Liptak under, I presume, the vote by Mark

15 Mullen, but also by Mr. Liptak taking the job oecause

16 in some of the court cases that : have gone through, iL

17 says when there's a doubt in conflict of interest

18 cases, violations of conf:dences, both have to be to

19 disqualified. We also have an attorney that will even

20 do anything that appears to be inappropriate.

21 THE COURT; I agree with that.

22 MR. ERBS; Uh-huh.

23 THE COURT: That's why I disqualified him,

24 because there was an appearance. There is no evidence

25 that anything improper actual:y occurred.

18
 1 MR. ERBS: There doesn't need to be.

2 THE COURT: Not for a disqualification, no.

3 MR. ERBS: I believe it is a rebuttable

4 presumption that there had been confidences exchanged

5 between Mr. Liptak and myself and also between Mr.

6 Liptak and the respondent. They had an attorney --

7 attorney-client relationship.

8 THE COURT: That may be, but it doesn't

9 Justify Ms. Erbs being told that ~er pleadings are

10 stricken, her Answer is stricken, her Counterclaim 1S

11 stricken and you get whatever you want without regard

12 to the actual facts in the case. That's what you are

13 asking for, correct?

f ..
'
14 MR. ERBS: I am asking for you to take

15 judicial notice of your oath, of the wisconsin

16 Constitution and also the Constitution of the United

17 States and you are violating my rights to a fair trial

18 right now for you to even be sitting up in this court.

19 THE COURT: We haven't scheduled the trial

26 yet, Mr. Erbs.

21 MR. ERBS: How are you making orders right

22 then?

23 THE COURT: These are pretrial motions. I

24 think the phrase a little knowledge is a dangerous

r
, 25 thing applies to your situation here. You have limited

19
 1 knowledge of legal proceedings. You are interpreting

( 2 them the way you would like them to be interpreted, and

3 there are laws I'd like to ir.terpret differently at

4 times as well and the fact is I can't choose my

5 interpretation. I have to choose the interpretation

6 that everybody is required to fo:low, which is what you

7 are required to follow as well and, unfortunately, you

8 don't understand or don't ~ave the knowledge or refuse

9 to accept, whatever it is, that some of your

10 interpretations aren't t~e ones that are generally

11 accepted and ones you are proffering to the Court are

12 not the interpretations that the courts of Wisconsin

13 have followed since the state came into existence in

14 1848.

15 MR. ERBS: On January 19 there was two cases

16 of mine heard by Commissioner Ferg and he definite:y

17 did orders without the other party being there. Okay.

18 And that's what it says also in the summons. If you

19 are not there, that's it, it's a default. That's what

20 it also says in the commissioner's duties also. If

21 there is no one there, it's a default, you make the

22 ruling.

23 THE COURT: I am denying the motion for a

24 default judgment for the basis -- for the reasons I sec

25 forth in the record already. If you want to appeal

20
 1 this to the Court of Appeals, I have no objection to

2 :hat.

3 MR. ERBS: I move for adjournment.

4 THE COURT: As I said, the Court of Appeals

5 has reversed me and I suspect they will reverse me

6 again.

7 MR. ERBS: Let's go at it, stop this, right?

8 I will do an interlocutory appeal.

9 THE COURT: In the meantime, we need a •

10 temporary order. I am going to order Ms. Veith to

11 provide discovery within ten days of today. You wan:ed

12 that, right?

13 MR. ERBS: I wanted it on February 18.

14 THE COURT: Well, the motion was brought to

15 the Court for hearing today ana today I'm deciding that

16 she is to provide the required discovery to you wit~in

17 ten days in writing. Is L~at satisfactory to you or

18 not?

19 MR. ERBS: One thing.

20 THE COURT: What's the one thing?

21 MR. ERBS: The discovery.

22 THE COURT: I ordered her to provide it

23 within ten days. Are you objecting to that?

24 MR. ERBS: No.

THE COURT:
• Okay. Your motion to disqualify
(
, 25

21

o
 1 Attorney Veith was denied at the hearing on April 22

\ 2 and the Court stands by that decision. It will not

3 change its decision. I don't have any basis in fact or

4 law to do that except some unsupported allegations ~n

5 your documents.

6 MR. ERBS: Unsupported allegations? I nave

7 plenty of support ln here for that.

8 THE COURT: I have read all your pleadings

9 this morning.

10 MR. ERBS: = would like to read that.

11 THE COURT: If you don't stop interrupting,

12 you are going to be ~n contempt. Let me repeat what I

13 said. I read all your pleadings this morning. No

14 basis ln any your pleading to disqualify Attorney

15 Veith.

16 MR. ERBS: I would like to make an offer of

17 proof for appeal, Your Honor.

18 THE COURT: What's your offer of proof?

19 MR. ERBS: You read my affidavit and motion.

20 MS. VEITH: I believe :he motion and

21 affidavit has been filed. It's on record with the

22 Court. It's already part of the record. If Mr. Erbs

23 does, in fact, take an interlocutory appeal, the record

24 that is on file with the court goes up. The Court of

25 Appeals will have it.

22
 1 TEE COURT: That's abso~utely correct,

,
/
2 Mr. Erbs. The document is already on fi:e. The Courl

3 of Appeals can read it just as well as you can. The

4 only other issue I think we haven't addressed is Mr.

5 Erbs' motior. for contempt against Ms. Erbs and I

6 believe it refers to return of property that was

7 ordered to be glven to Mr. Eros. I think it was his

8 son's bow and arrow set, is that right?

9 MS. VEITH: Yes, Your Honor. _ can provide

10 the Court with my client's response to that.

11 THE COURT: What's her response?

12 MS. VEITH: The response is this: The bow

13 and arrows that the Court lS speaking of Mr. Erbs

(
14 actually had given to Ms. Erbs' grandson.

15 MR. ERBS: Object. Is Ms. Veith giving

16 testimony? This is hearsay.

17 MS. VEITH: I car. certainly call my client to

18 have her testify and ma~e an offer if the Court wishes

19 to have testimony.

20 THE COURT: Well, I think we should some

21 testimony here. Ms. Erbs, come up to the clerk and be

22 sworn.

23 MARY ANN ERBS

24 called as a witness, and being first duly sworn, was-

25 examined and testified as follows:

23
 1 THE COURT: Have a seat to my left, please.

,/ 2 DIRECT EXAMINATION

3 BY MS. VEITH:

4 Q Will you state your full name, please?

5 A Mary Ann Erbs.

6 Q Ms. Erbs, you are the respondent in this matter?

7 A Yes.

8 Q You have read Mr. Erbs' motion requesting that the

9 Court hold you in contempt?

10 A I have.

11 Q One of the allegations by Mr. Erbs is that, apparently,

12 the bow or arrows were not returned to him as required

13 by the Court's order?

14 A Well, the bow was returned to him along with new

15 arrows. The bow was given to my grandson, Ryan. He

16 denies that at this time, but it was given to him. He

17 told him it belonged to Thomas. It was a yout~ bow ar.d

18 that this -- how special it was and he should take good

19 care of it and that it did have -- need some repairs

20 because whatever you call it was, you have to pull it,

21 et cetera, so Ryan accepted the bow. He was thrilled

22 because he and Thomas were quite close, actually, and

23 he had it fixed. He had a quiver put on it. The

24 arrows that were with the bow were blaze orange and

25 they were kind of aluminum and more like practice-type

24
 1 arrows, not very strong.

2 Anyway, when Jeff demanded the bow back in

3 the fall. I did get the bow and returned it to him.

4 They had new arrows in there because the original

5 arrows were broken. They did remove the quiver which

6 they had purchased because there was none on there,

7 but, otherwise, the bow was in better shape than it was

8 when Ryan was glven it.

9 Q There was also, apparently, some magic marker written

10 on the bow?

11 A His mother had written "In memory of Thomas Erbs" and

12 at the time Jeff actually saw that and thought it was

13 nice.

14 Q Whose mother wrote that?

15 A Ryan's mother, my daughter-ln-law.

16 Q All right. Mr. Erbs also alleges that you damaged the

17 locks at the residence on or about January 15 or 16.

18 A I did go to the home on the evening of January 15 after

19 work. I had left when I went to work on the 11th of

20 January, which is a Monday. I had taken some clothes

21 with me and I e-mailed Jeff and told him I was not

22 coming back for awhile because I needed some space and

23 if he needed to contact me, he should call me at work

24 or call my cell phone. I went there on the evening of

25 the 15th and I couldn't get into the house. The locks

25
 1 had been changed.

2 Q January 15, was that before or after the first

3 temporary hearing?

4 A That was before because that first one was on the 19th

5 which, actually, c didn't go to because it was

6 rescheduled and, in fact, Les LiptaK had called Jeff

7 from his office and told hin that he had gotten it

8 rescheduled. He was calling because it was Martin

9 Luther King Day and there wouldn't be any mail to go

10 out. That's why he called hi~.

11 Q You originally had possession of the original -- your

12 original copies of tax returns that were filed wlth the

13 Department of Revenue and the Internal Revenue Service,

f~
14 is that correct?

15 A Yes.

16 Q Have you returned those tax documents to Mr. Erbs?

17 A Yes. I made copies of all of them and then I had the

18 originals returned to them. Actually, Stanley LaRue,

19 who is a neighbor and friend of both of ours, took

20 those returr.s back to Jeff.

21 MS. VEI,H: Those are all the questions I

22 have, Your Honor.

23 THE COURT: ~r. Erbs, do you have my

24 questions for Ms. Erbs?

25 MR. ERBS: Yes.

26
 1 CROSS-EXAMINATION

2 BY MR. ERBS:
"
3 Q You are under oath, co"rect?

4 A Yes.

5 Q I never gave that bow to Ryan. I gave it to him to use

6 and it's not only missing a quiver, it's missi~g two c"

7 three releases that are about $45 ap~ece and it's

8 missing about six blaze orange arrows and a couple of

9 other arrows, and the writing on the bow 1S destruction

10 of private property.

11 A You gave

12 MS. VEITH: Just a moment. I am going to

13 object.
,- .0

14 THE COURT: She can respond.

15 A You gave the bow to Ryan.

16 BY MR. ERBS:

17 Q You are telling me I gave the bow to Ryan?

18 A Yes, you did and the only reason you wanted it back --

19 MR. ERBS: Objection.

20 TEE COURT: Objection overruled. She may

21 continue the answer.

22 THE WITNESS: The only reason i think you

23 wanted it back ~s because -- T don't know what to even

24 call it -- the incident of the fall where there was

25 just some incident that started with a Face-Book

27
 1 posting that Jeff made and some argument between Audrey

2 and -- Audrey, my daughter-in-law, Ryan's mother, and

3 Jeff and, I think, after that, that's when he demanded

4 the bow back. It was kind of a retribution-type thing.

5 BY MR. ERBS:

6 Q One of those personal incidents being your

7 daughter-in-law telling me that I am responsible for my

8 son Thomas' death?

9 A I don't think that has anything -- she didn't say that,

10 but that has nothing to do with the bow. You did give

11 the bow to Ryan.

12 Q No.

13 THE COURT: Well, anyway, any more questions.

(
14 Mr. Erbs?

15 MR. ERBS: _ am misslng things from my son's

16 bow. He is deceased. I woued like the arrows back and

17 qUlvers.

18 THE WITNESS: There was no quiver on the bow.

19 They had to go buy a quiver.

20 BY MR. ERBS:

21 Q That's what they are telling you. You don't know that

22 personally.

23 A Can you prove there was a qUlver on the bow?

24 THE COURT: I have one question for you, Ms.

25 Erbs. Do you have anything that came with the bow and

28
 1 arrow set that your gra~dson had for awh:le that has

( 2 ~ot been returned to Mr. Erbs?

3 THE WITNESS: No, = do not, and the only

4 thing --

5 THE COURT: You ~ave answered ny question.

6 THE WITNESS: Okay.

7 THE COURT: I think what we need to do here

8 is set aside the difference in value here as an issue

9 for property division down the road because we have an

10 issue of fact, and unless Ms. Erbs is lying through r.er

11 teeth, which I highly doubt, I don't believe she has

12 anything left of the bow and a~~ow set to return to Mr.

13 Erbs, so there is nothing I can do to compel at this

14 point. If there some things tr.at are lost and missing,

15 that's a different issue and that would be an issue as

16 part of the property division. Do you have any -- did

17 you ever daffiageany locks at the residence?

18 THE WITNESS: I did not damage the lOCKS.

19 MR. ERBS: Yes, they were.

20 THE COURT: Have the locks been fixed, Mr.

21 Erbs?

22 MR. ERBS: The summons fe~ her to go to cou~t

23 said she was not supposed to go onte the premises

24 occupied by me. That's a court order. She violated

25 that court order. I don't have that with me.

29
 1 THE COURT: She was there .on Friday the 15th

n 2

3
of January, is that correct?

THE WITNESS: Right.

4 THE COURT: Okay. Let me see what I can find

5 here.

6 MS. VEITH: Your Honor, I think Mr. Erbs is

7 referring to the order to show cause and affidavit for

8 temporary order that was signed by Commissioner Ferg on

9 January 12 --

10 THE COURT: I see that.

11 MS. VEITH: 2010. How it was --

12 THE COURT: He was served on January 12th.

13 MS. VEITH: Right.

14 THE COURT: So, technically, she wasn't

15 supposed to be on the prem~ses.

16 MS. VEITH: Well, this ~s a residence that

17 was owned by both of them. Thece was no heacir.g

18 remov~ng her from the residence.

19 MR. ERBS: It's a temporary injunction.

20 MS. VEITH: It's not a temporary injunction.

21 The Court doesn't have'any authority to remove one from

22 the property that they co-owned without a hearing

23 unless the Court ~ssues an ex parte order and there lS

24 no basis for an ex parte order in this case removing

o 25 her from the residence.

30
 1 TEE COURT: ~ere's what it says: It says

2 both parties are prohibited from going upon the

3 property occupied as a residence. I don't know where

4 Ms. Erbs was living at the time this was served. So

5 any more questions you would like to ask her, Mr. Erbs?

6 BY MR. ERBS:

7 Q What would have happened if I would done ~he same

8 thing?

9 THE COURT: It's speculative. We are not

10 going to get into that.

11 MR. ERBS: Exactly. That's getting back ~o

12 my --

13 THE COURT: Any more questions on the

" "'
!
14 contempt issue?

15 MR. ERBS: Yes, she is saying she brought

16 back all the missing tax returns. T tried to find my

17 business information, which was with the tax returns.

18 It was misslng. I don': have it back. I needed it and

19 it cost a pretty good sum of money, like four months of

20 $1,829 a mor.th because I didn't have those. I had some

21 phone books or whatever they are, documents, with my

22 business information in ~hem. ~hat was in with the tax

23 stuff.

24 THE COURT: You need to ask her questions

25 about that, not me. I don't know anything about your

 1 tax returns.

2 THE WITNESS: I did not have any Dome books.

3 All I have were the returns. There were no Dome books

4 in that box.

5 BY MR. ERBS:

6 Q You violated the order to show cause. You went to the

7 property and now you are telling me -- am I to believe

8 this?

9 A I am under oath and I a~ telling you, I did not have

10 the Dome books. They were not in the box.

11 Q And also I gave the bow to Ryan?

12 A Yes.

13 Q My son says the bow, that is irreplaceable?

14 A Yes.

15 Q Uh-huh. Okay. Thomas was gOlng to give that bow to

16 Ryan.

17 THE COURT: Any more questions, Mr. Erbs?

18 MR. ERBS: Yes. Those forms were in there

19 because they were part of the taxes. We took the taxes

20 to your tax accountant and they're not at the house.

21 ,hey are gone, okay, and it costs me a pile of money.

22 THE COURT: She testified the Dome books were

23 not there. Do you have any more questions?

24 MR. ERBS: I am saying that they were.

25 THE COURT: Well, I know, but you are not

32
 1 testifying right now. Ms. Veith, do you have any more
(0. 2 questions for your client?

3 MS. VEITH: No, Your Hop-or.

4 THE COURT: You may step down.

5 (Witness excused.)

6 THE COURT: Do you want to testify, ~r. Eros,

7 about the Dome book or locks or p-o:?

8 MR. ERBS: T don't think it would make any

9 difference in court, Your Honor.

10 THE COURT: Well, that's your opinion, no:

11 ~ine. There are four 1ssues here on contempt. One 1S

12 the bow and arrow set and it appears that Ms. Erbs

13 returned everything she had to Mr. Erbs [rom that set.

14 He believes there's more to it that should have been

15 returned and any missing parts w:ll be an 1ssue for

16 property division down the road.

17 There is an allegation tr.at locks were

18 damaged. She denies damaging any locks, although she

19 found on January :5 they had been changed. There was

20 an order prohibit:ng either party from going on the

21 premises occupied by the other as a residence and

22 there's no evidence as to where Ms. Erbs is living on

23 the date of January 15. = suspect she had moved out by

24 that time. Regardless, she's not gone upon the

25 premises since, to my knowledge, without court

33
 1 permission, if she's gone at all, and if that's the

f 2 case, the Court can only order remedial contempt ar.d

3 the issue has been resolved.

4 Regarding the Dome books, I think that's a

5 fact issue for property division. Ms. Erbs testified

6 there were none. Mr. Erbs is claiming there were.

7 He's claiming because they weren't provided to him in a

8 timely manner, in fact, not provided at all, according

9 to Mr. Erbs, he lost about $1,800 a month or more, so

10 that would be a potential issue for property division.

11 Are there any other lssues the Court needs to decide

12 this morning?

13 MS. VEITH: Not that I am aware of, Your

14 Honor, no.

15 THE COURT: Mr. Erbs, do you have any other

16 issues that need to be brought ~p that haven't been

17 decided already?

18 MR. ERBS: No.

19 THE COURT: What should we schedule next?

20 MS. VEITH: I request we schedule a final

21 hearing.

22 TEE COURT: How ~uch time will that take?

23 ~ow much time should I set aside, probably the more

24 appropriate question.

25 MS. VEITH: Probably a day.

34
 1 THE COURT: Do you think that will be

.0 2 sufficient?

3 MR. ERBS: I have no idea what the respondent

4 is going to be asking. I have to be notified what's

5 going on so I can properly present a case in this

6 matter.

7 THE COURT: Let me get a calendar and I will

8 select the trial date and I'll make some other orders

9 after the clerk returns. My calendar has an opening

10 for all day on Friday the 17th of September.

11 MS. VEITH: That won't work for me, Your

12 Honor.

13 THE COURT: On the 20th I have most of the

o 14 day, but I have an hour set aside for another hearing

15 on another family case at 1:30.

16 MS. VEITH: I have got a trial the next day

17 in Dunn County, Judge.

18 THE COURT: Okay. The 19th of October is,

19 available.

20 MS. VEITH: I have got a final pretrial in

21 Clark County. That's in person.

22 THE COURT: Then I have time on the 28th or

23 29th of October.

24 MS. VEITH: I'll do it on October 28, Judge.

o 25 I have a trial the day before, but I will just make it

35
 1 work.

2 TEE COURT: ~s that agreeable with you, Mr.

3 Erbs, as far as being available?

4 MR. ERBS: It kind of interferes with my

5 Halloween plans, but 1 ~hink 1 can put ~hat aside, Your

6 Honor.

7 THE COURT: Okay. Trial will be starting at

B 9:00 on Thursday, October 28. I have set aside the

9 entire day.'

10 MR. ERBS: What are the issues?

11 TEE COURT: The issues will be your request

12 for maintenance. The other issue will be property

13 division. Are there any issues besides that that the

14 Court needs to address?

15 MS. VEI~H: The only issue related to

16 property division, Your Honor, that my client does have

17 some assets that you were inherited by her and she is,

18 obviously, requesting that those be awarded to her

19 pursuant to statute.

20 TEE COURT: That's fairly typical in these

21 cases. I want each side to submit a written property

22 proposal to the other side, with a copy to the Court,

23 oy September 28.

24 MR. ERBS: What is that to include?

25 THE COURT: Your proposal for how the Cour~

36
 1 should decide the case.

2 MR. ERBS: Pardop.?

3 THE COURT: Your proposal how the case should

4 be decided, what you want for maintenance, how you want

5 the property division to be done.

6 MR. ERBS: Okay.

7 THE COURT: Under Wisconsin law, if a party

8 has inherited or gifted asse~s, those are to be

9 disclosed on the property divlSiop., but they are

10 generally exempt from the property division.

11 MR. ERBS: That is the purpose of my

12 discovery, to find out if, indeed, it is inherited.

13 TEE COURT: O~e fact the Court may follow or

,r -".
14 consider is the assets brought to the marriage by each

15 party and that is fairly discretionary with the trial

16 court.

17 MR. ERBS: ~d another couple issues. I'm

18 permanently disabled. _ cannot work anymore. I have

19 no income that I can work and that's another thing.

20 THE COURT: That's your mai~tenance request,

21 right, basis for your maintenance request?

22 MR. ERBS: Part of ~he basis for the property

23 division also.

24 THE COURT: Okay.

25 MS. VEITH: Just so the Court is aware we

37
 1 can also provide Mr. Erbs with discovery requests

n 2 it's our understanding that Mr. Srbs is pursuing a

3 disability claim with the -- with the Social Security

4 Administration, so we need disclosure about that as

5 well.

6 THE COURT: Do you understand that, Mr. Erbs?

7 MR. ERBS: The disclosure?

8 THE COURT: You need -- as part of your

9 disclosure, financial disclos~re, you need to advise

10 Ms. Veith, your wife's attorney, as to the status of

11 your application for Social Security Disability

12 benefits. Do you understar.d that?

13 MR. ERBS: Year.. I am approved.

n 14 THE COURT: Are you getting them now?

15 MR. ERBS: Yeah.

16 THE COURT: How much do you get a month?

17 MR. ERBS: $1,829.

18 THE COURT: Okay.

19 MR. ERBS: That is not considered to be

20 income.

21 THE COURT: It's not taxable income, in other

22 words, right?

23 MR. ERBS: It's not lncome.

24 THE COURT: But it needs to be reported for

n 25 the purposes of your request for maintenance.

38
 1 MR. ERBS: I'm not sure if it does or not.

2 THE COURT: "t does because I am ordering it

3 to be reported. If you are getting 21 or $22,000 a

4 year and you are asking for maintenance, the amount of

5 maintenance, if it's awarded, the Court has to consider

6 other sources of :ncome, one of which is Social

7 Security payments, whether for retirement purposes or

8 disability purposes.

9 MR. ERBS: I will check on that.

10 TEE COURT: So you need to disclose that to

11 Ms. Veith.

12 MR. ERBS: As far as I understand from the

13 Social Security, that is not.

/ .~
I
14 TEE COURT: I:'s probably not taxable, but,

15 under Wisconsin law, it's a factor in determining how

16 much maintenance to award if maintenance is ac:ually

17 ordered.

18 MR. ERBS: I will be checking on that.

19 TEE COURT: Okay. Anything else that needs

20 to be put or. the agenda?

21 MS. VEITH: No. I just would ~ike to know

22 the date that Mr. Erbs --

23 THE COURT: Ten days. Mr. Erbs, you need :0

24 comply with her d:scovery request within ten days:

25 MR. ERBS: I would like a discovery request

39
 1 without any blanks in it. She has to fill it out. I

2 am not going to fill out anything with blanks ~n it.

3 Nothing.

4 THE COURT: What do you mean by blanks?

5 MR. ERBS: She has things that would cover

6 anything. She wants discovery. I am not going to pu~

7 my signature to a contract with blank spaces.

8 THE COURT: Well, then you should put down ,.n

9 the blank "not applicable" or something like that,

10 correct?

11 MR. ERBS: Yeah. The whole thing is

12 worthless. That's fine with me. I will run through

13 with a magic marker.

/
14 THE COURT: You need to disclose what you

15 have or don't have. Speak in the microphone, please.

16 MS. VEITH: I'm sorry. One of the items that

17 we have asked Mr. Erbs ~o sign are authorizations

18 including an authorization allowing me access to his

19 pension information and his ret~rement account

20 information. cf Mr. Erbs refuses to sign the

21 authorization, I can't confirm what his petition rights

22 are through the unlon, which is, obviously, relevant

23 here. It would be a defined benefit plan and I need to

24 know what his benefit is going to be.

25 THE COURT: Typically, pension plans are ar.

40
 1 asset for property divlsio~. If the pension has been

\ 2 distributed, then it's cor.sidered as income for

3 consideration in awards of maintenance, so you need to

4 disclose that or, more important~y, you are required to

5 send an authorization giving Ms. Veith the abi:ity to

6 obtain that information and I am going to order you to

7 sign any such authorizations. That's typical proced~re

8 in all the divorces I've been involved in. Any

9 questions on that, Mr. Erbs?

10 MR. ERBS: No.

11 THE COURT: Okay. .~ything else?

12 MR. ERBS: I have been waiting since

13 February 1 for the sa~e thing.

14 THE COURT: Well, you both have ten days to

15 comply, starting today. Anything else?

16 MS. VEITH: No, Your Honor.

17 THE COURT: Anything else, Mr. Erbs?

18 MR. ERBS: Where she has a blank space is I

19 am just going to put "not applicable" then?

20 TEE COURT: If you have a pension plan, you

21 need to give her authorizacion to get the pension

22 records showing the value of tr.e plan or the amount of

23 distributions, so you can't simply say "not applicable"

24 :here. Do you understand that?

~ 25 MR. ERBS: Yeah.

I

41
 1 THE COURT: Okay. Anything else?

{ \. 2 MS. VEITH: No, Your Honor.

,
3 THE COURT: Okay. That will conclude the

4 hearing.

5 (Conclusion of record at 10:2S a.m.)

10

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12

13

14

15

16

17

18

19

20

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42
 1 STATE OF WISCONSIN

r\ ,. 2 ss. CERTIFICATE
.I

3 COUNTY OF CHIPPEWA

5 I, Eric W. Olson, Official Court Reporter ln

6 and for the County of Chippewa, State of Wisconsin, do

7 hereby certify that I reported the above matter on July

8 8, 2010, and that the foregoing transcript, co~sisting

9 of 42 pages, has been carefully compared by me with my

10 stenographic notes as taken by me and by me thereafter

11 transcribed, and that it is a true and correct

12 transcript of the proceedings had in said matter to the

13 best of my knowledge. .

14 Dated this ~ day o~ , 2010.

15

16

17

18

19 Eric W. Olson, RPR

Official Court Reporter
20

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22

23

24

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43