Abbas v. Palmersheim, No. 02-3390

• Decision Date: 03 June 2004
• Docket Number: No. 03-1267., No. 02-3390
• Citation: 685 N.W.2d 546,275 Wis.2d 311,2004 WI App 126
• Parties: IN RE the PATERNITY OF Nicholas B. PALMERSHEIM: Leanne M. ABBAS, Petitioner-Respondent, v. Bradley J. PALMERSHEIM, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

275 Wis.2d 311

2004 WI App 126

685 N.W.2d 546

IN RE the PATERNITY OF Nicholas B. PALMERSHEIM:

Leanne M. ABBAS, Petitioner-Respondent, v. Bradley J. PALMERSHEIM, Respondent-Appellant.¹

Nos. 02-3390, 03-1267.

Court of Appeals of Wisconsin.

Submitted on briefs October 14, 2003.

Decided June 3, 2004.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Dale M. Eaton and Mary M. Prohaska of Eaton & Prohaska, LLP, Wausau.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Charles J. Lee of Red Wing, Minnesota.

Before Deininger, P.J., Lundsten and Higginbotham, JJ.

¶ 1. HIGGINBOTHAM, J.

Bradley M. Palmersheim appeals a circuit court order denying his motion for modification of custody and physical placement of Palmersheim's minor son. The circuit court found Palmersheim failed to establish a significant change in circumstances from the previous custody and physical placement order and also found Palmersheim failed to rebut the presumption that the current custody and physical placement arrangement was in the child's best interest under WIS. STAT. § 767.325(1)(b) (2001-02).² Because the record does not support the circuit court's finding of no significant change in circumstances, we conclude the circuit court erred. However, because the circuit court proceeded to the second step in the analysis, that is, whether Palmersheim established that his proposed changes in custody and placement were in the child's best interest, we also conclude the circuit court's error was harmless. We further conclude that the circuit court applied the correct legal standard in determining the best interest of the child and that Palmersheim's equal protection rights were not violated. We therefore affirm the circuit court's order.

BACKGROUND

¶ 2. Palmersheim and Leanne M. Abbas are the parents of Nicholas, born October 6, 1991. A stipulated paternity judgment was entered on February 17, 1992, awarding sole legal custody to Abbas and periods of physical placement with Palmersheim "as agreed between the parties." At the time of this paternity judgment, WIS. STAT. § 767.51(3) (1991-1992) provided, in relevant part, "Unless the court orders otherwise, . . . the mother shall have sole legal custody of the child."

¶ 3. In August 2001, Palmersheim filed a motion to modify the original paternity judgment, seeking joint custody and shared physical placement. A hearing was held on this motion on June 10, 2002. Both Palmersheim and Abbas testified, as did Teri Phalin, a certified social worker who had completed a home study at the request of the guardian ad litem. Phalin testified, and her report states, the child is well adjusted, is doing well in school and is participating in both sports and an accelerated learning program. Phalin recommended joint custody, as did the guardian ad litem.

¶ 4. The circuit court, applying WIS. STAT. § 767.325(1)(b), denied Palmersheim's motion, finding that (1) Palmersheim failed to establish a substantial change in circumstances substantially affecting legal custody and physical placement since the entry of the previous order, and (2) Palmersheim failed to rebut the presumption that the current allocation of decision making under the legal custody order and the continuation of the child's primary physical placement with Abbas are in the best interest of the child.

¶ 5. On December 17, 2002, Palmersheim moved for reconsideration of the circuit court's December 4, 2002 order, claiming his constitutional right to equal protection was violated by application of the WIS. STAT. § 767.325(1)(b)2 presumptions. The circuit court denied his motion stating it is not unfair to presume to continue the status quo after eleven years have passed since the original custody and placement order and Palmersheim should not be permitted to interject a constitutional argument not presented at the motion hearing six months earlier. Palmersheim appeals.

DISCUSSION

Substantial Change in Circumstances

¶ 6. Whether to modify a custody or physical placement order is directed to the circuit court's sound discretion. Keller v. Keller, 2002 WI App 161, ¶ 6, 256 Wis. 2d 401, 647 N.W.2d 426. We affirm a circuit court's discretionary determination when the circuit court applies the correct legal standard to the facts of record and reaches a reasonable result. Id. Our task as a reviewing court is to search the record for reasons to sustain the circuit court's exercise of discretion. Id. However, when a party argues that the circuit court erroneously exercised its discretion by applying an incorrect legal standard, we independently review that issue of law. Id.

¶ 7. WISCONSIN STAT. § 767.325(1)(b)2 provides that, after two years, a circuit court may substantially modify custody or physical placement if the modification is in the child's best interest and there has been a substantial change in circumstances since the entry of the last custody and placement order. Section § 767.325(1)(b)2 establishes a rebuttable presumption that

a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child.

b. Continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.

¶ 8. Whether there is a substantial change in circumstances is a mixed question of law and fact. See Harris v. Harris, 141 Wis. 2d 569, 574, 415 N.W.2d 586 (Ct. App. 1987). The circuit court's findings of fact regarding an alleged change of circumstance since the last custody and placement order will not be disturbed unless clearly erroneous. Rosplock v. Rosplock, 217 Wis. 2d 22, 33, 577 N.W.2d 32 (Ct. App. 1998). However, whether a substantial change in circumstances has occurred is a question of law. Keller, 256 Wis. 2d 401, ¶ 7. Because the circuit court's legal determination is mixed with its factual findings, we give weight to the circuit court's decision. Rosplock, 217 Wis. 2d at 33 (citation omitted).

¶ 9. Palmersheim argues that the circuit court erred by determining there was not a substantial change in circumstances since the entry of the last order affecting legal custody or physical placement. A substantial change of circumstances requires that the facts on which the prior order was based differ from the present facts and the difference is sufficient to justify the circuit court's consideration of modification. Keller, 256 Wis. 2d 401, ¶ 7. We are not bound by a circuit court's determination of whether there was a significant change in circumstances. Id.

¶ 10. We conclude the evidence of record does not support the circuit court's finding of no substantial change in circumstances since the entry of the last order affecting legal custody or physical placement. Apparently the circuit court focused on events that occurred in the years just prior to the hearing in this matter, which, standing alone, do not show a substantial change in circumstances. However, when the entire relevant time period is considered, the facts clearly show a significant change in circumstances.

¶ 11. At the time of the last custody and placement order (the 1992 paternity judgment and order), Nicholas was four months old. Palmersheim and Abbas resided in the home of Palmersheim's parents in Wisconsin Rapids, Wisconsin. Palmersheim was a student at the University of Wisconsin-Stevens Point and Abbas was unemployed, receiving government assistance in the form of financial aid, food stamps and Medical Assistance. Palmersheim was able to be with his son every day and be a full-time parent.

¶ 12. Approximately six to eight months after the custody and placement order was issued, Abbas and Palmersheim broke up and Abbas moved to an apartment in Plover, Wisconsin, with Nicholas. Because of the custody and placement order, Abbas had sole legal custody and primary physical placement with periods of physical placement to Palmersheim as agreed between the parties. Palmersheim had irregular contact with Nicholas during the next several years. Beginning around 1994, Palmersheim had physical placement of Nicholas approximately every other weekend with perhaps one additional night during the week. Palmersheim also had extended periods of visitation during the summer months.

¶ 13. Today, Palmersheim and Abbas reside in different communities approximately forty-five minutes apart, have successful careers and are in committed relationships with other persons. Nicholas is now twelve years old, well adjusted and successful in school. Palmersheim, at the time of the motion hearing in this case, had physical placement of Nicholas every other weekend from Friday until Monday mornings and overnight every Thursday. The parties alternated placement on holidays.

¶ 14. The facts upon which the prior order was based are substantially different from the present facts and this difference is sufficient to justify modification of the previous order. This is particularly true with respect to the amount of time Palmersheim has with Nicholas. At the time of the original custody and placement order, Nicholas lived with both parents. Palmersheim saw Nicholas every day. At the time of the hearing in this case Palmersheim saw Nicholas only every other weekend and every Thursday night. This change is substantial and material. We conclude the circuit court erred by finding Palmersheim had not established a significant change in circumstances.

¶ 15. However, we also conclude the circuit court's error is harmless. Despite its conclusion of no significant change in circumstances, the circuit court proceeded to analyze the evidence under WIS. STAT. § 767.325(1)(b)2 to determine whether Palmersheim's proposed changes in custody and placement were in Nicholas's best interest. On appeal, Palmersheim asserts the circuit court used an erroneous legal standard when determining the best interest of the child. Palmersheim raises no...