Bahr v. Galonski
| Decision Date | 04 October 1977 |
| Docket Number | No. 76-376,76-376 |
| Parties | Gary L. BAHR, Plaintiff-Appellant, v. Melanie L. Bahr GALONSKI, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
This is an appeal by Gary L. Bahr, plaintiff-appellant, from an order denying a change of venue and modifying the visitation rights of Melanie Lou Bahr Galonski, defendant-respondent and mother of their children.
Gary L. Bahr, pro se.
Paul L. Jonjak, Sturgeon Bay, for respondent; Jonjak, Havens & Kase, Sturgeon Bay, William A. J. Drengler and Herrling, Swain, Drengler & McCanna, Appleton, on the brief.
Gary L. Bahr and Melanie Lou Bahr, now Melanie Bahr Galonski, were divorced in Oregon in 1969. Melanie was awarded custody of their children: Trenton, born in 1964, and Stephanie, born in 1969.
Later, both parents returned to Wisconsin where Gary L. Bahr commenced proceedings to have custody of the children transferred to him. On November 14, 1974, the Outagamie county court denied his petition for a change of custody, and he appealed. On appeal, this court vacated the order of the county court for failure to appoint a guardian ad litem for the minor children in the custody proceeding. Bahr v. Bahr, 72 Wis.2d 145, 240 N.W.2d 162 (1976). 1 The cause was remanded to the county court where, on August 5, 1976, Gary was awarded custody of the children. Melanie was allowed visitation rights of one weekend each month.
On October 20, 1976, Melanie filed a motion for (1) an increase in her visitation rights, and (2) other relief not the subject of this appeal. On October 28, 1976, Gary L. Bahr, acting pro se, filed a combined motion for dismissal, motion for change of venue, and affidavit of prejudice, seeking a change of venue or dismissal of Melanie's motion, in part because of the alleged prejudice of the trial judge.
A hearing was held on October 28, 1976. No guardian ad litem was appointed. Although Gary received notice, he did not appear at the hearing. He now says that he did not appear because he expected the judge to respond to his motions first, but his motions, filed the day of the hearing, stated: "No appearance being necessary or proper." At the hearing, the court heard Melanie's testimony in support of her request that visitation be increased to three weekends each month.
On November 1, 1976, the court entered its order increasing Melanie's visitation rights to two weekends per month and five consecutive weeks of her choice each summer. In addition, the court found ". . . that all of Gary Lee Bahr's requests, motions, and petitions regarding this hearing are without merit", thereby effectively denying the motion for change of venue. Gary appeals from this order.
Shortly after entry of the order, Gary testified at a hearing before the Wisconsin Judicial Commission and made certain accusations concerning the conduct of the trial judge.
On February 10, 1977, the trial court found Gary to be in contempt of court for noncompliance with the visitation order. He was assessed a fine of $250.00.
On June 24, 1977, Gary was again found to be in contempt for noncompliance with the November 1, 1976, order, and was fined $100. Gary allegedly continued to disregard the order, and on July 22, 1977, an order to show cause was entered as to why Gary should not again be held in contempt; why he should not be required to surrender the children for summer visitation; why a hearing should not be set to review the question of custody; and why custody should not be transferred to Melanie pending such a hearing.
This court granted a stay of the hearing on the order to show cause, pending disposition of this appeal. Additional facts will be set forth in the consideration of the issues which we deem to be:
1. May a family court modify visitation rights subsequent to a custody award, absent evidence of a change of circumstances and without making findings of fact?
2. Must a guardian ad litem be appointed to represent minor children affected by proceedings for a change in visitation rights?
3. Must a change of venue be granted for the convenience of the parties when an affidavit of prejudice (request for substitution of judge) is filed in a proceeding to modify visitation rights?
4. Has the presiding judge demonstrated prejudice which requires his removal or a change of venue?
MODIFICATION OF VISITATION RIGHTS.The August 5, 1976, order granted Melanie visitation rights on one weekend a month. This order was modified in September to provide that Gary pay the expenses of these visitations. The November 1, 1976, order, which is the subject of this appeal, granted Melanie visitation rights on two weekends a month, Thanksgiving and Christmas of 1976, and five weeks each summer. No guardian ad litem was appointed for the November 1, 1976, hearing and the trial court made no findings to support its order modifying the visitation rights. It is our opinion that the order accomplished a substantial modification of the rights of visitation. Also, it was a matter in which the trial judge knew that for several years the respective parents had evidenced significantly different opinions as to custody of the children and visitation rights.
Gary argues, in effect, that the trial court abused its discretion in so enlarging the visitation rights because there was no finding of a substantial change in the circumstances of the parties following the August 5, 1976, decision. He suggests we should require the same showing of change of circumstances in an order modifying visitation rights as in one changing custody.
Melanie, on the other hand, argues that no change of circumstances is required and that within a reasonable time after a decision a trial court may reconsider the evidence and revise its decision accordingly. Our attention is directed to secs. 806.07(1)(h) and (2), Stats. 2
We do not subscribe to the contention advanced by either party. Neither do we categorically equate the standard of proof required for each and every modification of visitation rights with that required for a change of custody. The rule in matters relating to change in custody has been stated to be:
" ' ". . . in the absence of a substantial change in the premises on which the original determination was made, a modification or revision is an abuse of discretion. . . ." ' " Goembel v. Goembel, 60 Wis.2d 130, 133, 208 N.W.2d 416, 418 (1973).
The authority of a trial court to establish visitation rights has long been recognized, at common law, as an integral part of its authority to award custody. Weichman v. Weichman, 50 Wis.2d 731, 184 N.W.2d 882 (1971). Such authority is now alluded to in the statutes. Sec. 247.015, Stats., provides that all proceedings relating to the custody of children shall comply with the requirements of ch. 822, The Uniform Child Custody Jurisdiction Act. Sec. 822.02(2), provides, in part:
"(2) 'Custody determination' means a court decision and court orders and instructions providing for the custody of a child, including visitation rights; . . ."
A modification of visitation rights ordinarily has less impact upon the welfare of a child than does a complete transfer of custody. For this reason, a change of circumstances which would not justify a transfer of custody could well support a change in visitation rights. In Peterson v. Peterson, 13 Wis.2d 26, 30, 108 N.W.2d 126, 128 (1961), it was stated, ". . . No hard and fast formula has yet been devised for determining what factors will ultimately assure the future welfare of a child. . . ." This is equally true in a determination of custody as well as visitation rights. In King v. King 25 Wis.2d 550, 554, 131 N.W.2d 357 (1964), it was held that custody could not be changed on a rehearing of the same facts. It seems obvious that the same rule must apply to a modification of visitation rights.
In the instant case, the decision setting visitation at one weekend a month was effective for approximately three months before it was enlarged by the November 1, 1976, order. The original decision gave full and informed consideration to the welfare of the children; it should not be modified three months later, absent some showing of change in circumstances. The moving party bears the burden of coming forward with sufficient proof of change of circumstances to permit the trial judge to make appropriate findings in support of the exercise of his discretion. Any modification of visitation rights should reflect a discernible change of circumstances.
Melanie further contends that if a showing of change in circumstances is required, there was sufficient evidence presented to justify the modification of the August fifth order. The difficulty is that although the trial court recognized that the paramount concern in the determination of visitation rights must always be the best interest and welfare of the children, it made no findings in support of its decision.
The decision of a trial court in a family court matter is ordinarily entitled to great weight; Adoption of Randolph, 68 Wis.2d 64, 227 N.W.2d 634 (1975). In this case, a contested family law case, where no findings were made and there is no reference by the trial court to the basis for its decision, we have concluded the cause must be remanded. Kraemer v. Kraemer, 67 Wis.2d 319, 227 N.W.2d 61 (1975); Cary v. Cary, 47 Wis.2d 689, 692, 177 N.W.2d 924 (1970). From an examination of the record in the present case, it appears there may possibly be sufficient evidence to support the decision of the trial court; however, there is no way we can determine the basis for its decision.
APPOINTMENT OF GUARDIAN AD LITEM.
No guardian ad litem was appointed to represent the children in the proceedings which are the subject of this appeal. Sec. 247.045, Stats., (Supreme Court Order, 50 Wis.2d vii, ix, effective July 1, 1971.) 3 requires the court to appoint a...
To continue reading
Request your trial
-
Paige K.B. by Peterson v. Molepske
...inherent in the procedures required for the adjudication of custody disputes." Weinstock, 864 S.W.2d at 384; see Bahr v. Galonski, 80 Wis.2d 72, 83, 257 N.W.2d 869 (1977)(explaining that GAL aids court in visitation action because court is not free to investigate, consult with the children,......
-
Clark v. State
...request be filed and acted upon before substantive or procedural issues of the case are raised or considered. Cf. Bahr v. Galonski, 80 Wis.2d 72, 87, 257 N.W.2d 869 (1977). To achieve this goal the statute should be interpreted to require the defendant to file his request prior to the time ......
-
Genoe v. Genoe
...for modifying custody and visitation orders (e.g. In re Custody of Bechard (1978), 40 Colo.App. 516, 577 P.2d 778; Bahr v. Galonski, (1977), 80 Wis.2d 72, 257 N.W.2d 869), but, as in the instant case, not applicable to modify support orders pursuant to its provisions (e.g., Kioukis v. Kiouk......
-
Shirley v. Shirley
...(1940); see Blackwell v. Vance Trucking Co., 139 F.Supp. 103 (D.C.S.C. 1956). A statement made by the court in Bahr v. Galonski, 80 Wis.2d 72, 83, 257 N.W.2d 869, 874 (1977), is The requirement that the children have independent legal representation does not in any way suggest that the pare......
-
WI Court of Appeals rules guardian ad litem must be appointed.
...(emphasis added by court)." Both parties had assumed that the decision to appoint a GAL is discretionary, pursuant to Bahr v. Galonski, 80 Wis.2d 72, 257 N.W.2d 869 (1977), but the court concluded Bahr was inapplicable. The court noted that Bahr applied a predecessor statute that only conce......