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11/22/83 DONNA SPEARMAN v. WILLIAM DUPREE

November 22, 1983

DONNA SPEARMAN, PLAINTIFF-APPELLANT,
v.
WILLIAM DUPREE, DEFENDANT-RESPONDENT



Appeal from an order of the circuit court for Rock county: Patrick Rude, Judge.

Petition to review voluntarily withdrawn.

Gartzke, P.j., Dykman, J. and Gordon Myse, Reserve Judge.

The opinion of the court was delivered by: Myse

This is an appeal from an order denying appellant's petition for an interlocutory injunction under sec. 813.025(2), Stats., which was denied because there was no underlying action to support appellant's petition for an interlocutory injunction. The trial court also stated that petitions for interlocutory injunctions were not of themselves actions. The trial court therefore denied appellant's petition. We affirm the order of the trial court.

The issue presented by this appeal is whether sec. 813.025(2)(a) and (b), Stats., authorizes an action for a temporary restraining order and an interlocutory injunction in the absence of an underlying claim.

Appellant's petition for a temporary restraining order and interlocutory injunction alleged that she lived in a "spousal relationship" as defined by sec. 46.95(1)(c), Stats., with defendant from October 1981 to October 1982. The petition also alleged that defendant had beaten appellant and had made repeated threats on her life. It stated that defendant left notes at appellant's house and on her car, and attempted to have contact with appellant "nearly every day." Appellant has, as a result, spent some time in the women's shelter in Rockford, Illinois, and has made several complaints to the police department. Appellant fears for her life, and therefore sought the temporary restraining order and interlocutory injunction at issue on this appeal.

Appellant contends that sec. 813.025(2), Stats., was intended to create an independent action for a domestic abuse injunction. She argues that no action, other than the petition for the interlocutory injunction, is necessary to support the issuance of the injunction. She concedes that the statute's term "interlocutory" is "confusing" but "not fatal" to an interpretation which deems a petition for an interlocutory injunction to be an action. The term interlocutory suggested to the trial court that "the statute provides only a measure of relief for use in connection with another action."

Section 813.025(2), Stats., authorizes an independent action, but this is not dispositive of the appeal. Section 813.025(2) provides as follows:

(2) (a) A Judge may issue a temporary restraining order requiring a person to avoid premises occupied by someone with whom the person is living or has lived in a spousal relationship, as defined in s. 46.95(1)(c), or not to contact that person or both. Such an order may only be issued if the Judge has reasonable grounds to believe that a violation of s. 940.19 has occurred or, based on the prior conduct of the parties, may occur. The order may only be issued to the person whom the Judge believes has violated or may violate s. 940.19. A petition for the order may be filed by the alleged or potential victim of the violation of s. 940.10. Violation of an order issued under this subsection is punishable under s. 940.33.

(b) Notice need not be given to the defendants prior to the issuance of a temporary restraining order under this subsection. The court may grant the temporary restraining order at any time before the hearing and determination of the application for an interlocutory injunction. The temporary restraining order shall be effective only for 5 days unless extended after notice and hearing thereon, or upon written consent of the parties or their attorneys. The temporary restraining order shall not remain in force beyond the time of the determination of the application for an interlocutory injunction. The order or injunction under this subsection may be issued only by a Judge and not by a court commissioner. An injunction under this subsection shall not be effective for more than 2 years.

Subsection (2)(a) creates a right for a person living with someone in a spousal relationship to obtain a temporary restraining order upon showing that there is a reasonable ground to believe that a violation of sec. 940.19, Stats., has occurred or may occur. The statute provides that a temporary restraining order may be requested by petition and that a violation of the order is punishable under sec. 940.33.

Subsection 813.025(2)(b), Stats., provides that the temporary restraining order may be issued ex parte and that the court may grant the temporary restraining order at any time before the determination of the application for an interlocutory injunction. The statute sets time limits for the temporary restraining order and for the "injunction."

The legislature has created a right to temporary relief outside of ch. 767, Stats. This right is extended to persons who would have no recourse under ch. 767, and grants to such persons relief which was likely unavailable under common law. Cf. State v. H. Samuels Co., 60 Wis. 2d 631, 636, 211 N.W.2d 417, 419 (1973); State ex rel. Fairchild v. Wisconsin Auto. Trades Asso., 254 Wis. 398, 402, 37 N.W.2d 98, 100 (1949) (court will not enjoin violation or threatened violation of criminal statute).

The legislature in enacting sec. 813.025(2), Stats., intended to create a means to protect against abuse of those living in a spousal relationship. Such enactment was part of a comprehensive package of legislation designed to address an increasingly difficult problem found in our society. There can be little question, if one resorts to legislative intent, that the legislature intended to create certain rights designed to address this problem and to provide relief to those who were in need of such protection. In doing so the legislature brought within the scope of this protection a group of people who were heretofore unprotected by the state of our law. In addition they ...


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