Bernier v. Bernier, 2004AP625.

• Decision Date: 15 December 2005
• Docket Number: No. 2004AP625.,2004AP625.
• Parties: In re the Marriage of Michelle Elizabeth BERNIER n/k/a Michelle Elizabeth Vangelos, Petitioner-Respondent, v. Michel Carey BERNIER, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

709 N.W.2d 453

2006 WI App 2

In re the Marriage of Michelle Elizabeth BERNIER n/k/a Michelle Elizabeth Vangelos, Petitioner-Respondent, v. Michel Carey BERNIER, Respondent-Appellant.

No. 2004AP625.

Court of Appeals of Wisconsin.

Submitted on Briefs October 14, 2004.

Opinion Filed December 15, 2005.

COPYRIGHT MATERIAL OMITTED

On behalf of the respondent-appellant, the cause was submitted on the briefs of Laurie Roman of Haus, Roman and Banks, LLP, Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Daphne Webb and Margit Sandor Kelley of Stafford Rosenbaum LLP, Madison.

Before DYKMAN, DEININGER and HIGGINBOTHAM, JJ.

¶ 1 HIGGINBOTHAM, J

This appeal arises from a circuit court judgment and order dividing equally the guardian ad litem fees and awarding attorney fees in a physical placement enforcement action brought under WIS. STAT. § 767.242 (2003-04).¹ Michel Carey Bernier argues the circuit court erred by ordering him to pay fifty percent of the guardian ad litem fees. He claims that, as the prevailing party, he is entitled to recover his share of the guardian ad litem fees as part of "the cost of maintaining an action" under § 767.242(5)(b)1.b.² Bernier further asserts the circuit court erroneously exercised its discretion when it awarded him less than half the attorney fees he incurred in successfully vindicating his rights under § 767.242.

¶ 2 Because we conclude the clear intent of WIS. STAT. § 767.242(5)(b)1.b. is to make whole prevailing parties seeking judicial enforcement of their physical placement rights and to provide a financial disincentive to custodial parents who interfere with the custodial rights of the other parent, we conclude the circuit court erred by requiring Bernier to pay fifty percent of the guardian ad litem fees. We further conclude the circuit court erroneously exercised its discretion by failing to sufficiently explain the basis for the amount of attorney fees awarded to Bernier. We do conclude, however, that the circuit court properly excluded attorney fees for the seventeen hours spent negotiating a settlement to this case. We therefore affirm in part, reverse in part, and remand for a hearing on the allocation of the guardian ad litem fees, an award of guardian ad litem fees to Bernier, and a determination as to the reasonableness of the attorney fees award in light of this decision.

FACTS

¶ 3 Michelle Vangelos (f/k/a Michelle Bernier) and Bernier were divorced on August 3, 2000. The judgment of divorce incorporated a Partial Marital Settlement Agreement providing that Vangelos could remove the parties' two children from Wisconsin to reside with her in California. The Partial Marital Settlement Agreement also, among other child-related provisions, sets forth Bernier's periods of physical placement.

¶ 4 In March 2003, Vangelos informed Bernier she would not be sending their son for the Easter 2003 placement and she was placing limitations on their daughter's placement with him during the same time period. Bernier sought and obtained an Injunction and Ex Parte Order in which the circuit court found

there is substantial cause for concern that [Vangelos] will violate the terms of the Judgment of Divorce by denying and/or interfering with [Bernier's] physical placement rights relating to the 2003 Easter school vacation. . . .

The circuit court ordered placement over the 2003 Easter school vacation to occur as provided in the Partial Marital Settlement Agreement. The circuit court deferred Bernier's request for reasonable attorney fees and expenses incurred until after the hearing on his motions for Enforcement of Physical Placement Order and for Contempt.

¶ 5 In these two motions, Bernier alleged Vangelos had denied or interfered with his periods of physical placement on numerous occasions. He also alleged Vangelos had interfered with his legal custody rights by unilaterally implementing a de facto change in the children's last names from "Bernier" to "Vangelos" on their school records and on purchased airline tickets.

¶ 6 Following a hearing on Bernier's motions, the circuit court found that Vangelos unreasonably denied and interfered with Bernier's court-ordered physical placement rights and unreasonably interfered with his rights by the de facto change of the children's last names. The court ordered Vangelos to stop using the name "Vangelos" for the children and to change all records back to Bernier, correctly identifying him as the children's legal father. The court also awarded Bernier four make-up days and payment of $3,540 for expenses owed by Vangelos.

¶ 7 The circuit court further found that any relief available under WIS. STAT. § 767.242 would be ineffective in obtaining Vangelos's compliance with the court's orders and therefore issued a two-year injunction against her. The court awarded Bernier attorney fees and costs of $11,700, which was less than the actual attorney fees ($26,921.86) incurred by him in this action. The circuit court also ordered the parties to equally share the guardian ad litem's fees. Bernier appeals the circuit court's orders on the attorney fees and guardian ad litem fees.

DISCUSSION

Standard of Review

¶ 8 The first issue is whether a circuit court is required to award guardian ad litem fees to a prevailing petitioner in a WIS. STAT. § 767.242 physical placement enforcement proceeding as part of "the cost of maintaining an action under this section. . . ." Section 767.242(5)(b)1.b. This question involves the interpretation of three statutes: § 767.242(5)(b)1.b., WIS. STAT. § 814.04(2), setting forth disbursements as items of costs, and WIS. STAT. § 767.045(6), addressing compensation for guardians ad litem. Statutory interpretation is a question of law we review de novo. Van Erden v. Sobczak, 2004 WI App 40 ¶ 11, 271 Wis.2d 163, 677 N.W.2d 718, review denied, 2004 WI 114, 273 Wis.2d 655, 684 N.W.2d 136 (2004).

¶ 9 "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis.2d 633, 681 N.W.2d 110. In construing a statute we are to give deference to the policy choices made by the legislature in enacting the law. Id. To that end, if the statutory language is plain and unambiguous, we apply the statute by giving it its usual and common meaning. Id., ¶ 45, 681 N.W.2d 110. We are to interpret statutory language in the context within which it is used, "not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46, 681 N.W.2d 110. Awarding Guardian Ad Litem Fees Under WIS. STAT. § 767.242(5)(b)1.b.

¶ 10 Bernier argues the circuit court erred when it ordered him to pay one-half the guardian ad litem fees. He asserts the guardian ad litem fees are part of his cost of maintaining the enforcement action or, in the alternative, reasonable attorney fees recoverable under WIS. STAT. § 767.242(5)(b)1.b. In either case, Bernier contends § 767.242(5)(b)1.b. is a mandatory cost and fee-shifting statute and therefore the circuit court was required to award him, from Vangelos, any guardian ad litem fees it allocated to him.

¶ 11 WISCONSIN STAT. § 767.242, entitled "Enforcement of physical placement orders," was created by 1999 Wis. Act 9, § 3054de. In creating § 767.242, the legislature attempted to address the well-documented problem of parties violating physical placement orders and the legal system's seeming inability to enforce these orders. Christopher D. Walther, Wisconsin's Custody, Placement, and Paternity Reform Legislation, WIS. LAWYER, Apr. 2000, at 15, 49. Section 767.242 attempts to ameliorate these problems by establishing new physical placement enforcement mechanisms in family court. Walther, supra ¶ 11, at 49. Under § 767.242, a parent who has been awarded periods of physical placement pursuant to WIS. STAT. § 767.24 and has had one or more periods of physical placement denied or substantially interfered with by the other parent can petition the circuit court for a remedy or any combination of remedies set forth in § 767.242(5)(b).

¶ 12 WISCONSIN STAT. § 767.242(5)(b)1.b. is a fee-shifting statute. Fee-shifting statutes such as this one "contemplate that those recovering under them will be made whole." Chmill v. Friendly Ford-Mercury of Janesville, Inc., 154 Wis.2d 407, 413 n. 2, 453 N.W.2d 197 (Ct. App.1990). Bernier asserts that because § 767.242(5)(b)1.b. is a fee-shifting statute, the legislature intended to make petitioners "whole" not only by requiring the circuit court to impose the other remedies in the statute but also by awarding prevailing petitioners their cost of maintaining the action plus attorney fees which, in his view, includes guardian ad litem fees. He asserts that if he is not "made whole," the purpose underlying § 767.242 of vindicating parents whose physical placement rights have been interfered with will be undermined.

¶ 13 Vangelos counters that if the legislature intended to include guardian ad litem fees as part of the remedies contemplated under WIS. STAT. § 767.242(5)(b)1.b., it could have expressly done so. The fact that this statute does not expressly provide for the award of guardian ad litem fees, Vangelos asserts, supports the only reasonable inference that the legislature did not intend to make guardian ad litem fees subject to the statute. We agree with Bernier.

¶ 14 We first note that to effectuate the purpose of WIS. STAT. § 767.242, which is remedial in scope and purpose, the statute must be liberally construed. In that light we consider the text of § 767.242(5)(b)1.b. to determine whether the legislature intended to award successful petitioners under this statute the reasonable cost incurred in enforcing their physical placement rights.

¶ 15 WISCONSIN STAT. § 767.242...