Andrew N. v. Wendy D.
| Decision Date | 28 September 1995 |
| Docket Number | No. 94-3268,94-3268 |
| Citation | 541 N.W.2d 838,197 Wis.2d 117 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In re the Paternity of STEPHANIE R.N.: ANDREW J.N., Jr., Petitioner-Respondent, v. WENDY L.D., Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
Before GARTZKE, P.J., and SUNDBY and VERGERONT, JJ.
This appeal is a continuation of a dispute between Andrew J.N. and Wendy L.D. over the legal custody and physical placement 1 of their daughter, Stephenie R. N., born July 4, 1987. The factual and legal history of this dispute is set forth in In re Paternity of Stephanie R. N., 174 Wis.2d 745, 498 N.W.2d 235 (1993), affg In re Paternity of S.R.N., 167 Wis.2d 315, 481 N.W.2d 672 (Ct.App.1992). In Stephanie R. N., the supreme court reversed an order of the Rock County Circuit Court that modified the initial custody and placement order under which Wendy had sole custody and primary placement of Stephenie. Id. at 774, 498 N.W.2d at 245.
Wendy now appeals a subsequent judgment entered by the Dane County Circuit Court on a subsequent motion filed by Andrew. This judgment modifies the initial order by granting sole custody and primary placement to Andrew. She appeals on three grounds: (1) the trial court was without authority to enter an ex parte temporary order granting Andrew sole custody and primary placement because it was inconsistent with the supreme court's mandate in Stephanie R. N.; (2) the trial court was without authority to grant sole custody and primary placement to Andrew because of the supreme court mandate; and (3) the best interest standard of § 767.325(l)(b), STATS., is not applicable and Andrew did not present substantial evidence that it would be emotionally or physically harmful to Stephenie's best interest for sole custody and primary placement to be with Wendy, as required by § 767.325(l)(a). 2
We conclude that because remittitur from the supreme court had not yet occurred, the trial court did not have jurisdiction to enter the ex parte temporary order; and even after remittitur, the court had no authority to enter such an order because it was inconsistent with the supreme court mandate. However, we also conclude that because Wendy did not seek enforcement of the supreme court mandate, but instead entered into a stipulation permitting Andrew to retain sole custody and primary placement pending the trial court's decision on his motion, she is not entitled to enforcement of the supreme court mandate. Finally, we conclude that under the circumstances of this case, the proper standard to apply in deciding Andrew's motion is whether it is in Stephenie's best interest for sole custody and primary placement to be with Andrew, with certain modifications to the standard set forth in § 767.325(l)(b), STATS., which we explain below. Because the trial court's decision to grant custody and placement to Andrew is a reasonable one when this legal standard is applied to the facts of record, we affirm.
In Stephanie R. N., the supreme court affirmed this court's decision that the Rock County trial court erred when it ordered sole custody and primary placement transferred from Wendy to Andrew. Andrew had not presented substantial evidence, the supreme court ruled, that removal from Wendy's care was necessary because the custodial conditions with Wendy were harmful to the physical or emotional best interest of the child, as required by § 767.325(1)(a), STATS., when modification is sought within two years of the initial order. 3 Stephanie R. N., 174 Wis.2d at 770-71, 498 N.W.2d at 243. The supreme court reversed the trial court order and directed that sole custody and primary placement be returned to Wendy in accord with the initial order entered on December 6, 1988. Id. at 774, 498 N.W. at 245, 498 N.W.2d 235.
The supreme court issued its decision on April 20, 1993. On May 21, 1993, Andrew filed a motion in Dane County Circuit Court, 4 requesting modification of the December 6, 1988 order by granting him sole custody and primary placement. On the same day, at Andrew's request, the trial court issued an ex parte order that Wendy show cause why a temporary order should not be entered awarding sole custody and primary placement of Stephenie to Andrew based on a substantial change of circumstances and the best interest of Stephenie. The court set a July 27, 1993 hearing date on the motion and ordered that, pending the hearing, Andrew was to exercise the sole custody and primary placement rights that he had been exercising and Wendy was to retain the limited supervised placement rights she had been exercising. 5
Based on a stipulation between the parties, which will be discussed in more detail later in the opinion, Andrew retained sole custody and primary placement rights pending the trial on his motion, which was held in August 1994. After the trial, the trial court granted sole custody and primary placement to Andrew, with substantial periods of physical placement to Wendy as outlined in the family court counselor's report. 6 The court determined that the appropriate standard was whether the modification was in the best interest of the child under § 767.325(l)(b), STATS., because more than two years had passed since the initial order was issued on December 6, 1988. But it also held that the evidence supported a modification of the initial order under the more stringent standard of § 767.325(l)(a).
We agree with Wendy that the trial court was without jurisdiction and authority to enter the ex parte temporary order because it was inconsistent with the supreme court mandate. However, because she did not seek to compel compliance with the supreme court mandate, but instead entered a stipulation confirming the temporary order, that issue is now moot. 7 For the same reasons--her failure to seek enforcement of the supreme court mandate and her entering the stipulation--we conclude that Wendy is not entitled to enforcement of the supreme court mandate.
The supreme court's mandate directed that sole custody and primary placement be returned to Wendy in accord with the initial December 6, 1988 order. Andrew filed a motion for reconsideration in the supreme court on or about May 7, 1993. That motion was denied on June 8, 1993. Remittitur to the Dane County Circuit Court was ordered on June 8, 1993. Meanwhile, Andrew had filed his motion in Dane County Circuit Court for modification of the December 6, 1988 order and the trial court had entered the ex parte temporary order.
A trial court has no jurisdiction to act on a matter that is on appeal until receiving remittitur of the record from the reviewing court. State v. Neutz, 73 Wis.2d 520, 522, 243 N.W.2d 506, 507 (1976). 8 Once the reviewing court, in this case the supreme court, has issued its mandate, it is the duty of the trial court to enter judgment in accordance with the mandate. State ex rel. Reynolds v. Breidenbach, 205 Wis. 483, 485, 237 N.W. 81, 82 (1931).
Since remittitur did not occur until June 8, 1993, the trial court was without jurisdiction to enter the ex parte temporary order before that date. After that date, it had a duty to act only in accordance with the supreme court mandate. Andrew was not foreclosed by the supreme court's mandate -from moving to modify the December 6, 1988 order on grounds that arose after the erroneous modification of that order. But the ex parte temporary order he obtained pending a resolution of his motion was, in effect, a stay of the supreme court mandate. 9
The trial court explained that it felt compelled to issue the ex parte order because, since Stephenie had then been in her father's home for five years, the court wanted to determine what was best for her, "rather than to allow somebody just to come and make an arbitrary change." We do not suggest that the trial court lacked authority, after remittitur, to enter an order concerning the timing and manner of the transition of custody and primary placement from Andrew to Wendy. But such an order must be consistent with the supreme court mandate that custody and primary placement be returned to Wendy in accordance with the December 6, 1988 order. The ex parte temporary order was plainly inconsistent with the. mandate. It did not implement the mandate on a reasonable basis. It implicitly contemplated that custody and primary placement might never be returned to Wendy, depending on the disposition of Andrew's motion. We conclude the trial court did not have the authority to enter such an order.
Wendy's recourse to compel the trial court to comply with the supreme court mandate was to file a petition with the appellate court for a writ of mandamus. M. & M. Realty Co. v. Industrial Comm'n, 267 Wis. 52, 61, 64 N.W.2d 413, 417 (1954). However, she did not pursue this remedy. Instead, she entered a stipulation essentially confirming the temporary order.
Wendy appears to argue that she intended to stipulate that Stephenie continue to live with Andrew only on the condition that, at some time to be determined, she have primary placement and sole custody. However, the trial court made this finding with respect to the stipulation:
At the July 27, 1993, hearing, both parties were present, and the petitioner, by Attorney John D. Hanson, Respondent, by Attorney Timothy Henney, the guardian ad litem, Jack Koshalek, and the Family Court Counseling Service for Dane County, by Arleen Wolek, entered into a stipulation not to make the custody change at that time in the best interests of the child, and to allow a stepping process for increased placement with the mother pending a final hearing before this court as to whether the legal custody and primary placement should be changed. While the respondent claims now that she did not agree, there is no doubt...
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