332 Wis.2d 803, 798 N.W.2d 319
Nos. 2009AP3198, 2009AP2044.Court of Appeals of Wisconsin, District III.
Opinion Filed: March 8, 2011.
APPEALS from orders of the circuit court for Door County: D. TODD EHLERS, Judge. Affirmed.
Before Hoover, P.J., Peterson and Brunner, JJ.
PER CURIAM.
¶ 1 Joel Portmann appeals a domestic abuse injunction and orders denying his motion for reconsideration or a new hearing and motion to vacate the injunction under WIS. STAT. §§ 806.07(1)(b) and (h) (2009-10).[1] He argues that Leslie Boden presented insufficient credible evidence to support the injunction and that the court improperly exercised its discretion when it denied his postjudgment motions. We reject these arguments and affirm the orders.
¶ 2 Boden testified about two incidents of physical abuse and threats that Portmann made. She described an incident that occurred April 22, 2009 in which Portmann grabbed her hair as she was driving a car and forced her head against the steering wheel and then between the seats. A sheriff’s deputy took photographs the next day depicting small bruises below Boden’s left eye and slightly farther back on her cheek. Another witness testified that she met with Boden the day after the incident and observed bruising under her left eye and a cheek abrasion. Boden corrected the police report that indicated she struck the steering wheel four or five times and indicated it happened only once. Boden also testified about an earlier incident of abuse that also occurred in the car as well as Portmann’s threats.
¶ 3 Portmann did not specifically deny Boden’s allegations. He testified that Boden grabbed his cell phone and, when he tried to retrieve it, the car began to swerve and he grabbed the steering wheel. Portmann testified that he did not remember exactly what happened “in between there.”
¶ 4 The court found that Boden met her burden of establishing “reasonable grounds” to believe that Portmann engaged in domestic abuse as defined in WIS. STAT. § 813.12(1)(am). The court’s finding was based in part on Portmann’s failure to dispute the allegations and his statement that he did not remember what happened at key moments.
¶ 5 Portmann’s challenge to the initial injunction is entirely based on his assessment of Boden’s credibility. He identified inconsistencies in Boden’s statement to police and her testimony at trial. He argues that it would be hard to believe that someone who was assaulted as Boden described would choose to seek out the other party shortly after the incident. He argues that his version is more believable because Boden did not explain how she kept control of a moving vehicle during the assault. However, the credibility of witnesses and the weight to be accorded to their testimony are matters for the trier of fact to determine. Wittigv. Hoffart, 2005 WI App 198, ¶ 19, 287 Wis. 2d 353, 704 N.W.2d 415. This court cannot overturn a credibility determination unless the trier of fact believed testimony that was patently or inherently incredible or in conflict with the laws of nature or conceded facts. See Chapman v.State, 69 Wis. 2d 581, 583, 230 N.W.2d 824 (1975). Boden’s testimony, which the court had the right to believe, sufficiently described incidents of violence and threats that support the issuance of an injunction.
¶ 6 Three months after the court issued the injunction, Portmann filed a motion for reconsideration and requested a new hearing, alleging that he was unprepared for the initial hearing for several reasons. He alleged that the district attorney informed him that “everything was going to be dropped against [him] and no further action would be taken.” Because he was not aware of the distinction between civil and criminal matters, he believed that the injunction would also be dropped. He also stated that he came upon a letter that appeared to indicate the hearing date had been postponed by two days. Nonetheless, he came to the hearing at the scheduled time, allegedly believing that the case would be dismissed at that time.
¶ 7 The court appropriately denied the motion. At the beginning of the injunction hearing, Portmann stated that he was ready to proceed and he never expressed any confusion about the purpose of the hearing. The court found that Portmann did a good job representing himself at the hearing, cross-examining and calling witnesses, presenting exhibits and even successfully objecting to an exhibit. Because Portmann appeared at the time the hearing was scheduled, he obviously did not believe the hearing had been postponed. If he had believed the sole purpose of the hearing was to dismiss the petition, the circuit court reasonably expected him to express his misunderstanding sooner than three months after the injunction was issued.
¶ 8 Portmann then filed a motion to vacate the injunction or in the alternative to take additional testimony and reconsider the decision based on newly discovered evidence and the unusual circumstances that caused him to be unprepared for the hearing. The court properly denied Portmann’s motion for relief from the judgment under WIS. STAT. §806.07(1)(h) because Portmann failed to establish any extraordinary or unique circumstances that outweighed the interest in finality of judgments. Portmann merely repeated his allegations of being unprepared for the initial hearing.
¶ 9 The alleged newly discovered evidence consists of affidavits from a doctor and two nurses who opined that Boden’s injuries depicted in the photographs were not consistent with blunt force trauma, and the injuries that would have been sustained from the attack Boden described would have been visible at an earlier time.[2] The court properly exercised its discretion when it denied the motion based on its finding that Portmann was not diligent in pursuing the additional information. See WIS. STAT. § 805.15(3). The medical evidence was first presented five months after the initial hearing. The court appropriately concluded that Portmann’s motion failed to establish reasonable diligence in discovering this medical evidence.
¶ 10 Portmann then filed a motion for reconsideration of the order denying his motion for relief from the judgment. In an attempt to establish his diligence, the motion states in detail Portmann’s activities following issuance of the injunction. He ordered transcripts of the hearing and began meeting with attorneys. He noted his efforts to repair his business and his family and care for his children. He indicated that early attempts to obtain medial opinions met with no success “due to the medical community’s aversion to involvement in litigation.” The circuit court appropriately found that these efforts do not establish sufficient diligence. WISCONSIN STAT. § 813.12(3)(c) requires a hearing on the injunction within seven days after the temporary restraining order is issued unless the time is extended upon the written consent of the parties or extended once for fourteen days. Presenting medical testimony five months after that hearing does not establish sufficient diligence.
By the Court. — Orders affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.