Custody of D.M.M., In re, 85-1792

• Decision Date: 29 April 1987
• Docket Number: No. 85-1792,85-1792
• Parties: , 55 USLW 2691 In re the CUSTODY OF D.M.M. F.P.R., Appellant-Petitioner, v. J.M., Respondent.
• Court: Wisconsin Supreme Court

Page 530

404 N.W.2d 530

137 Wis.2d 375, 55 USLW 2691

In re the CUSTODY OF D.M.M.

F.P.R., Appellant-Petitioner, v. J.M., Respondent.

No. 85-1792.

Supreme Court of Wisconsin.

Argued Feb. 9, 1987.

Decided April 29, 1987.

Alan J. White (argued), Helland Law Offices, Wisconsin Dells and David H. Bennett Bennett and Bennett, Portage, for appellant-petitioner.

Mary Gibson-Glass (argued), and Legal Action of Wisconsin, Inc., Madison, for respondent.

STEINMETZ, Justice.

The issue in this case is whether a trial court has the authority to grant visitation rights to any persons other than those named in sec. 767.245, Stats., ¹ parent, grandparent or greatgrandparent. There is a preliminary issue of whether the visitation rights of F.P.R. had already been litigated in an action before the Honorable Raymond E. Gieringer in Adams county circuit court, which would bar the relitigation of this action in Columbia county circuit court.

The circuit court for Columbia county, the Honorable Earl J. McMahon, denied the petition of F.P.R. for visitation for two stated reasons:

"(A) The Circuit Court for Columbia County is not the proper forum for an appeal of an Order of the Circuit Court for Adams County, Wisconsin. By the Amended Petition of November 9, 1984, Petitioner is requesting this Court to over-rule the Order of June 7, 1984, entered by the Circuit Court for Adams County which states in part:

"(3) The Court makes no Order for visitation for [F.P.R.] at this time, having found that it has no authority to order visitation for [F.P.R.].

"(B) Section 767.245(4), Wisconsin Statutes, is as follows:

"(4) 'The Court may grant reasonable privileges to a grandparent or great grandparent of any minor child upon the grandparent or great grandparents' petition to the Court with notice to the parties if the Court determines that it is in the best interests and welfare of the child and issue any necessary order to enforce the same.' (Underlining mine)"

Judge McMahon concluded his decision by stating:

"The Legislature has clearly enumerated those persons to whom visitation rights may be granted and the designated persons do not include the category of 'aunt.' In view of this limitation, the Court declines to expand the category and leaves that to the legislature if they elect so to do."

The court of appeals did not discuss the issue of res judicata which was based on a previous denial of visitation for F.P.R. in Adams county and the same relief subsequently sought by petition before the Columbia county circuit court. ² The court of appeals stated that the sole issue is whether sec. 767.245, Stats., gives trial courts authority to order visitation for persons other than the child's parents, grandparents or greatgrandparents. The court of appeals found that the plain language of sec. 767.245 limits the exercise of visitation rights to those listed in the statute--parents, grandparents and greatgrandparents and therefore affirmed the trial court.

The child in this action was born on November 25, 1976, to J.M. and her husband at the time. On or about January 23, 1978, physical custody of the child was informally given to F.P.R., an aunt of the child. On November 7, 1978, F.P.R. was appointed guardian by the circuit court in Adams county. This guardianship was terminated in Adams county on June 5, 1984, almost six years after being granted. The request for visitation in Adams county circuit court was in the context of a guardianship proceeding and allegedly no testimony was taken. The order discharging the guardianship did not grant F.P.R. visitation. The Adams county circuit court in denying visitation to F.P.R. did not cite sec. 767.245, Stats., but rather stated visitation would not be granted for F.P.R. "at this time." This was not a clear statement of the court's lack of authority.

In Columbia county J.M. filed a motion to dismiss, or in the alternative, for a change of venue. The allegation was that the guardianship of F.P.R. "has been litigated and is still pending in Adams County."

After the guardianship was terminated in Adams county, F.P.R. filed a motion to vacate; a hearing was set and notices sent by the register in probate.

The Columbia county court signed a temporary order denying J.M.'s alternative motion to dismiss or change of venue relief. F.P.R. then filed a notice of motion and motion for appointment of a guardian ad litem for the child and for a case study and psychological studies to be conducted on all the parties.

The Columbia county circuit court then signed an order filed September 28, 1984, stating that F.P.R. seeks to amend her petition for a judgment awarding her rights of visitation, "and it having appeared to the court that the attorney for [J.M.] has no objection to an amendment of the Petition in respect thereto." The court then ordered that F.P.R. "is, given permission to serve and file an amended petition herein to provide for [an] award to her of rights of visitation," and F.P.R. was allowed to withdraw her motion for an appointment of a guardian ad litem and request for case and psychological studies. The motion for visitation was then filed in response to the order.

J.M. responded to this amended petition requesting that F.P.R. be denied the requested relief of visitation, or in the alternative, under sec. (Rule) 802.06(2)(f), Stats., moved to dismiss for failure to state a claim since F.P.R. is not a grandparent or greatgrandparent under sec. 767.245(4). J.M.'s brief filed with her response did not argue res judicata but merely stated that Judge Gieringer removed F.P.R. as guardian and, "The Court made no visitation award to petitioner."

Res judicata was presented as an issue in J.M.'s brief before the court of appeals. The court of appeals did not discuss res judicata in its decision which upheld J.M.'s position on the merits. If the court of appeals found that the res judicata argument was valid, it would not have reached the merits of the claim that the trial court had no authority to grant visitation under the statute. Therefore, the court of appeals silently rejected the claim of res judicata.

Section 802.02, Stats., ³ states that the defense of res judicata must be raised either in the responsive pleadings or by motion. As the court stated in Case v. Hoffman, 100 Wis. 314, 330, 75 N.W. 945 (1898):

"A judgment makes only that which was in issue and decided res judicata. The reasons given by the judges, whether few or many, are not res judicata. Nor is the effect of the judgment as an estoppel either restrained or enlarged by the reasons given, nor can its effect as res judicata extend to any matter only incidentally cognizable, or which is to be inferred by argument from the judgment."

As we stated in McCourt v. Algiers, 4 Wis.2d 607, 610, 91 N.W.2d 194 (1958):

" 'Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action.' " Quoting Restatement, Judgments, p. 293, sec. 68(1).

That is when res judicata applies and that is not the posture of the issue of visitation in this case. As we also stated in McCourt, fairness is one aspect of the application of res judicata. And, we stated in Alexopoulos v. Dakouras, 48 Wis.2d 32, 37, 179 N.W.2d 836 (1970):

"The defense of res judicata cannot be raised even where it is applicable by the method employed by the defendant herein. We have frequently stated that where res judicata is raised as a defense it must be pleaded and proved." See also Lowe v. Laursen, 201 Wis. 309, 230 N.W. 75 (1930).

The Columbia county circuit court considered the visitation issue on its merits, even though the court also stated it believed F.P.R.'s petition was in substance an appeal of the Adams county denial of visitation. The petition in Columbia county does not qualify as an appeal. In addition, the petition for visitation by F.P.R. in Adams county, it appears, was not considered as to lack of court authority through sec. 767.245, Stats., since Judge Gieringer of Adams county couched his decision in terms of "not at this time," which implies there is not a lack of authority.

In the Columbia county order dated September 14, 1984, and assented to by defendant's attorneys, the court specifically held that the attorney for the defendant had no objection to amending the petition from that of an action for custody to one for visitation.

As stated at 46 Am.Jur.2d, Judgments, sec. 585 (1969):

"Sometimes the failure to plead matters calling for the application of the doctrine of res judicata is regarded as a waiver thereof, but the failure to plead the estoppel of a judgment in the first instance has been held not to be a conclusive waiver of a party's right to plead such an estoppel if he has a further opportunity so to do, unless, perhaps, he has taken a position so inconsistent with its assertion as to amount to an election to abandon it."

The defendant's posture has been inconsistent with the application of the doctrine of res judicata.

On the merits of this case, sec. 767.245(2), Stats., states:

"The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; but the court shall not terminate a parent's visitation rights unless it finds that the visitation would endanger the child's physical, mental or emotional health."

Previous to the action before the Adams county circuit court, F.P.R. had custody and, if not prevented by law, the court should have the power to modify the custody order into a visitation order, if in the best interest of the child. To determine otherwise would mean that F.P.R., who had legal custody for six years, was not a person suited to be granted visitation. There is a distinction between a request for visitation ab initio from a person who never had custody of the child and a...