Family Court is a Court of Equity

Family Court is a Court of Equity

by | Aug 16, 2022 | Article, Family Law

Often when trying to define what “equity” means in the legal context, people use words like “fair” or “equal” but neither of those really encompass what it means for the Court to be a “court of equity.” So, I am going to try and explain what it means without using ‘legalese’ or using the word in the definition. Even though this article will be mostly referencing family law or family court, this can apply to non-family law cases also.

Below is the Cornell Law School Legal Information Institute’s definition.

Equity: In law, the term “equity” refers to a particular set of remedies and associated procedures involved with civil law. These equitable doctrines and procedures are distinguished from “legal” ones. While legal remedies typically involve monetary damages, equitable relief typically refers to injunctions, specific performance, or vacatur. A court will typically award equitable remedies when a legal remedy is insufficient or inadequate. For example, courts will typically award equitable relief for a claim which involves a particular or unique piece of real estate, or if the plaintiff requests specific performance.[1]

This definition provides an interesting dividing line worth noting. Family Court is a court of equity and not a “court of law”, which means that there are not always hard and fast rules that the judge uses to make a ruling. In Family law there generally are not statements such as, “Well, Spouse A, because you did ‘X’ that means you get primary placement of the child.” Instead the court has a number of factors to consider when making most decisions.[2] Compare this to a court of law that says, “You were going one mile an hour over the speed limit, that’s illegal, here’s your fine.”

While there may be discretion as to whether to enforce the law, there are typically few factors that a court reviews to determine if someone actually broke the law. As a practical matter, most Family Law cases are difficult to appeal because the Family Court judge has discretion in making most decisions and two different judges might come to different decisions when looking at all the factors. On appeal, the court of appeals is only allowed to determine if the Family Court judge abused that discretion, which is rare.

Wisconsin courts have used a variety of phrases to describe the Court of Equity. “”A court of equity has inherent power to fashion a remedy to the particular facts.”[3] Other cases say that the court of equity has “wide latitude”[4] to provide both sides the relief they need. This means that a court could try to find a way to give both parties all, or a portion of, what the parties want, even if there is not a specific law that says that particular outcome is required. Courts get to “adapt,”[5] or “shap[e] [their ruling] . . . to fit the changing circumstances of every case and the complex relations of all the parties.”[6]

This type of court ruling is incredibly different from the “justice is blind” statue that we have heard about the court system. Courts of equity are not blind. Courts of equity have their eyes wide open, looking at all the circumstances they are allowed to look at. They try to mold and craft a ruling to the contours of the case.

You may be thinking, it seems that all courts should be like this. The issue is, this type of court ruling or procedure, where each case is treated as unique, becomes near impossible to predict. Different judges might look at the same facts and consider the same factors but come to different conclusions or rulings. We rely on our courts to interpret laws consistently so that there is predictability in our society. People want to know what the consequences of their actions will be. But, there are settings, like family law, where we realize that no two cases or families are similar enough that a one size fits all approach would work.

In Summary, the best way to describe the court of equity, is to say “it’s like a court of law and rules, but it is allowed to be more creative in finding a solution that is right for the specific case at hand and the court of equity can be less concerned about if that same ruling would work for the next case.”

[1] https://www.law.cornell.edu/wex/equity

[2] Wis. Stat. § 767.41(5)

[3] Town of Fond du Lac v. City of Fond du Lac, 22 Wis. 2d 525, 531-32, 126 N.W.2d 206 (1964).

[4] Beidel v. Sideline Software, Inc., 2013 WI 56.

[5] Am. Med. Servs., Inc. v. Mut. Fed. Sav. & Loan Ass’n, 52 Wis. 2d 198, 205, 188 N.W.2d 529 (1971).

[6] Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44.

Do Pedestrians Have the Right-of-Way?

Do Pedestrians Have the Right-of-Way?

by | May 4, 2022 | Article, General, Personal Injury

I recently heard someone say as they confidently stepped off a curb into the street, “In Wisconsin, cars have to stop for us. Pedestrians always have the right-of-way.” Having grown up in Michigan, where our rules of the road have their own oddities (look up a “Michigan Left” for an example), I was not sure if this stranger was correct or not. As I am an attorney and looking into and analyzing laws is part of my job, I thought I would do some investigation into this matter. So, before you confidently step out into the street, please read below to learn more about the Wisconsin Statutes for pedestrians crossing the street.

The statutes are broken into three categories based on if there are traffic lights and if there is a crosswalk.

  1. When the crosswalk is in combination with traffic lights, the rules are transparent. Pedestrians have the right-of-way when a green light or walk signal indicate that it is appropriate for a pedestrian to cross, especially if the pedestrian is already in the crosswalk. Pedestrians also have the right of way when walking on a sidewalk where an alley or driveway crosses the sidewalk. Vehicles must wait for pedestrians to cross the alley or driveway before entering or exiting. While this does not specifically disprove the stranger I overheard, it is already not looking good for their legal proclamation.
  1. If there is a crosswalk, but no traffic light, the pedestrian still has the right-of-way, but with a significant caveat; pedestrians cannot suddenly leave the curb or sidewalk and cross the street if it would be difficult for the approaching vehicle to yield. What stands out to me about this caveat, is that the pedestrian must do a mental calculation as to how quickly a vehicle can brake in order to determine who has the right-of-way. This is no longer as transparent as before, because it is impossible to tell how well a particular vehicle’s brakes are working. At this point the stranger’s proclamation about pedestrian’s always having the right of way has another serious strike against it.
  1. Lastly, to further disprove the stranger’s theory, when crossing a road in a location other than a crosswalk, pedestrians MUST yield to all vehicles. Meaning unless traveling on a crosswalk or a sidewalk, vehicles have the right-of-way.

While my story ended with everyone making it across the street safely, that is not always the case. Many drivers are becoming more and more distracted and unfortunately the expectation of paying attention falls on the pedestrian. Remember to look both ways, obey all crossing signals and cross at a crosswalk if possible.