Mary A. Scott v. Daniel B. Scott, 2024AP002520

Background

Mary and Daniel Scott divorced after litigating legal custody and physical placement of their two minor children, with the final divorce judgment incorporating an order of joint legal custody and shared placement. 1
By 2018, Mary had sole legal custody and primary physical placement, while Daniel had supervised placement and weekday phone contact. 2
Daniel moved in June 2023 to modify custody, placement, and support, prompting a custody/placement study, appointment of a GAL, and temporary orders that increasingly expanded Daniel's placement until he had primary placement. 3
After an August 2024 evidentiary hearing that Mary did not attend, the counselor and GAL recommended that Daniel receive sole legal custody and primary physical placement. 4
The circuit court awarded Daniel sole legal custody and primary physical placement, ordered Mary to pay support, and found her in contempt and overtrial for attorney-fee contribution. 5
Mary appealed, challenging competency, temporary and final orders, alleged ineffective assistance of counsel, and alleged GAL bias. 6

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the circuit court lacked competency to hear the modification motion 7	Mary claimed lack of notice of judicial reassignment made later orders void.	Daniel argued Mary forfeited the competency challenge by not raising it below.	Forfeited and rejected; no reason to disregard forfeiture. 8
Whether commissioner-issued temporary orders were reviewable on appeal 9	Mary challenged commissioner temporary orders as procedurally and substantively unlawful.	Daniel argued Mary never sought de novo circuit court review.	Rejected; failure to seek de novo review barred appellate review. 10
Whether the final custody/placement order was defective for lack of notice or evidentiary support 11	Mary claimed she lacked notice, received relief beyond Daniel's motion, and the order lacked support.	Daniel argued the findings were supported and Mary's claims were undeveloped.	Rejected as undeveloped and conclusory. 12
Whether Mary obtained relief for alleged ineffective assistance of counsel 13	Mary relied on Strickland and claimed counsel's errors prejudiced review.	Daniel argued civil cases do not use Strickland and Mary sought no proper relief below.	Rejected; civil ineffective-assistance claim failed. 14
Whether the GAL's alleged bias required reversal 15	Mary claimed the GAL favored Daniel and misrepresented facts.	Daniel argued the GAL properly advocated for the children's best interests.	Rejected; GAL is not neutral and Mary's claim was undeveloped. 16

Key Cases Cited

Wiederholt v. Fischer, 169 Wis. 2d 524 (Ct. App. 1992) (custody and placement orders reviewed as mixed questions; factual findings upheld unless clearly erroneous 17)
State v. Jenkins, 303 Wis. 2d 157 (Wis. 2007) (discretion upheld if court applied proper law and rational process 18)
Kohler Co. v. Wixen, 204 Wis. 2d 327 (Ct. App. 1996) (competency refers to a circuit court's ability to exercise subject matter jurisdiction 19)
Village of Trempealeau v. Mikrut, 273 Wis. 2d 76 (Wis. 2004) (statutory noncompliance can cause loss of competency and competency challenges are generally forfeitable 20)
Sheboygan Cnty. DSS v. Matthew S., 282 Wis. 2d 150 (Wis. 2005) (mandatory statutory time limits can affect competency 21)
Jahimiak v. Jahimiak, 410 Wis. 2d 557 (Wis. Ct. App. 2024) (de novo review of commissioner orders is needed to preserve appellate review 22)
Dane County v. C.M.B., 165 Wis. 2d 703 (Wis. 1992) (appeal lies from circuit court orders, not commissioner orders 23)
Village of Big Bend v. Anderson, 103 Wis. 2d 403 (Wis. Ct. App. 1981) (civil ineffective assistance is usually remedied by malpractice or statutory relief, not Strickland 24)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (criminal ineffective assistance standard 25)
Hollister v. Hollister, 173 Wis. 2d 413 (Wis. Ct. App. 1992) (GAL advocates for children's best interests, not as a neutral officer 26)
Goberville v. Goberville, 280 Wis. 2d 405 (Wis. Ct. App. 2005) (court may accept or reject GAL recommendations in custody cases 27)
Howell v. Denomie, 282 Wis. 2d 130 (Wis. 2005) (frivolous-appeal sanctions require the entire appeal to lack any reasonable basis 28)