813.125(6)(am)(am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:
813.125(6)(am)1.
1. A person named in a petition under
sub. (5) presents the law enforcement officer with a copy of a court order issued under
sub. (3) or
(4), or the law enforcement officer determines that such an order exists through communication with appropriate authorities.
813.125(6)(am)2.
2. The law enforcement officer has probable cause to believe that the person has violated the court order issued under
sub. (3) or
(4).
813.125(6)(c)
(c) A respondent who does not appear at a hearing at which the court orders an injunction under
sub. (4) but who has been served with a copy of the petition and notice of the time for hearing under
sub. (4) (a) 2. has constructive knowledge of the existence of the injunction and shall be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.
813.125(7)
(7) Penalty. Whoever violates a temporary restraining order or injunction issued under this section shall be fined not more than $1,000 or imprisoned not more than 90 days or both.
Effective date note
NOTE: Sub. (7) is amended eff. 1-1-14 by
2011 Wis. Act 266 to read:
Effective date text
(7) Penalty. Whoever violates a temporary restraining order or injunction issued under this section shall be fined not more than $10,000 or imprisoned not more than 90 days or both.
813.125(8)
(8) Notice of full faith and credit. An order or injunction issued under
sub. (3) or
(4) shall include a statement that the order or injunction may be accorded full faith and credit in every civil or criminal court of the United States, civil or criminal courts of any other state and Indian tribal courts to the extent that such courts may have personal jurisdiction over nontribal members.
813.125 Annotation
A person convicted of violating a harassment injunction may not collaterally attack the validity of the injunction in a criminal prosecution to enforce the injunction. State v. Bouzel,
168 Wis. 2d 642,
484 N.W.2d 362 (Ct. App. 1992).
813.125 Annotation
A hearing on issuing an injunction initially held within 7 days of the issuance of the temporary restraining order, then continued for seven months at the defendant's request, did not result in the court losing competency to proceed. In re Paternity of C.A.S. & C.D.S.
185 Wis. 2d 468,
518 N.W.2d 285 (Ct. App. 1994).
813.125 Annotation
A municipal corporation is a "person" that may bring an action for an injunction under this section. Village of Tigerton v. Minniecheske,
211 Wis. 2d 777,
565 N.W.2d 586 (Ct. App. 1997),
96-1933.
813.125 Annotation
Violating an injunction under this section is a crime and is not a lesser-included offense of harrassment under s. 947.013 (1r). A defendant may be convicted for violating this section and s. 947.013 without violating the prohibition against double jeopardy. Convictions for violating this section may be counted for purposes of determining whether the defendant may be sentenced as a repeat offender under s. 939.62. State v. Sveum,
2002 WI App 105,
254 Wis. 2d 868,
648 N.W.2d 496,
01-0230.
813.125 Annotation
Banishment from a particular place is not a per se violation of the right to travel. There is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances, and total atmosphere to determine whether the geographic restriction is narrowly drawn. Predick v. O'Connor,
2003 WI App 46,
260 Wis. 2d 323,
660 N.W.2d 1,
02-0503.
813.125 Annotation
A violation of this section may not rest on conduct that serves a legitimate purpose, which is a determination that must of necessity be left to the fact finder, taking into account all the facts and circumstances. The legitimate purpose determination is such that the fact finder must determine if any legitimate purpose was intended at the time of the conduct. Welytok v. Ziolkowski,
2008 WI App 67,
312 Wis. 2d 435,
752 N.W.2d 359,
07-0347.
813.125 Annotation
Applicable law allows electronic transmission of certain confidential case information among clerks of circuit court, county sheriff's offices, and the Department of Justice through electronic interfaces involving the Department of Administration's Office of Justice Assistance, specifically including electronic data messages regarding a harassment protection order issued issued under this section in an action that the court has ordered sealed.
OAG 2-10.
813.125 Annotation
For an activity to violate an injunction issued under this section, it must be intentional and devoid of any legitimate purpose. Deputies did not have probable to arrest the subject of an injunction when they knew that the subject had entered a town hall to attend a meeting at which he a had personal interest in an agenda item prior to the persons protected by the injunction, that the persons protected by the injunction wished to attend the meeting, and that they possessed harassment injunctions commanding the subject of the injunction to avoid any premises temporarily occupied by the persons protected. Wagner v. Washington County,
493 F. 3d 833 (2007).
813.126
813.126
New hearing. If a party seeks to have the judge conduct a hearing de novo under
s. 757.69 (8) of a determination, order, or ruling entered by a court commissioner in an action under
s. 813.12,
813.122,
813.123, or
813.125, including a denial of a request for a temporary restraining order, the motion requesting the hearing must be filed with the court within 30 days after the circuit court commissioner issued the determination, order, or ruling. The court shall hold the de novo hearing within 30 days after the motion requesting the hearing is filed with the court unless the court finds good cause for an extension.
813.126 History
History: 2009 a. 262.
813.127
813.127
Combined actions; domestic abuse, child abuse and harassment. A petitioner may combine in one action 2 or more petitions under one or more of the provisions in
ss. 813.12,
813.122 and
813.125 if the respondent is the same person in each petition. In any such action, there is only one fee applicable under
s. 814.61 (1) (a). In any such action, the hearings for different types of temporary restraining orders or injunctions may be combined.
813.127 History
History: 1985 a. 234.
813.128
813.128
Foreign protection orders. 813.128(1)
(1)
Enforcement of foreign protection orders. 813.128(1)(a)(a) A foreign protection order or modification of the foreign protection order that meets the requirements under
s. 806.247 (2) has the same effect as an order issued under
s. 813.12,
813.122,
813.123 or
813.125, except that the foreign protection order or modification shall be enforced according to its own terms.
813.128(1)(b)
(b) A law enforcement officer shall arrest and take the subject of a foreign protection order into custody if all of the following occur:
813.128(1)(b)1.
1. A person protected under a foreign protection order presents the law enforcement officer with a copy of a foreign protection order issued against the subject, or the law enforcement officer determines that a valid foreign protection order exists against the subject through communication with appropriate authorities. If a law enforcement officer examines a copy of a foreign protection order, the order, with any modification, is presumed to be valid if the order or modification appears to be valid on its face and circumstances suggest that the order and any modification are in effect.
813.128(1)(b)2.
2. The law enforcement officer has probable cause to believe that the person has violated the terms of the foreign protection order or modification of the order.
813.128(2)
(2) Penalty. A person who knowingly violates a condition of a foreign protection order or modification of a foreign protection order that is entitled to full faith and credit under
s. 806.247 shall be fined not more than $1,000 or imprisoned for not more than 9 months or both. If a foreign protection order and any modification of that order that is entitled to full faith and credit under
s. 806.247 remains current and in effect at the time that a court convicts a person for a violation of that order or modification of that order, but that order or modification has not been filed under
s. 806.247, the court shall direct the clerk of circuit court to file the order and any modification of the order.
813.128(3)
(3) Immunity. A law enforcement officer, law enforcement agency, prosecuting attorney or clerk of circuit court is immune from civil and criminal liability for his or her acts or omissions arising out of a decision related to the filing of a foreign protection order or modification or to the detention or arrest of an alleged violator of a foreign protection order or modification if the act or omission is done in a good faith effort to comply with this section and
s. 806.247.
813.128 History
History: 1995 a. 306.
813.129
813.129
Global positioning system tracking. 813.129(1)
(1) If a person knowingly violates a temporary restraining order or injunction issued under
s. 813.12 or
813.125, in addition to other penalties provided in those sections, the court may report the violation to the department of corrections immediately upon the person's conviction and may order the person to submit to global positioning system tracking under
s. 301.49.
813.129(2)
(2) Before issuing an order under
sub. (1), the court must find that the person is more likely than not to cause serious bodily harm to the person who petitioned for the restraining order or injunction, weighing the following factors:
813.129(2)(a)
(a) Whether the person has allegedly caused physical injury, intentionally abused pets or damaged property, or committed sexual assault, an act of strangulation or forcible entry to gain access to the petitioner.
813.129(2)(b)
(b) Whether the person has threatened any individual, including the petitioner, with harm.
813.129(2)(c)
(c) Whether the person has a history of improperly using or threatening to use a firearm or other dangerous weapon.
813.129(2)(d)
(d) Whether the person has expressed suicidal ideation.
813.129(2)(e)
(e) Whether the person has exhibited obsessive or controlling behavior toward the petitioner or any member of the petitioner's family, including stalking, surveillance, or isolation of the petitioner or any member of the petitioner's family.
813.129(2)(g)
(g) Whether the person has a history of abusing alcohol or a controlled substance.
813.129(3)(a)(a) The court may request the department of corrections to provide a validated risk assessment of the person in order to make the findings required in
sub. (2).
813.129(3)(b)
(b) The court may request a domestic violence prevention or treatment center in the court's county to complete a danger assessment of the person in order to make the findings required in
sub. (2).
813.129(4)
(4) If a court enters an order under
sub. (1), the court shall provide the person who petitioned for the restraining order or injunction with a referral to a domestic violence or sexual assault victim service provider.
813.129(5)
(5) If, after weighing the factors set forth under
sub. (2), the court determines that a person is more likely than not to cause serious bodily harm to the person who petitioned for the restraining order or injunction, and the court determines that another alternative, including imprisonment, is more likely to protect the person who petitioned for the restraining order or injunction, the court may not enter an order under
sub. (1).
813.129 History
History: 2011 a. 266.
813.13
813.13
Writ of ne exeat. The court or a judge may grant the writ of ne exeat to prevent any defendant from going out of the state until the defendant shall give security. It may be granted at any time before judgment.
813.13 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.13;
1993 a. 486.
813.14
813.14
Same; when granted. No writ of ne exeat shall be granted unless it appears to the court or judge by the complaint or an affidavit that grounds exist therefor; and the court or judge granting such writ shall direct to be endorsed thereon the penalty of the bond and security to be given by the defendant.
813.14 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.14.
813.15
813.15
Same; discharge of. If the defendant shall satisfy the court or judge granting such writ that there is no reason for the defendant's restraint or shall give security for the performance of the judgment in the action, the writ shall be discharged.
813.15 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.15;
1993 a. 486.
813.16
813.16
Receivers. A receiver may be appointed:
813.16(1)
(1) On the application of either party, when the applying party establishes an apparent right to or interest in property which is the subject of the action and which is in the possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially impaired.
813.16(2)
(2) By the judgment, or after judgment, to carry it into effect or to dispose of the property according to the judgment.
813.16(3)
(3) To preserve the property during the pendency of an appeal; or when an execution has been returned unsatisfied and the judgment debtor refuses to apply the judgment debtor's property in satisfaction of the judgment or in an action by a creditor under
ch. 816.
813.16(4)
(4) When a corporation has been dissolved or is insolvent or in imminent danger of insolvency, or has forfeited its corporate rights.
813.16(5)
(5) In accordance with the practice which obtained when the code of 1856 took effect except as otherwise provided in this chapter.
813.16(6)
(6) The receiver shall give to and file with the clerk of the court a bond, conditioned in the usual manner, with sureties to be approved by the judge making the appointment sufficient to cover all property likely to come into the receiver's hands.
813.16(7)
(7) If the person seeking the appointment of a receiver under
sub. (1) is a savings and loan association or savings bank supervised by the division of banking or a corporation supervised by the home loan bank board, federal office of thrift supervision, federal deposit insurance corporation, or resolution trust corporation, the court, unless the opposing party objects, shall appoint an officer of such corporation as receiver to act without compensation and to give such bond as the court requires.
813.16 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 760, 779 (1975); Stats. 1975 s. 813.16;
1991 a. 221;
1993 a. 486;
1995 a. 27;
1999 a. 9;
2003 a. 33.
813.16 Annotation
A court could appoint a receiver to accept mortgage payments after a foreclosure action was started when the plaintiff refused to accept them on the ground that it would be a waiver and the defendant claimed the right to make them on the ground that the defendant had no right to accelerate the note. American Medical Services, Inc. v. Mutual Federal Savings & Loan Assoc.
52 Wis. 2d 198,
188 N.W.2d 529 (1971).
813.16 Annotation
A receiver has a duty to a corporation subject to receivership and its creditors not to deal with receivership property to benefit itself. A consulting contract that was offered to the insolvent corporation's president was a corporate opportunity that the receiver improperly appropriated to itself when it took control of the corporation. Community National Bank v. Medical Benefit Administrators, LLC,
2001 WI App 98,
242 Wis. 2d 626,
626 N.W.2d 340,
99-3026.
813.17
813.17
Receiver; payment of employees' wages. Whenever a receiver shall be appointed to manage or close up any business, the receiver shall immediately report to the court the amount due the employees in such business; and said court shall order the receiver to pay out of the first receipts of said business, after the payment of costs, debts due the United States or this state, taxes and assessments and the current expenses of carrying on or closing said business, the wages, including pension, welfare and vacation benefits, of such employees earned during the last 3 months of employment and within one year prior to the receiver's appointment.
813.17 History
History: 1971 c. 63; Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.17;
1993 a. 486.
813.22
813.22
Uniform absence as evidence of death and absentee's property act; insurance policy provisions invalid. 813.22(1)(1) No provision concerning the effect to be given to evidence of absence or of death in any policy of life or accident insurance or in the charter or bylaws of any mutual or fraternal insurance association hereafter executed or adopted, shall be valid.
813.22(2)
(2) When any such policy, charter or bylaws hereafter executed or adopted contains a provision requiring a beneficiary to bring suit upon a claim of death within one year or other period after the death of the insured, and the fact of the absence of the insured is relied upon by the beneficiary as evidence of the death, the action may be begun, notwithstanding such provision in the policy or charter or bylaws, at any time within the statutory period of limitation for actions on contracts in writing dating from the date of the giving of written notice of such absence to the insurer, which notice shall be given within one year from the date when the beneficiary last heard of the absent insured. If such notice is not given then the statutory period runs from the time when the absent person was last heard of by the beneficiary.
813.22 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.22;
1979 c. 89.
813.23
813.23
Receiver may be appointed when. 813.23(1)(a)(a) When a person domiciled in this state and having an interest in any form of property disappears and is absent from the person's place of residence without being heard of after diligent inquiry, upon application for a finding of such disappearance and absence and of the necessity for the appointment of a receiver to the circuit court of the county of the absentee's domicile by any person who would have an interest in said property were said absentee deceased or by an insurer or surety or creditor of such absentee, after notice as provided in
s. 813.24, and upon good cause being shown, the court may find that the absentee was last heard of as of a date certain and may appoint a receiver to take charge of the absentee's estate. The absentee shall be made a party to said proceeding; and any other person who would have an interest in said property were said absentee deceased, upon direction by the court, may be made a party to said proceeding.
813.23(1)(b)
(b) When a person is a member of the armed forces of the United States without this state, or is serving as a merchant seaman outside of the limits of the United States included within the 50 states and the District of Columbia, or is outside such limits by permission, assignment or direction of any department or official of the United States government in connection with any activity pertaining to the prosecution of any war in which the United States is then engaged, and has an interest in any form of property in this state and no adequate power of attorney on his or her behalf has been recorded in the office of the register of deeds of the county of his or her domicile or of the county where such property is situated, upon application for findings establishing the foregoing and the necessity for appointment of a receiver, to the circuit court of the county of such person's domicile or of the county where such property is situated, by any person who would have an interest in said property were such person deceased, or by an insurer or surety or creditor of such person, or by any other person or on the court's own motion, after notice as provided in
s. 813.24, and upon good cause being shown, the court may, on making such findings, appoint a receiver to take charge of such person's estate. Such person should be made a party to such proceedings; and any other person who would have an interest in said property were said person deceased, upon direction by the court, may be made a party to said proceedings. Such person shall be deemed an "absentee" within the meaning of
ss. 813.23 to
813.34.
813.23(2)(a)(a) The receiver, upon giving bond to be fixed in amount and with surety to be approved by the court and upon such conditions as will insure the conservation of such property, shall under the direction of said court administer said property as an equity receivership with power:
813.23(2)(a)1.
1. To take possession of all property of the absentee wherever situated.
813.23(2)(a)5.
5. With the approval of the court in each case, to pay all debts due by the absentee.
813.23(2)(a)6.
6. To pay over the proceeds of such part or all of said property, or the income thereof as may be necessary for the maintenance and support of the absentee's dependents.
813.23(2)(b)
(b) If the personal property of the absentee is not sufficient to pay all of the absentee's debts, and to provide for the maintenance and support of the absentee's dependents, the receiver may apply to the court for an order to sell or mortgage so much of the real estate as may be necessary therefor; said sale or mortgage to be reported to, approved and confirmed by the court and said receiver to be ordered to make deed conveying or mortgaging said real property to the purchaser or lender upon the purchaser's or lender's complying with the terms of sale or mortgage.
813.23(3)
(3) Upon the filing of the application referred to in
sub. (1), the court may for cause shown appoint a temporary receiver to take charge of the property of the absentee and conserve it pending hearing upon the application. Such temporary receiver shall qualify by giving bond in an amount and with surety to be approved by the court and shall exercise only the powers named by the court. Should a permanent receiver be appointed, the temporary receiver shall turn over all property in the temporary receiver's possession, less such as may be necessary to cover the temporary receiver's expenses and compensation as allowed by the court, to the permanent receiver, shall file the temporary receiver's final account and upon its approval be discharged. Should the application for permanent receiver be denied, the temporary receiver shall restore to those from whom it may have been obtained, all property in the temporary receiver's possession, less such only as may be necessary to cover the temporary receiver's expenses and compensation as allowed by the court, shall file the temporary receiver's final account and be discharged. Where the application is denied, the expenses of the temporary receivership and the compensation of the temporary receiver may in the discretion of the court be taxed as costs of the proceeding to be paid by the applicant and shall be enforceable by the temporary receiver against the applicant.
813.23 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 760, 779 (1975); Stats. 1975 s. 813.23;
1993 a. 486.
813.24
813.24
Notice. All notices required under
ss. 813.22 to
813.34 shall be served upon all parties ordered by the court to be served as prescribed by statutes or rules, except that in addition thereto service on the absentee shall be by a class 3 notice, under
ch. 985, in the county of the absentee's domicile, the last insertion to be not less than 10 nor more than 20 days prior to the time set for any hearing. The original notice prescribed in
s. 813.23 (1) shall require each person claiming an interest in the property of the absentee to file in court within a time fixed by the court a statement of the nature and extent of such interest. In relation to a person in military service similar notice shall be given; except that where it appears to the court that such person was not domiciled in this state immediately prior to such service, publication of the notice may be made in the county where property of such person is situated.
