In re Rogers, 2006AP1766.
| Decision Date | 21 February 2007 |
| Docket Number | No. 2006AP1766.,2006AP1766. |
| Citation | 731 N.W.2d 347 |
| Parties | In the MATTER of the GRANDPARENTAL VISITATION OF DAVID ROGERS and Emily Rogers. Eugene F. Rogers and Doris J. Rogers, Petitioners-Appellants, v. Mary Jo Rogers, n/k/a Mary Jo Ryan, and Eugene M. Rogers, Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the petitioners-appellants, the cause was submitted on the briefs of Terry W. Rose, of Rose & Rose, of Kenosha.
On behalf of the respondent, Mary Jo Rogers, n/k/a Mary Jo Ryan, the cause was submitted on the brief of Wendy S. Paul, of Racine. A guardian ad litem brief was filed by Mark Lukoff, of Law Office of Mark Lukoff, S.C., of Racine.
Before BROWN, NETTESHEIM and ANDERSON, JJ.
In this appeal, we review the circuit court's interpretation and application of WIS. STAT. § 767.245 (2003-04), the grandparent visitation statute.1 The grandparents, Eugene F. and Doris J. Rogers, appeal from an order denying their petition seeking the entry of a formal order directing visitation with their grandchildren. We hold that the grandparents did not rebut the presumption that the decision of the mother, a fit parent with primary placement, regarding the existing visitation sufficiently served the best interests of the children. Therefore, we agree with the circuit court that state interference with the mother's decision was not justified. However, we reject the mother's claim that the grandparents' appeal is frivolous.
¶ 2 The material facts are undisputed. Eugene M. Rogers and Mary Jo Rogers n/k/a/ Mary Jo Ryan, divorced in 2005. The parties have two minor children, David and Emily. The marital settlement agreement, incorporated by reference into the judgment of divorce, recited that both parents were fit and proper persons to have legal custody of the children. The judgment ordered joint custody with primary placement to Mary Jo. Eugene had secondary placement, essentially consisting of every other weekend, a week in summer and an every-other-year holiday rotation.2
¶ 3 The grandparents are David's and Emily's paternal grandparents. In 2003, David and Emily lived with the grandparents for nine months, at the grandparents' expense, while the family relocated from Missouri to Wisconsin. When David and Emily resumed living with their parents, the grandparents saw the children several times a month. After the divorce, Mary Jo permitted the grandparents to continue to see the children at their school events and to take them out for meals, but overnight visitation fell off. Mary Jo offered weekday time when the children were off school, which the grandparents always accepted. The grandparents did not consider nonovernight visits "placement," however.
¶ 4 The grandparents moved for a visitation order pursuant to WIS. STAT. § 767.245. At the hearing on the motion, the grandfather testified that they wanted regularly scheduled visitation with the children for one weekend a month and a week in the summer. They also wanted the weekend visits carved from Mary Jo's placement because the children lived with her during the week resulting in an estimated 85%/15% split between Mary Jo and the dad. The grandparents never asked their son if they could have the children with them during his time. Mary Jo agreed that the relationship between David and Emily and their grandparents was positive and in the children's best interest to maintain.
¶ 5 John Engel, the family court worker appointed to evaluate the grandparents' position on scheduled visitation, interviewed the parents, the grandparents and the children. Engel opined that a grandparent visitation order was unnecessary because Mary Jo was not impeding the grandparents' relationship with the children. The court-appointed guardian ad litem agreed because, while the grandparents preferred more or longer visits, Mary Jo had not denied them involvement in the children's lives, and the court should not interfere with Mary Jo's parental decision making.
¶ 6 The circuit court took the matter under advisement. In its written decision, the court observed that the disparate placement schedule between Eugene and Mary Jo was a result of the children living with Mary Jo during the school year. The court found that the grandparents had a parent-like relationship with the children stemming from having fully cared for them in 2003 and that the divorce was the mechanism triggering the WIS. STAT. ch. 767 visitation statutes. The court also found that the contact Mary Jo had already fostered between the children and their grandparents was sufficient to maintain the existing good relationship. The court concluded that since Mary Jo had not denied visitation with the grandparents there was no basis or need for a visitation order. The grandparents appeal.
¶ 7 Whether to grant or deny grandparent visitation is within the circuit court's discretion. Roger D.H. v. Virginia O., 2002 WI App 35, ¶ 9, 250 Wis.2d 747, 641 N.W.2d 440. We will affirm if the circuit court examined the relevant facts, applied the proper legal standard and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. Id. When a party alleges an erroneous exercise of discretion because the circuit court applied an incorrect legal standard, we review that issue de novo and affirm if we can independently conclude that the facts of record applied to the proper legal standards support the court's decision. Id. In addition, this case in part raises a question of the construction of WIS. STAT. § 767.245, a question of law that we review de novo. Marquardt v. Hegemann-Glascock, 190 Wis.2d 447, 451, 526 N.W.2d 834 (Ct.App.1994).
¶ 8 The grandparents sought a visitation order pursuant to WIS. STAT. § 767.245. They concede that Mary Jo does not oppose and, in fact, allows ongoing visitation. But they object to its haphazardness, as they describe it, and want the arrangement formalized by court order. They also want the visitation time allotted to them taken from Mary Jo's placement schedule because the children are with her more than they are with their father, the grandparents' son. The circuit court denied the grandparents' petition, ruling that Mary Jo's decision regarding the existing visitation arrangement sufficiently served the children's best interests and was entitled to constitutional deference. The grandparents ask that we reverse the order denying their petition and remand with instructions to order visitation.
¶ 9 WISCONSIN STAT. § 767.245 provides in relevant part:
767.245 Visitation rights of certain persons. (1) Except as provided in subs. (1m) and (2m), upon petition by a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child, the court may grant reasonable visitation rights to that person if the parents have notice of the hearing and if the court determines that visitation is in the best interest of the child.
¶ 10 The circuit court ruled:
Absent a denial of placement by one or both of the parents there is no basis upon which this Court should create a time for placement with the grandparents notwithstanding [that] the elements and facts of this case place them in a position to request such a placement.
¶ 11 The grandparents correctly state that WIS. STAT. § 767.245 requires that three conditions must be satisfied before a circuit court may grant visitation: (1) the grandparents must have a parent-like relationship with the child, (2) the parents must have notice of the hearing, and (3) the court must determine that grandparent visitation is in the child's best interest. The grandparents read the circuit court's ruling to say that a court cannot order grandparental placement unless visitation is denied, and they protest that the statute does not impose that requirement. They suggest that once the three statutory conditions are met, the petition must be granted, and the court erred by fashioning a new requirement.
¶ 12 The grandparents overread the circuit court's holding and misconstrue the controlling law. First, the statute's stated conditions do not guarantee that a visitation order will issue where the statutory elements are satisfied. To the contrary, the decision clearly remains within the court's discretion even where the statutory elements are met. Id. () (emphasis added). Second, as we will explain later, the grandparents did not satisfy the "best interest of the child" element of the statute. Finally, the court's pronouncement is not as broad as the grandparents suggest. The court did not say, as a matter of law, that a parent's allowance of any degree of grandparent visitation bars a visitation order. To the contrary, the court spoke to "the elements and facts of this case," saying there was "no basis upon which this Court should," not could, order placement.
¶ 13 In a related argument, the grandparents contend that the circuit court wrongly held that parental denial of placement was the "triggering event" for the entry of a visitation order. In support, the grandparents rely on Holtzman v. Knott, 193 Wis.2d 649, 533 N.W.2d 419 (1995), where the supreme court examined the relevant statutes governing nonparent visitation and concluded:
This recitation of the history of the three visitation statutes illustrates the continuing legislative concern with identifying the triggering events that warrant state interference in an otherwise protected parent-child relationship. As we have seen, the triggering event most often manifest in the history of the ch. 767 visitation statute (and the case law interpreting it) has been the dissolution of a marriage, that is, an annulment, divorce or separation.
Holtzman, 193 Wis.2d at 674, 533 N.W.2d 419. We disagree with the grandparents that the court held...
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