IN RE THE MARRIAGE OF: MARY A. SCOTT, PETITIONER-APPELLANT, V. DANIEL B. SCOTT, RESPONDENT-RESPONDENT.
Appeal No. 2024AP2520
STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV
July 9, 2026
RYAN D. NILSESTUEN, Judge.
Cir. Ct. No. 2012FA2438. APPEAL from an order of the circuit court for Dane County. Affirmed. Before Graham, P.J., Blanchard, and Taylor, JJ.
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
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BACKGROUND
¶2 Mary and Daniel were married in July 2005, and had two minor children at the time the underlying divorce action was commenced in 2012. Their older child was born in 2009 and their younger child was born in 2011. In 2013, the parties stipulated to all matters raised in the action, except to those concerning legal custody and physical placement of the children. Following a trial on these issues, the circuit court ordered joint legal custody and shared physical placement of the children. The final judgment of divorce incorporated the court‘s order on custody and placement.
¶3 Litigation between the parties, primarily concerning their children, continued postjudgment. At some point in 2017 or 2018, Mary was awarded sole legal custody and primary physical placement of the children, and the parties were operating under a 2018 temporary order that granted Daniel supervised periods of
¶4 Daniel‘s motion triggered a referral to family court services for a legal custody and physical placement study and the appointment of a GAL to represent the best interests of the children. Daniel‘s motion also triggered numerous temporary orders, which gradually increased Daniel‘s periods of placement with the children. A temporary order issued by the court eventually allocated primary physical placement to Daniel.
¶5 In August 2024, the circuit court conducted an evidentiary hearing on issues of legal custody, physical placement, and support. Mary did not appear at the hearing despite receiving prior notice. At the hearing, a family court counselor testified about her completion of the custody and placement study and her recommendation that Daniel be awarded sole legal custody and primary physical placement of the parties’ children. The GAL also recommended that the best interests of the children necessitated that sole legal custody and primary physical placement be awarded to Daniel.
¶6 The circuit court expressly considered each statutory factor relating to legal custody and physical placement in concluding that it was in the best interests of the children that Daniel be awarded sole legal custody and primary
STANDARD OF REVIEW
¶7 We review a circuit court‘s order concerning legal custody and physical placement as a mixed question of law and fact. Wiederholt v. Fischer, 169 Wis. 2d 524, 530-31, 485 N.W.2d 442 (Ct. App. 1992). We will not set aside the court‘s findings of fact unless they are clearly erroneous. Id. The court‘s ultimate determinations are independently reviewed for an erroneous exercise of discretion. Id. Under that standard, this court will uphold a circuit court‘s discretionary decisions if the circuit court “examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.” State v. Jenkins, 2007 WI 96, ¶30, 303 Wis. 2d 157, 736 N.W.2d 24 (citation omitted).
DISCUSSION
¶8 Mary appeals aspects of the circuit court‘s final order that granted sole legal custody and primary physical placement of the two minor children to Daniel. To repeat, Mary argues that reversal is required because: (1) the court commissioners and circuit court did not have “competency” to hear the modification motion or issue orders; (2) the orders of the circuit court commissioners and the circuit court were in error; (3) her attorney performed ineffectively; and (4) the GAL was biased in favor of Daniel. We address, and reject, each argument in turn.
¶9 Mary asserts that neither the circuit court commissioners nor the circuit court had competency to preside over the case or issue orders regarding Daniel‘s June 2023 modification motion due to the December 2022 retirement of the judge in the circuit court branch that had been assigned to the case. We interpret Mary to implicitly argue that the lack of notice of the judicial reassignment concerning the new judge resulted in “structurally flawed proceedings” that rendered subsequent orders void.3 We have an incomplete appellate record of all of the circuit court transactions in the lengthy history of this case. But we assume without deciding that Mary did not receive notice of the judicial reassignment concerning the new judge. Even with that assumption, Mary‘s argument still fails because Mary has forfeited the competency issue by failing to raise it in the circuit court.
¶10 Competency refers to a circuit court‘s ability to exercise subject matter jurisdiction. Kohler Co. v. Wixen, 204 Wis. 2d 327, 337, 555 N.W.2d 640 (Ct. App. 1996). The power to exercise subject matter jurisdiction is vested in Wisconsin courts by the Wisconsin Constitution. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶9, 273 Wis. 2d 76, 681 N.W.2d 190;
¶11 Mary does not allege that she raised the issue of the competency of the circuit court commissioners or the circuit court in those proceedings, nor does she include record cites in her appellate briefing indicating that the issue was raised. In our non-exhaustive review of the record, we do not see any indication that it was. Our supreme court has generally concluded that, with some exceptions including mandatory time limits, a challenge to the circuit court‘s competency is forfeited if not raised in the circuit court “subject to the inherent authority of the reviewing court to disregard the [forfeiture] and address the merits of the unpreserved argument or to engage in discretionary review.” Id., ¶27; see also Matthew S., 282 Wis. 2d 150, ¶30 (holding that a statutory time limit related to the termination of parental rights could not be forfeited even though it was not raised in the circuit court); State v. Olson, 2019 WI App 61, ¶11, 389 Wis. 2d 257, 936 N.W.2d 178 (“A party‘s failure to comply with a statutory time limit deprives a court of competency to proceed only when the time limit is mandatory.“).
II. Court Orders
¶13 Mary challenges temporary and final orders issued by circuit court commissioners and the circuit court regarding Daniel‘s modification motion. Mary alleges that these orders: were the result of hearings that lacked proper notice; exceeded the authority of court commissioners; lacked evidentiary support; and restricted Mary‘s ability to present her case, violating Wisconsin law and her constitutional rights to due process, fundamental fairness and freedom of religion, and her parental rights under the U.S. and Wisconsin constitutions. We are unpersuaded.
A. Court Commissioner Temporary Orders
¶14 Mary challenges temporary orders concerning legal custody and physical placement matters issued by circuit court commissioners on August 16, 2023, October 30, 2023, and January 4, 2024. Mary alleges that these temporary orders violated various procedural and substantive statutory requirements and impaired her rights as noted. We reject her arguments for at least the following reasons.
¶15 In regard to the temporary orders concerning legal custody and physical placement matters issued by circuit court commissioners, Mary failed to request de novo review by the circuit court, as permitted in
B. The Circuit Court‘s Final Order
¶17 Mary challenges the circuit court‘s final order of November 20, 2024, on additional grounds, including that: she did not receive proper notice; the court granted relief in excess of that which Daniel requested in his June 2023 modification motion; and the court‘s decision lacked factual support. We consider, and reject, each argument in turn.
¶18 The circuit court found that Mary did receive notice of the August 13, 2024 final hearing, which was scheduled in May 2024 and was referenced in various filings that Mary submitted to the court. Mary fails to develop an argument that this finding was clearly erroneous. Likewise, Mary does not develop an argument that the court granted relief beyond that which was requested by Daniel in his June 2023 modification motion. Rather, she makes a conclusory assertion unsupported by any reference to record cites or to Daniel‘s motion. She also argues that the court‘s final order lacked an “evidentiary foundation,” but she does not otherwise specify what particular findings of the court or legal conclusions were lacking evidentiary support. We reject these
III. Ineffective Assistance of Counsel
¶19 Mary argues that her trial counsel performed ineffectively, which she alleges prejudiced her ability to seek meaningful review of the temporary orders.6 We reject Mary‘s arguments for at least the following reason.
¶20 Generally, the appropriate remedy for an ineffective assistance of counsel claim in a civil case is a separate legal malpractice action. Village of Big Bend v. Anderson, 103 Wis. 2d 403, 406-07, 308 N.W.2d 887 (Ct. App. 1981). A litigant may also seek relief from unsatisfactory performance by counsel in the course of a civil case by moving the circuit court for relief under certain statutes, such as
¶21 Mary cites to Strickland v. Washington, 466 U.S. 668 (1984), in support of her ineffective assistance of counsel claim. But Strickland applies to criminal proceedings in which defendants have a federal and state constitutional right to effective assistance of counsel. Id. at 686.
¶22 This is a civil proceeding, and unlike the constitutional right to counsel in a criminal case, in which Strickland applies, “[t]here is no express guarantee of representation by counsel in a civil matter.” See Anderson, 103 Wis. 2d at 405 (“Unlike many criminal defendants … parties in a civil action retain the counsel of their choice.“).
IV. Bias
¶23 Mary argues that the GAL assigned to this case was biased in favor of Daniel because the GAL “consistently aligned with [Daniel‘s] position,” and omitted or misrepresented facts that were favorable to Mary in the GAL‘s reports to the circuit court. Mary purports that these actions violated the GAL‘s statutory and ethical duties to act as a neutral advocate for the best interests of the children pursuant to
¶25 Mary also mischaracterizes the role of a GAL and selectively reads
The [GAL] shall be an advocate for the best interests of a minor child as to paternity, legal custody, physical placement, and support. The [GAL] shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of the minor child or the positions of others as to the best interests of the minor child.
(Emphasis added.) This statutory language unambiguously establishes that a GAL in this context is first and foremost an advocate for the best interests of minor children. See Hollister v. Hollister, 173 Wis. 2d 413, 419, 496 N.W.2d 642 (Ct. App. 1992) (citation omitted). In fulfilling this role, the GAL is not a neutral officer of the court, as Mary suggests, but instead an advocate for the best interests of the minor children. The GAL is to be “treated as any other attorney acting as an
¶26 In making legal custody and physical placement recommendations, a GAL is directed to consider the wishes of minor children or the positions of others as to the best interests of the minor children, the enumerated “best interest” statutory factors set forth in
¶27 When a GAL submits reports to the circuit court or makes oral recommendations at a final hearing, we view those actions as if the GAL had submitted a brief or presented a final argument to the court. Hollister, 173 Wis. 2d at 420-21. It is within the court‘s discretion to adopt in whole or in part, or reject in whole or in part, the recommendations of the assigned GAL. Goberville v. Goberville, 2005 WI App 58, ¶11, 280 Wis. 2d 405, 694 N.W.2d 503. Then, based on the evidence and arguments submitted by the parties and the GAL, the court makes findings of fact and, based on those facts, exercises broad discretion to make a legal custody and physical placement determination for the minor children. Hollister, 173 Wis. 2d at 416; Goberville, 280 Wis. 2d 405, ¶6.
¶28 Here, Mary does not develop an argument that, as a result of the GAL‘s conduct, the circuit court erroneously exercised its discretion when it awarded Daniel sole legal custody and primary physical placement, and we reject her argument as undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we decline to address undeveloped arguments or arguments unsupported by legal authority).
¶29 While we make some allowances for pro se parties, “we cannot serve as both advocate and judge.” Id. at 647. To the extent that Mary makes additional arguments in her appellate briefs that we have not explicitly addressed here, we reject those arguments as undeveloped, including for lack of legal or factual support. See id. at 646-67.
VI. Motion for Frivolous Costs
¶30 Daniel moves for an order based on frivolous briefing by Mary, pursuant to
¶31 Importantly, to award costs and attorney fees, we “must conclude that the entire appeal is frivolous.” Howell, 282 Wis. 2d 130, ¶9. In deciding whether an appeal is frivolous under
CONCLUSION
¶33 Accordingly, for the reasons stated above, we affirm.
By the Court.—Order affirmed.
This opinion will not be published. See