*1 rе Nicholas B. Palmersheim: Paternity In Petitioner-Respondent,
Leanne M. Abbas,
v. Bradley Respondent-Appellant.† J. Palmersheim, Appeals
Court of 02-3390, Nos. 03-1267. Submitted on October briefs 2003. Decided June WI App
(Also 546.) reported 685 N.W.2d granted † Petition to review 9-16-04.
On behalf of the the cause respondent-appellant, M. and Mary was submitted on the briefs oí Dale Eaton Prohaska, LLP, M. Prohaska of Eaton & Wausau. of the cause petitioner-respondent, On behalf was submitted on the brief Charles J. Lee Red Minnesota. Wing, EJ., and Higginbotham,
Before Lundsten Deininger, JJ. HIGGINBOTHAM, Palmer- Bradley J. M.
sheim a circuit court order his motion appeals denying for custody physical placement modification of Palmersheim's minor son. The circuit court found Palmersheim failed to establish a significant change physical circumstances from the previous placement order and also found Palmersheim failed to the current rebut physical placement arrangement inwas the child's best 767.325(l)(b) (2001-02).1 interest under Wis. support the Because the record does not circuit court's finding significant change circumstances, of no we However, circuit conclude the court erred. because the proceeded step analy- circuit court to the second in the is, sis, that whether Palmersheim established that his proposed changes were in the interest, child's best also conclude the circuit we court's error was harmless. further conclude that We applied legal circuit court the correct standard in deter- mining the best interest of the child and that equal protection rights Palmersheim's were not vio- *7 lated. therefore affirm the We circuit court's order.
BACKGROUND ¶ 2. Palmersheim and Leanne M. are Abbas parents stipulated Nicholas, 6, of A born October 1991. judgment paternity February 17, 1992, was entered on awarding legal custody periods sole to Abbas and physical placement agreed with Palmersheim "as be parties." paternity judg tween the At the time of this 767.51(3) (1991-1992) provided, ment, Wis. Stat. part, relevant otherwise,. "Unless the court orders . . legal custody the mother shall have sole of the child." August ¶ In 2001, Palmersheim filed a motion modify original paternity judgment, seeking joint to physical placement. hearing and shared A was held on this motion on June 2002. Both Palmer- testified, sheim and Abbas Teri Phalin, as did a certified 1All references to the Wisconsin Statutes will be to the 2001-02 version unless otherwise noted. completed study had a home at the
social worker who request guardian testified, Phalin of the ad litem. adjusted, report doing states, her the child is well well participating sports in school and is both and an learning program. accelerated Phalin recommended joint custody, guardian as did the ad litem. applying court, 4. The circuit 767.325(l)(b), finding motion, denied Palmersheim's (1) Palmersheim failed to establish a substantial
change substantially affecting legal in circumstances entry physical placement since the (2) previous order, and Palmersheim failed to rebut the presumption that the current allocation of decision making legal custody under the order and the continu- physical placement primary ation the child's child. Abbas are the best interest of the 17, 2002, Palmersheim moved 5. On December circuit court's December for reconsideration right equal claiming order, his constitutional to protection by application was violated of the Wis. 767.325(l)(b)2 presumptions. de- The circuit court stating presume to his motion it is not unfair nied years passed quo after eleven have continue the status original custody placement order and since interject permitted not Palmersheim should be argument presented at the motion constitutional appeals. hearing months earlier. Palmersheim six
DISCUSSION *8 Change in Circumstances Substantial modify physical a or 6. Whether to placement to the circuit court's sound order is directed App 161, 6, 256 Keller, v. 2002 WI discretion. Keller 319 401, 2d affirm a N.W.2d We circuit court's discretionary ap determination when the circuit court plies legal the correct standard to the facts of record a and reaches reasonable result. Id. Our task as a reviewing court is to search the record for reasons to sustain the circuit court's exercise discretion. Id. party argues However, a when that the circuit court erroneously by applying exercised its discretion an legal independently standard, incorrect we review that issue of law. Id. 767.325(l)(b)2 provides ¶ 7. Wisconsin years, may substantially
that, after two a circuit court modify custody physical placement if the modifica- tion is in the child's best interest and there has a been change entry substantial in circumstances since the the last order. Section 767.325(l)(b)2 establishes rebuttable Continuing a. the current allocation of decision
making legal custody under a order is in the hest interest of the child. Continuing
b. physical placement child's parent with whom the child resides for the greater period of time is the best interest of the child. change
¶ 8. Whether there a substantial question circumstances is a mixed of law and fact. See Harris, Harris v. Wis. 2d 415 N.W.2d586 (Ct. 1987). App. findings The circuit court's of fact regarding alleged change an of circumstance since the last order will not be disturbеd clearly Rosplock Rosplock, unless erroneous. v. 217 Wis. *9 1998). (Ct. App. However, 22, 33, 2d 577 N.W.2d change in circumstances has oc a substantial whether question ¶ 2d Keller, a of law. 256 Wis. 7. curred is legal determination is mixed circuit court's Because the findings, give weight circuit factual we to the with its (citation Rosplock, 2d at 33 decision. 217 Wis. court's omitted). argues ¶ that the circuit court 9. Palmersheim by determining a there was not substantial erred change entry since the of the last
in circumstances affecting legal custody physical placement. A or order change requires of circumstances substantial prior differ from the on which the order was based facts present justify and the difference is sufficient facts Keller, of modification. the circuit court's consideration ¶ a circuit 2d are not bound 256 Wis. We signifi- there' was court's determination whether change Id. in circumstances. cant record does not conclude the evidence of 10. We finding support of no substantial the circuit court's entry change of the last since the circumstances physical placement. affecting legal order Apparently the circuit court focused on events just hearing years prior to the this occurred in the standing a substan- matter, which, alone, do show change However, when the entire tial in circumstances. clearly period considered, facts time relevant change significant in circumstances. show a place- of the last 11. At the time (the order), judgment paternity ment order and Abbas was four months old. Palmersheim Nicholas parents in Wis- in the home of Palmersheim's resided Rapids, a student Palmersheim was consin Wisconsin. University at the of Wisconsin-Stevens Point and Abbas unemployed, receiving government was assistance in *10 stamps the form of aid, financial food and Medical Assistance. Palmersheim was able to be with his son every day parent. and be a full-time Approximately eight
¶ 12. six to months after the custody placement and order issued, was Abbas and up apart- Palmersheim broke and Abbas moved an in Plover, ment Wisconsin, with Nicholas. Because of placement legal and order, Abbas had sole primary physical placement periods physical placement agreed Palmersheim as between parties. irregular Palmersheim had contact with during years. Beginning Nicholas the next several physical placement around 1994, Palmersheim had approximately every Nicholas haps per- other weekend with night during one additional the week. Palmer- periods sheim during also had extended of visitation summer months. Today,
¶ 13. Palmersheim and Abbas reside approximately forty-five different communities min- commit,- apart, utes have successful careers and are in relationships persons. ted with other Nicholas is now years adjusted old, twelve well and successful in school. hearing Palmersheim, at the time of the motion in this physical placement every case, had of Nicholas other Friday Monday mornings weekend from night every Thursday. until and over- parties placement
The alternated holidays. on upon prior 14. The facts which the order was substantially present
based are different from the facts justify and this difference is sufficient to modification of previous particularly order. This is true with re- spect to the amount of time Palmersheim has with original custody Nicholas. At the time of the parents. order, Nicholas lived with both every day. At the time Palmersheim saw Nicholas only hearing Palmersheim saw Nicholas in this case every Thursday night. every This other weekend change and material. We conclude is substantial by finding Palmersheim had not erred circuit court change significant in circumstances. established circuit court's However, also conclude the we signifi- Despite conclusion of no harmless. its error is pro- change circuit court circumstances, cant analyze evidence under Wis. ceeded to 767.325(l)(b)2 Palmersheim's to determine whether changes proposed were in appeal, Palmersheim as- interest. On Nicholas's best legal an erroneous standard the сircuit court used serts determining Palm- of the child. the best interest when objections *11 fac- circuit court's no to the ersheim raises applied findings.2 court the conclude the circuit tual We legal affirm. correct standard and we Child Best Interest circuit court determining now determine whether the 16. We legal
applied in the correct standard 2 court tangentially that the circuit argues Palmersheim awarding equal him by not erroneously exercised its discretion 767.24(4) requires § the court to claiming placement, Stat. The heart of time with his son. physical placement maximize his proper applied court on whether the circuit this case centers determining in Nicholas's best in what was legal standard physical to the pays scant attention interest. Palmersheim case; thus, inquiry focuses on our placement aspect of of the law to application erred in its the circuit court whether event, generally court any In the circuit facts of this case. 767.24(5) determining in § the factors in Wis. Stat. addressеd in placement was custody physical and change whether circuit court's disturb the interest. We will not Nicholas's best them. clearly support does not the record findings of fact unless proposed changes custody place whether the ment were in Nicholas's best interest. Palmersheim argues by applying the circuit court erred the status quo presumption provided by as Wis. Stat. 767.325(l)(b)2 § joint legal custody rather than the 767.24(2)(am).3 presumption required by § as Wis. Stat. 767.325(5m),4 Palmersheim asserts Wis. which requires the circuit court to consider whether proposed custody modification of is in the child's best interest "in a manner consistent" with obligates presume joint legal 767.24, the court to custody is in the child's best interest. Section 767.24 is governing legal statute initial determinations of physical placement. In essence, Palmer argues, quo presumption sheim the status does not apply proceedings. in modification He claims that the joint legal custody presumption is the "new"rebuttable presumption applicable inсluding custody cases, all proceedings.5 disagree. modification We 767.24(2)(am) reads, "The court shall Wisconsin presume joint legal in the best interest of the child." 767.325(5m) provides, "In all actions to Wisconsin Stat.
modify legal custody physical placement orders, the court 767.24(5) shall consider the factors under s. and shall make its determination in a manner consistent with s. 767.24."
5We deal provision here with the governing modification years. motions after logical two The extension of Palmersheim's argument is that trumps also *12 767.325(l)(a). Wis. Stat. That plainly subsection intends to stability foster for by children setting very high bar for custody changes years within original two of the order. The moving party must, exceptions, some "by show substantial evidence that the modification necessary is because the current custodial physically conditions are or emotionally harmful the best interest of the child ...." Id. quo This status presump-
324 statutory of us is one before The question 17. ¶ See Truttschel decide de novo. which we interpretation, (Ct. Martin, 208 Wis. 315 v. 560 N.W.2d 361, 364-65, 2d inter 1997). statutory in objeсtive primary Our App. See of the legislature. the intent to discern is pretation City Milwaukee, 208 Wis. 18, 25, Anderson v. 2d (1997). intent, we legislative To ascertain N.W.2d 563 Id. A statute is language. plain the statute's first look to understood being it is capable when ambiguous well- reasonably senses more different two Setagord, State v. 2d 211 Wis. informed persons. (1997). N.W.2d 506 406, 565 the statu- to construe us requires This case 18. The entire related statutes. of two construction
tory to be are and related sections of a statute section dowe or interpretation; in its construction considered Kerkvliet, Kerkvliet v. of context. out not read statutes 1992). (Ct. In App. 939, 480 N.W.2d 2d 166 Wis. or word phrase meaning any single determining of the light look at it statute, necessary it is in a Id. Statutes relating and related sections. statute whole together are to be construed matter subject to the same Id. We are as statutes so to interpret harmonized. act; a construc- of the whole the purpose to effectuate act is object manifest defeat the will tion which Id. at 940. disfаvored. neither Wis. alone, Standing Stat. 767.325(l)(b) am- 767.24(2)(am) nor Wis. ambiguous are statutes However, these
biguous. conflict between an inherent There is their interaction. and, here one at issue stronger under than tion'is much with Wis. "inconsistent" more even approach, Palmersheim's § 767.24. *13 applied custody physical these statutes when to and placement petitions modification or motions. Which presumption applies particular under circumstance is tricky especially business, in the case where neither party rebutting presumption. in successful either 767.325(5m) §
¶ 20. Before Wis. Stat.
cre
was
§
applied only
ated, Wis. Stat.
767.24
initial
to
determi
legal custody
physical placement
nations of
and
and
§
only
applied
custody
placement
767.325
to
modifi
proceedings.
cation
Kerkvliet,
See
¶ 21. Palmersheim "in a manner consis- tent with s. 767.24" means the 767.24(2)(am) legal custody as stated in Wis. applied proceedings. be must in all modification argues legislature's Abbas repeal decision not to quo presumption
the status 767.325(l)(b)2 legislature intend to did not shows joint legal presume was require courts *14 proceedings. modification in best interest in the child's change by legislature is not so this intended the What clear. by legislature, dispute that the
¶ is no 22. There 767.24(2)(am), § to create enacting intended joint legal Stat. custody presumption in favor of a rebuttable custody proceedings. not applicable What initial in all presump- legislature this intended the clear is whether custody apply determinations. modification in to tion legislature that the to conclude Moreover, were we custody joint legal apply presumption of the intended custody that actions, it is clear modification to legislature objective. to achieve its
failed specifically legislature failed to Because the presumption, quo construe repeal we must the status ambiguities. We as to resolve in a manner so statutes same relate to the statutes mind that where in bear together they subject and harmo read be matter, should To possible. 2d at 939. Kerkvliet, 166 Wis. nized if together must read them statutes, we the two harmonize City gives way effect. force and each full in a Kilgore, 168, 184, 532 N.W.2d 2d 193 Wis. v. Milwaukee (1995). inter the most reasonable conclude that 24. We 767.24(2)(am) § is that pretation of Wis. custody legal child's is in the presumption that custody legal only applies deter in initial interest best Were determinations.6 not in modification minations, 767.24(2)(am) presumption to conclude we laws promulgating the task of delegated legislature is The logical manner in a rational must do so and, process, in the favoring joint legal custody applied a to Wis. 767.325(1)(b) motion for modification physical placement, a would, such conclusion in es 767.325(l)(b) sence, eliminate the favor ing quo. interpret the status We will statute in a way judicial that results nullification of a statute. Phillips See v. Comm'n, Wisconsin Pers. 167 Wis. 2d (Ct. 1992). App. 205, 217, 482 N.W.2d121 Furthermore, interpretation abrogate legislative this preference would the clear continuity placement.
for legislature parties wishing The raised the bar for 767.325(l)(b) upset quo by enacting the status be changes physical placement cause can be change hard on children and supported is not desirable unless good legislature reason. We conclude the preference did not intend to eliminate for continu *15 ity custody placement in in as codified 767.325(l)(b) 767.24(2)(am) § by § enacting and Wis. 767.325(5m). § Stat.
¶ 25. In addition, the modification statute is in- presumption favoring legal consistent awith cus- tody continuing quo regardless since it favors the status joint legal custody. of whether the initial order awarded quo presumption Under Palmersheim's the view, status only apply joint legal custody would when is the status quo. legislature Moreover, even if the intended to elimi- presumption maintaining quo nate the of the status as to legislature neglected so avoid absurd results. The this task by creating a new presumption explicitly without eliminating or repealing the one. old Palmersheim strains to reconcile these conflicting presumptions by suggesting presumption that the joint legal custody rebuts presumption the maintaining the quo. any cannot status We find legislative reference in the history to suggest legislature intended to maintain two statutory presumptions, joint legal custody with the presump- rebutting tion quo the status presumption.
328 clearly legislature failed actions, modification specifically repealing by signal Wis. its intentions 767.325(l)(b). § Stat. legisla presumed that the Furthermore, it is existing knowledge of statutes when acts with
ture enacting legislation. T.F., n.5, 2d 69 H.F. v. 168 Wis. (1992). presume legislature must 483 N.W.2d803 We two a conflict between these did not intend to create Thus, it reasonable for us Id. at 69-70 n.5. is statutes. legislature enacted Wis. Stat. that when the assume 767.325(5m) requiring § court, all the circuit make deter actions, to its modification with mination "in a manner consistent" Wis. Stat. specific legislature more 767.24, the was aware of the quo required presumption Wis. status Stat. 767.325(l)(b). 767.325(5m) Finally, is ¶ 27. because Wis. ambigu topic, general at best, it to this and, as relates 767.325(l)(b)2 specific and clear ous, and Wis. applied respect presumption to to the be proceedings, specific modificаtion general language. language trumps Brown See County 174, Pub. 2d v. State Defender, 1992). (Ct. App. If a number sufficient N.W.2d quo legislators agreement status had reached existing apply an should not when legislature custody, surely then is for sole order obscure than chosen a means less have would *16 767.325(5m) reason The most to achieve that result. specifi interpretation legislature's failure to of the able repeal quo presumption cally in contained the status 767.325(l)(b)2 legislature for the intended that the is changes sweeping quo presumption to survive its status of the law. interpretation
¶ 28. The dissent's of the statutes provide is unworkable because it fails to direction to deciding very cases, circuit courts in close cases in presumption important. which a is most The dissent's suggestion precisely is unworkable because it directs conflicting presumptions applied that neously. be simulta- suggests
The dissent in close cases the strength circuit court's final task tois "assess the of the competing legislative direсtives on the it, record before ultimately, to determine which should receive the greater weight in the at case hand." Dissent at guidance But this is no at all. a How does circuit court strength legislative competing "assess direc- adopting in tives" a close case? The result approach predictable: judges gen- is who, dissent's in likely give presumption eral, favor sole will greater weight. Judges personal preference with no will guidance presumption be left adrift no as to which given "greater weight." Certainly legisla- should be ture did intend this.
Equal Protection argues
¶ 29. Palmersheim next that if the status 767.325(1)(b) quo presumption of Wis. cannot be joint custody presumption rebutted in Stat. § 767.24(2)(am), application quo then of the status 767.325(1)(b) presumption deprives him of his protection right equal constitutional under the law. argues right He that because the to raise one's child is right, compelling a fundamental there must be a state maintaining interest that the status quo in a child's best interest proceedings modification where the initial prior determinatiоns were made to the 1999 legislative changes. Palmersheim claims that he and *17 subject similarly parents to the who were other situated legal prior presumption to the 1999 of sole changes being deprived legislative are benefit joint legal custody presumption inis the child's proceedings operation in modification interest best 767.325(l)(b)2. presump- points that this of He out parents seeking after fair those modification tion is for parents legislation enacted who seek the 1999 was but modify custody placement where their last to prior to 1999 orders occurred joint custody enjoy never a of will physical placement. maximized challenge a ¶ 30. review a constitutional We Crosse, Inc., La de Lauderdale statute novo. Bethke v. App ¶ 103, 2d 612 N.W.2d 107, 15, 2000 WI give deter no deference to the circuit court's 332. We Transp. Milwaukee mination in this matter. v. Griffin App ¶ Servs., 433, 630 125, 4, WI 246 Wis. 2d Inc., 2001 enjoys presumption a consti A statute 536. N.W.2d tutionality party challenging must a a statute unconstitutionality beyond a reasonable еstablish its City (1980). 370, 2d 356, Brookfield, Sambs v. 97 Wis. doubt. 293 N.W.2d504 challenge seeking party the constitu A 31. grounds
tionality
equal protection
must
on
of a statute
similarly
treats
situated
demonstrate that
statute
Comp.
differently.
persons
Patients
Aicher v. Wisconsin
56, 237 Wis. 2d
613 N.W.2d
Fund, 2000 WI
scrutiny analysis
apply
where
We
a strict
right
impinges-upon
a
or creates
a fundamental
statute
disadvantages
suspect class. Id.
classification
applying
¶ 32. We conclude that
Wis.
*18
767.325(l)(b)2
implicates
to the facts of this case
a
right.
recognize
parents
fundamental
We
that
have a
right
custody
fundamental
to the care and
of their
Frazier,
children. See Barstad v.
118 Wis. 2d
(1984).
556-57,
¶ First, 33. because we have concluded that the legislature presumption failed to create a legal custody applies custody placement and modifi- proceedings, parties seeking cation all modification of custody placement regardless orders, of the date the last order presumption entered, was are the same; treated quo
that the status is in the child's best applied. interest will be legislative Second, decision to leave in
place custody place- of continued inherently ment reveals its belief that it is harmful to change change a child's situation absent some in cir- quo longer cumstances that makes the status no in the parents child's best Third, interest. such as Palmer- differently sheim will in all be instances treated post-1999 legislation parents. quo than presumption applies The status parents for
even where the court custody makes an initial determination legislation after the 1999 reform went into effect. 767.24(2) provides certain circum- Wisconsin may stances under which a circuit court order sole seeking parent. parent Thus, a modifica- ato similarly pre-1999 affected as a order will he tion legislation parent the burden demon- who carries strating or child's best interest to that it is in his her continuity modify custody placement. essence, In is beneficial for circumstances compelling interest, state children, constitutes which originally acquired custody due the mother even where legal presumption. We conclude the to the sole legal applied standard the correct circuit court applying 767.325(1)(b) to the facts of this Stat. case.
CONCLUSION agree with Palmersheim that 35. While we *19 change circumstances, in we there was substantial applied circuit the correct conclude that court § 767.325(1)(b)2, a of law under Wis. Stat. standard custody maintaining presumption the current that physical placement in child's best inter- schedule is protection equal Palmersheim's est. We also conclude by operation rights not violated have been 767.325(1)(b)2. denying § affirm the order therefore We custody request for modification of Palmersheim's physical placemеnt.
By affirmed. the Court —Order (concurring). agree I LUNDSTEN, J. join opinion. I lead the conclusions that much of the change in this in circumstances there was a substantial protection equal no violation. there is case and that quo language Regarding of the status the construction 767.325(1)(b)2,1 join § the conclu found Wis. Stat. applies quo to that the status sion that custody requests modification unaffected 767.325(5m). § separately, creation of I however, write because I differ in I reach that how conclusion. Unlike opinion, the lead unambiguous. I conclude that are statutes ¶ 37. The asserted conflict between the different custody presumptions prior arises cases where a gives parent sole and, later, order to one parent requests joint other custody. modification of the order to
Here, the mother had has sole since father, Palmersheim, 1992 and the seeks modification joint custody. argues joint to Palmersheim 767.24(2)(am) custody presumption § in Wis. trumps quo presumption the status in Wis. 767.325(l)(b)2 767.325(5m) because states that modifications to orders "shall" be made in a 767.24, "manner consistent with" custody presumption. 767.24 contains the My legislative history ¶ 38. review the leads me nothing history to conclude that there is in that reliably many legislators demonstrates whether the changes encompassed who voted for the in 1999 Wis. changes 9 Act intended that one of those be that the quo presumption applicable pro- status to modification ceedings joint custody presump- take a back seat to the any engage In event, tion. we need an effort subjective legislators discern the intent of because the unambiguous. statutes at are issue joint custody presumption applies 39. The *20 custody Typically, initial decisions. at the time of an custody change decision, initial for the children is stage, legislature At unavoidable. this initial the has provided presume legal that "shall courts custody Wis, is in the of best interest the child." Stat. 767.24(2)(am). § Obviously, legislature the has deter- parting ways a that, mined in the aftermath parents, involvement of сhildren benefit from active parents. ambiguity here. No both recognizes plainly, legislature ¶ 40. as Just continuity. Thus, under Wis. that children benefit from 767.325(l)(b), of a the modification Stat. "in the interest of the child" order must be best Continuing presumption that... is a "there rebuttable making legal under a of decision the current allocation of the child." No order is the best interest ambiguity here either. argues, opinion lead and the Palmersheim 767.325(5m)
agrees,
introduces ambi-
that Wis. 767.325(5m)
perti-
guity. disagree.
reads, in
I
Section
modify legal custody.
part:
. .
"In all
nent
actions
in a manner
court.
. .
make its determination
shall
nothing
however,
is,
There
consistent with s. 767.24."
joint custody presumption
inconsistent between
applied
at
of an initial
decision and
the time
years
quo
applied
presumption
later,
more
two or
status
ap-
quo presumption
which the status
the time after
plies.
points
opinion
out,
lead
when courts
42. As the
specific language
general
statutes,
controls
construe
County
language.
Defender,
Brown
v. State Pub.
See
1992)
(Ct. App.
2d
¶ 44. It is hard to not how the dissent's proposal by рarties would be received and trial court judges. Putting myself place judge in the of a trial court attempting apply proposal, might the dissent's I ask following: let get straight. me
Now this The mother here has sole because of 1999 order. The father a wants joint custody. switch to There is a lot credible evidence against for and maintaining both quo. status Do I right? have this the court I appeals telling Is me must both apply presumption of continued sole and the presumption I should switch to custody? guess I am supposed I to decide pre- which gets sumption weight, more but how should I do that? proposal nullifying The dissent's has the effect both presumptions in cases in a which is most, is, needed close cases where it not clear custody arrangement whether current should be maintained or modified. Finally,
¶ 45.
I note that the dissent weaves into
topic
emphasized
parties
its
discussion
opinion:
maximization-of-placement-time
the lead
767.24(4)(a)2.
directive found in Wis. The allo-
greater
cation of
time often has a
effect on
decision-making authority
parents
than
children
by custody allocation orders. It seems to me
conferred
*22
regard
argument in
is
this
weaker
that Palmersheim's
explains,
the
in contrast
to
because,
still
as
dissent
physical
custody,
equal
presumption
no
there is
of
placement.
App 65,
2004 WI
Lofthus,
See
v.
Lofthus
¶
393,
14,
515,
270
2d
678 N.W.2d
review dis
Wis.
missed,
50,
113,
2d
the lead that trial court erred in change had not there been substantial in circum- stances since the initial deter- paternity opinion minations this action. The lead perhaps error harmless, concludes this was which ostensibly was, it because the trial court on went existing consider whether to the modifications order agree, would be the child's best I interest. do not opinion's however, with the lead conclusion thаt applied proper trial court standard of law deter- mining that it would be in the child's best interest modify existing place- allocation ment.
¶ 48. Rather, I conclude the trial erred in court *23 giving legislatively no consideration whatsoever to the legal custody mandated "that is in the child," best interest the 767.24(2)(am) (2001-02),1 legislature's the to direc placement tion "to set a schedule that maximizes the may spend parent," of time child amount the with each 767.24(4)(a)2.1 appealed would reverse the order and remand to trial to allow the court consider whether, applicable correctly interpreted, the statutes, under joint custody present physi should be ordered the Accordingly, respect cal schedule modified. I fully dissent. question
¶ 49. There can be no that the trial court apply "continuity presumptions," felt constrained the § 767.325(1)(b)2, only presump- Wis. those determining sought tions, in whether the modifications by Palmersheim in the were best interest of the child.
1All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. that, had it suggest сomments strongly
The trial court's constrained, it have might not itself to be so believed existing custody place- modifications to the ordered ment arrangements: to follow the statute.... It's
The Court has do; got I have to do. I've I want to it's what what telling The statute is me there's follow statute. continuing the current presumption that rebuttable decisionmaking in the best interests allocation of is in this child, and I can't find sufficient evidence presumption. record to overcome that Continuing of it. the child's go part Let's to the next the child parent with whom physical time in the best greater period for the resides change, child. get And in order to interests of change in circum- you've got to have that substantial stances. recommenda- respect guardian I ad litem's
... tion, I the recommendation of social respect statute, and I'm not sure got I've to follow the worker.2 not satisfied from evidence the statute —I'm change in circumstances which there's a substantial that I think are me to make the modifications allow fact, considering In as I was probably appropriate .... visitation, the, the but this, thought expanding about I I statute, I do that unless am I read this can't as change in a substantial satisfied that there's been essence, in an it's ... almost easier circumstances. So *24 come before the finding parties the first initial when findings that types make of Court to have the Court the Court believes are allow for visitation that would 2 legal custody joint guardian ad litem recommended The Although Palmersheim. physical placement with and increased litem has brief, guardian ad separate file a he did not arguments on Palmersheim's supports that he informed us custody and joint The also recommended appeal. social worker Palmersheim. increased with
339 I think that appropriate. given way But statute the is, think it I. . . don't I can do it.... wanting
I Mr. understand Palmersheim's to have joint custody wanting periods to extended have of physical but I I placement, don't think can do it under think statute. I that Mr. Palmersheim is well- respect good motivated. I that. I think a he's father. ¶ 50. The trial court's comments it indicate that may analysis change have its whether intertwined a of analysis circumstances had been demonstrated with its light continuity best interest of the child in of the 767.325(l)(b)2. presumptions under Wis. Stat. If that finding change case, is the the court's error no may not circumstances opinion have been as harmless as the lead opinion though Lead concludes. at 15. Even quoted portion ruling trial in the court refers of its changed clearly a lack of engaged circumstances, it was also continuity in a determination of whether the presumptions been had overcome. Had the trial court legislative considered the which directives favor legal custody maximization time 767.24(2)(am) parent, (4)(a)2, each Wis. counterpoints continuity presumptions, as to the Ias required might do, conclude it was the trial court well granted existing have modifications to the order. discretionary trial When court's determi nation law, rests on an erroneous view the court errоneously has exercised its v. discretion. See State (1968). Hutnik, 39 2d 754, 763, Wis. 159 N.W.2d I happened conclude that is what here. plain language
¶ 52. Under of Wis. 767.325(5m), which was enacted at the same as time3 9, § See 1999 Act 3065ck. *25 joint custody the directives favor of and maximization "[i]n placement parent, time with each all actions to modify legal physical placement orders, 767.24(5) court shall consider the factors under and shall make its determination in a manner with consistent added). (emphasis Legislative history provided s. 767.24" by supports to us legislature Palmersheim a conclusion that the preferences
intended that courts consider its joint custody placement for and maximization of time parent with each placement whenever a court makes legislative An
decisions. earlier version ultimately provided bill that became 1999 Wis. Act 9 767.325(5m) newly created that a court faced with request only a modification must consider 767.24(5). factors listed Wis. provision passage, The was amended before final how- ever, to add the direction for courts to make the deter- regarding mination "in modification a manner consistent language apparently with s. 767.24." The added was suggested drafting attorney by to the a member of the legislative explained staff, lead author's who in a memo to the drafter: appears
It suggested [the bill] modifications to changes the State Bar. . . would make the in the 767.24(5) applicable factors under s. to revisions of legal custody physical placement orders. That memo, however, is silent respect applicabil- to the ity important changes language being to the that are 767.24(4)(a). language made in s. The intended below is to address this issue. By relying only continuity presump-
¶ 53. on 767.325(1)(b)2, tions of Wis. the trial court failed possible countervailing to consider the effects of the express legislative favoring joint custody directives parent
maximization time with each ex- *26 767.24(2)(am) (4)(a)2. § pressed in Wis. Stat. and Thus, my legislature's court, view, the trial violated the 767.325C5m) § mandate in Wis. Stat. that a court "shall make its determination in a manner consistent with s. сonsidering modify existing 767.24" when whether to placement § and orders under 767.325. justifies opinion ¶ 54. The lead the trial court's failure to consider the effect of Wis. Stat. 767.24(2)(am) (4)(a)2 § by concluding that certain § provisions apply only in 767.24 to initial placement determinations but never to modification proceedings § opinion under Wis. Stat. 767.325. Lead at opines applying presumption ¶ 24.4 It that under 767.24(2)(am) § joint custody in favor of to modification proceedings "would, essence, eliminate 767.325(l)(b) § presumption favoring quo." the status opinion's Id. But much the same can be said of the lead holding: eliminate[s]" it "in essence, 767.24(2)(am), § legislature's of direc 767.24(4)(a)2 § tive in to maximize time with 767.325(5m) parent, § each and the mandate of are courts to make modification determinations "in a manner consistent with s. 767.24." my opinion
¶ In view, the lead has not suffi ciently explained why legis we must conclude that the 767.325(1)(b)2 § lature meant what it said in Wis. Stat. 4Although opinion lead finds Wis. Stat. 767.24(2)(am), § and apparently 767.24(4)(a)2, inapplicable to 767.24(5) proceedings, modification it finds "plainly to be applicable" opinion to modifications. Lead at 20. I find no 767.325(5m) language in either 767.24 or Wis. Stat. pick allows us to among provisions choose from § 767.24 those with which modification decisions must be may ignored. consistent and those which be recently but not what it more has said in Wis. 767.325(5m). §§ 767.24(2)(am), 767.24(4)(a)2, I am persuaded that, in order to harmonize these stat necessarily ignore any legislature's utes, we must "interpreting Rather, directives. when arewe two stat alleged duty attempt utes that are conflict, to it is our way give harmonize them a that will effect to the legislature's enacting City intent in both statutes." DWD, 11, Madison v. 2003 WI 262 Wis. 2d 664 N.W.2d584. advantage opinion's
¶ 56. One of the lead inter- pretation, simplicity. By permitting course, is its simply ignore express legislative courts to directives joint custody in favor of and maximization of parent expressed time with each in Wis. *27 767.24(2)(am) (4)(a)2 § acting and when on modifica- requests, opinion tion the lead no doubt makes life a parties little easier for trial courts and much easier for seeking quo sole-custody to maintain the status in and substantially placement arrangements. one-sided Un- interpretation der Iwhat believe to be the correct application party moving of the statutes, however, a for legisla- modifications would be able to from benefit 767.24(2)(am) § preferences expressed tive in (4)(a)2, shouldering significant while still burdens in seeking quo. contrary Moreover, to disturb the status to opinion's suggestion, opinion ¶ the lead Lead 28, at guidance trial courts would not be without in how to approach the modification determination. existing provides
¶ First, 57. if an order for placement arguably and a schedule that maxi- parent, "taking mizes time with each into geographic separation account and accommodations for 767.24(4)(a)2, § households," different Wis. Stat. party requesting changes upstream would indeed swim
343
legislative
a
current of
direc-
against
strong
multiple
if
Moreover,
the status
even
favoring
quo.
tives
for sole
order
a
existing
provides
signifi-
schedule,
one-sided
but
order was
сantly
entered at a time when the directives of the present
767.24(2)(am)
(4)(a)2
effect,
§
were in
the moving
obstacles to overcome. He or
still has
party
significant
show,
matter,
a threshold
that
the circum-
she must
as
original
stances that
the court
to enter the
prompted
order,
legislative
one-sided
directives disfa-
despite
it,5
See Wis. Stat.
voring
changed substantially.
have
767.325(l)(b)l.b.
It is
in the
circumstance
that
only
present
in
dueling
something approaching parity
arguably
alleged
and directives occurs.6 The
con-
presumptions
767.24(2)
See,
court,
(b)2,
permits
e.g., Wis. which
legal custody
agreement
parties,
absent
to order sole
"only"
one of them
if certain circumstances exist.
767.24(2)(am)
that,
recognize
6 I
while
creates
767.24(4)(a)2
joint custody, §
an
express presumption
favor
presumption
equal placement
in favor of
time
creates no similar
Keller,
parent.
App
for each
We concluded Keller v.
2002 WI
767.24(4)(a)
161,
12,
401,
426,
256 Wis. 2d
647 N.W.2d
(We
equal placement.
does not create a
favor of
recently
interpretation
have
reaffirmed
concluded
enjoys
parent
right
equal
further that a
no constitutional
placement following
estrangement
divorce or
from the other
Arnold,
62,
705,
parent.
App
See Arnold v.
2004 WI
270 Wis. 2d
(Wis.
2004)
denied,
Apr.
review
679 N.W.2d
WI
*28
(No. 03-1547),
Lofthus,
65,
v.
2004
AppWI
Lofthus
(Wis.
dismissed,
705,
296,
Wis. 2d
679 N.W.2d
review
this that findings. made its See evidence and court has taken trial "presumption § (providing im that a 903.01 Wis. Stat. against party poses it directed the burden whom is on the presumed proving fact is that the nonexistence of existence"). example, probable For than its more 767.24(2)(am) § presumption in favor of under Wis. Stat. showing by joint custody might legal overcome be performing parental capable "[o]neparty duties is .not parties "[t]he responsibilities," not be or will and making required cooperate in future decision able to legal custody." Section under an award 767.24(2)(b)2. "the amount of time the The directive that may parent" spend maximized each should be child separation relating "geographic to the invites evidence for different households" and accommodations sharing placement equalized would more whether adversely "physical,mental or emotional affect the child's 767.24(4)(a)2 (4)(b). continuity § The health." See presumptions 767.325(l)(b)2, § on the other
of Wis. Stat. showing seemingly that the child hand, call for evidence proposed change, adversely affected would be accruing perhaps from a to the child that the benefits maintaining outweigh any change benefits of would arrangements. existing custody hearing court evidence, the trial 60. After any pre findings regarding make whether should first 767.325(1)(b)2 sumptions under Wis. 767.24(2)(am) overcome, and had been whether 767.24(4)(a)2 shown to directive of was If concludes that or inadvisable. the court be infeasible presumptions favoring quo are overcome the status competing not, are and directive and the If neither are versa, the outcome will be clear. or vice 767.325(1)(b)2 leaving pre- however, overcome, sumptions pointing maintaining quo toward the status *30 767.24(2)(am) and the the or 767.24(4)(a)2 pointing directive modifications, toward strength the trial court's final task is to assess the competing legislative it, directives on the record before ultimately, and to which determine should receive the greater weight in the case at hand. weighing competing goals policy
¶ 61. The of discretionary considerations is of the essence decision making. e.g., See, Connor, Connor v. 49, 27, 2001 WI ("In 243 2d 279, its N.W.2d of exercise attempt appro discretion, the court 'must to strike the priate countervailing policy balance between the con pull consistently siderations that either at end of spectrum.'"); App the . . . White, State v. 2000 WI (concluding ¶ 4, 237 Wis. 2d 615 N.W.2d667 case-by-case trial courts a "must exercise discretion on give [compet basis in order to balance the effect to ing] goals"). happen That did not in this case because the trial felt court constrained Wis. 767.325(1)(b)2 quo. to maintain the status It thus gave weight statutory express no to whatsoever the preferences favoring joint custody and the maximiza parent, tion of time each which the legislature has determined to be the best of interests contrary. children absent indications to Because contrary omission, this I which conclude is § 767.325(5m), express mandate of I would reverse proceedings for remand further on mo Palmersheim's tion. In I sum, conclude that the statutes under legislative preferences
review indicate for certain out- may may given comes which be in conflict proceeding. simply ighoring modification pertinent Instead of legislative pronouncements, as lead holding opinion's does, I a trial court must be believe parties permitted have to consider whether rebut- against presumptions weighing or directives ted interpre- respective positions. I believe that this their opinion's analysis lead tation avoids the flaw the statutory ignoring express gives directives, life and it provisions legislative underlying the intent both Finally, §§ because the Wis. 767.24 767.325. arguably opinion otherwise, lead has concluded and the conflicting pronouncements legislative present an issue importance, respectfully I recommend that of statewide supreme accept review should Palmersheim court request it.