969 N.W.2d 770
Wis. Ct. App.2021Background
- Julie and Ricardo Valadez married in 2004 and have four minor children (two diagnosed with autism); divorce followed after domestic-abuse events.
- Ricardo was arrested and stipulated to a four-year domestic abuse injunction that prohibited contact; he later entered the marital home in violation of the injunction, and Julie entered the Safe at Home program.
- The criminal domestic-abuse charge was amended to disorderly conduct as part of a plea deal conditioned on restitution and completion of alcohol/ADR and domestic-abuse treatment; Ricardo received counseling from licensed professional counselor (LPC) Tyler Loomis.
- At a five-day divorce trial the circuit court found Ricardo engaged in a pattern of domestic abuse, triggering the statutory presumption against awarding him joint or sole legal custody, but held he overcame that presumption because he had "successfully completed domestic abuse treatment" via Loomis and thus awarded Ricardo sole legal custody and equal shared physical placement.
- Julie appealed, arguing the court erred because Wisconsin law requires completion of batterer-specific treatment provided by a certified program or certified provider to rebut the presumption, and that the court failed to make the victim’s and children’s safety the paramount concern in ordering shared placement under § 767.41(5)(bm).
- The Court of Appeals reversed and remanded: it held the circuit court misapplied § 767.41(2)(d)1.a by treating general LPC counseling and a plea-acceptance as equivalent to certified batterer treatment, and the court failed to apply § 767.41(5)(bm) when ordering shared placement.
Issues
| Issue | Plaintiff's Argument (Valadez) | Defendant's Argument (Valadez) | Held |
|---|---|---|---|
| Whether Ricardo rebutted the § 767.41(2)(d)1 presumption by "successfully completing treatment for batterers provided through a certified treatment program or by a certified treatment provider." | Julie: Loomis counseling and the plea deal do not satisfy the statute’s requirement for batterer-specific treatment by a certified program/provider. | Ricardo/GAL: Counseling from LPC Loomis (accepted in plea deal) was equivalent to the required treatment and sufficed to rebut the presumption. | Court of Appeals: Reversed—statute requires batterer-specific, certified program/provider; general LPC counseling and plea acceptance do not meet the statutory standard. |
| Whether the circuit court properly determined physical placement without making the victim’s and children’s safety the paramount concern under § 767.41(5)(bm) after finding a pattern of domestic abuse. | Julie: Given the pattern of abuse, the court was required to make victim and child safety the paramount concern in placement decisions; the court failed to do so. | Ricardo/GAL: (did not meaningfully defend the placement decision under § 767.41(5)(bm)). | Court of Appeals: Reversed—circuit court failed to explicitly apply § 767.41(5)(bm); remand for reconsideration consistent with safety-as-paramount rule. |
| Whether any other errors (e.g., property division) require correction on remand. | Julie: Court erred in failing to equally divide retirement accounts. | Ricardo: Court intended equal division but record shows a small discrepancy favoring Ricardo. | Court of Appeals: Noted apparent $2,600 discrepancy in retirement division and directed the circuit court to address on remand. |
Key Cases Cited
- State ex rel. Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (2004) (statutory interpretation rules; give plain language its common meaning)
- Enbridge Energy Co. v. Dane County, 387 Wis. 2d 687 (2019) (avoid surplusage; give meaning to every word of a statute)
- Schwantes v. Schwantes, 121 Wis. 2d 607 (1984) (courts may award custody only as provided by statute)
- Wolfe v. Wolfe, 234 Wis. 2d 449 (2000) (placement awards are governed by statute)
- Landwehr v. Landwehr, 291 Wis. 2d 49 (2006) (standard of review for placement decisions)
- Gould v. Gould, 116 Wis. 2d 493 (1984) (custody and placement committed to circuit court discretion)
- Keller v. Kraft, 267 Wis. 2d 444 (2003) (apply the plain language enacted by the legislature)
- Sweet v. Berge, 113 Wis. 2d 61 (1983) (resolving an appeal on one dispositive issue avoids addressing others)