Derleth v. Cordova

• Decision Date: 05 November 2013
• Docket Number: 2012AP2802.,Nos. 2012AP2018,s. 2012AP2018
• Citation: 2013 WI App 142,352 Wis.2d 51,841 N.W.2d 552
• Parties: In re the marriage of Missy Ann DERLETH p/k/a Missy Ann Cordova, Petitioner–Appellant, v. Andrew Cole CORDOVA, Respondent–Respondent. In re the marriage of Missy Ann Derleth p/k/a Missy Ann Cordova, Petitioner–Respondent, v. Andrew Cole Cordova, Respondent–Appellant.
• Court: Wisconsin Court of Appeals

352 Wis.2d 51

841 N.W.2d 552

2013 WI App 142

In re the marriage of Missy Ann DERLETH p/k/a Missy Ann Cordova, Petitioner–Appellant,

v.Andrew Cole CORDOVA, Respondent–Respondent.

In re the marriage of Missy Ann Derleth p/k/a Missy Ann Cordova, Petitioner–Respondent,

v.Andrew Cole Cordova, Respondent–Appellant.

Nos. 2012AP2018, 2012AP2802.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 3, 2013.

Opinion Filed Nov. 5, 2013.

On behalf of the petitioner-appellant, petitioner-respondent, the cause was submitted on the briefs of Amy L. Ferguson and Todd R. McEldowney of O'Melia, Schiek & McEldowney, S.C., Rhinelander.

On behalf of the respondent-respondent, respondent-appellant, the cause was submitted on the briefs of John J. Hogan and Jennifer A. Stuber of Hogan and Melms, LLP, Rhinelander.

Before HOOVER, P.J., MANGERSON and STARK, JJ.

HOOVER, P.J.

¶ 1 Missy Derleth appeals a divorce judgment, arguing the circuit court had no authority to restrict her from moving outside the geographical area of the marital home as part of the child custody determination. Additionally, she argues the court erroneously excluded fringe benefits from her former husband's income and assets when determining child support and maintenance, and erroneously failed to consider the unvested part of one portion of a retirement account when dividing property.

¶ 2 Andrew Cordova, Derleth's former husband, appeals a subsequent order that effectively nullified the moving restriction the divorce judgment had imposed on Derleth.¹

¶ 3 We hold that the circuit court was without authority to restrict an intrastate move under 150 miles. Accordingly, we affirm the subsequent order that permitted Derleth to move. Further, we affirm that part of the divorce judgment addressing child support and maintenance, but reverse with regard to the property division issue.

BACKGROUND

¶ 4 Derleth and Cordova were married in June 2006. They previously resided in the Appleton area, but moved to Rhinelander to enhance Cordova's accounting career. Derleth scaled back her level of employment after each of the couple's children was born, in 2007 and 2010. She expressed a desire to return to Appleton throughout the marriage. Derleth filed for divorce in December 2011, and made employment, housing, school, and daycare arrangements in the Appleton area.

¶ 5 A final divorce hearing was held in May 2012. The circuit court found that Derleth had been the primary caregiver for the children. It also determined it was not feasible for Cordova to have primary placement of the children due to his work schedule. The court ordered joint custody with shared placement.

¶ 6 Derleth introduced a Mapquest map that showed her intended home with her boyfriend in Menasha was approximately 147 miles away from the marital home. Cordova and the guardian ad litem (GAL) were opposed to the move. The GAL declined to recommend a specific distance, but opined Derleth should be required to live within the local geographical area. Ultimately, the court concluded:

Looking at [Wis. Stat. § ] 767.41(5), I am going to restrict the placement to the geographical area.[ ²] I would say 45 miles would be subject to the best interest[s] of the children. We do have this mobility issue between [ Groh v. Groh, 110 Wis.2d 117, 327 N.W.2d 655 (1983) ] and, of course, [ § ] 767.481 and 767.41, but I think that the best interests of the children have to predominate over the other factors, and it appears clear to the court based upon the testimony presented here, the credibility of the testimony of each of the witnesses, that the best interest[s] of the children are served by having placement be restricted to the 45 mile geographical area.

¶ 7 The court also resolved issues of child support, maintenance, and property division. When determining child support and maintenance, the court excluded fringe benefits when calculating Cordova's gross income. With regard to property division, the court did not divide all of Cordova's retirement account. The retirement account was comprised of three parts, two of which were fully vested. The third part, profit sharing, was only eighty percent vested, but was due to be fully vested fifteen days after the final hearing. The court valued that part of the account at eighty percent of full value for purposes of the property division.

¶ 8 Derleth filed a notice of appeal from the divorce judgment in September 2012. The following month, she filed in the circuit court “motions for contempt and allowing move of less than 150 miles.” At the motion hearing the next month, the court indicated:

Here's my concern. I mean, my initial reading of the language in Groh is that the court just can't do it period. The language is pretty straightforward. Okay. But we have a situation where Judge Richards made a ruling, apparently Groh was brought to his attention, and it's on appeal before the Court of Appeals. And so in effect what I'm being asked to do is even though I look at it and I might say Judge Richards is just plain wrong, but procedurally I don't see how I can do that.

.... I'm making a finding that the law does not allow a trial court based on Groh to order where a custodial parent should live within the state so long as the move ... is within 150 miles. The Groh decision very directly and clearly states that.

While I am bothered by the—I am uncomfortable and not necessarily certain of my authority to basically remove that part of the judgment given the procedural posture of this case, I'm finding that the law does not preclude [Derleth] from moving within 150 miles of the marital residence.

Following the hearing, the court issued an order stating: “Wis. Stat[ ].. § 767.481 and the Groh decision clearly provide that the court may not preclude [Derleth] from moving within 150 miles. Therefore, [Derleth] is allowed to do so.” Cordova appeals that order.

DISCUSSION

Limitation on Derleth moving

¶ 9 The parties' appeals both raise the same issue: whether Groh and Wis. Stat. § 767.481 prohibited the circuit court from imposing the forty-five-mile moving restriction on Derleth. Because the issue is before us in both appeals, we need not concern ourselves with any procedural questions concerning the circuit court's review of the matter while Derleth's appeal was pending.³ Interpretation and application of statutes to a particular set of facts presents a question of law that is reviewed de novo. Minuteman, Inc. v. Alexander, 147 Wis.2d 842, 853, 434 N.W.2d 773 (1989).

¶ 10 In Groh, the court addressed a provision in what was then the visitation statute, Wis. Stat. § 767.245(6) (1979–80), which provided in part:

Whenever the court grants visitation rights to a parent, it shall order the child's custodian to obtain written approval of the parent having visitation rights or permission of the court in order to establish legal residence outside of this state or to remove the child from this state for a period of time exceeding 90 days.

The court held this provision prohibited a court from requiring a custodial parent who had lived in Milwaukee at the time of divorce to move back from Rhinelander to within fifty miles of Milwaukee. Groh, 110 Wis.2d at 119, 124, 327 N.W.2d 655.

¶ 11 The court explained, “ ‘in Wisconsin it has long been held that the courts of this state have no common-law jurisdiction over the subject of divorce and that their authority is confined altogether to such express and incidental powers as are conferred by statute (citing cases). Such is undoubtedly the law.’ ” Id. at 122–23, 327 N.W.2d 655 (quoting Dovi v. Dovi, 245 Wis. 50, 55, 13 N.W.2d 585 (1944)). Further, “where the legislature has set forth a plan or scheme as to the manner and limitation of the court's exercise of its jurisdiction, that expression of the legislative will must be carried out and power limitations adhered to.” Id. at 123, 327 N.W.2d 655.

¶ 12 Turning to the statute, the court observed Wis. Stat. § 767.245(6) (1979–80), “requires that a child's custodian obtain written permission of the noncustodial parent or permission of the court in order to establish legal residence outside the state.” Groh, 110 Wis.2d at 124–25, 327 N.W.2d 655. Interpreting this subsection, the court held it “cannot be read to give the court the power to order that a custodial parent live in a designated part of the state or lose custody of the children.” Id. at 125, 327 N.W.2d 655. The court reasoned:

Application of the doctrine of expressio unius est exclusio alterius to section 767.245 leads to the conclusion that the legislature's failure to specifically confer the power is evidence of legislative intent not to permit the exercise of the power. Application of this doctrine to this section is particularly appropriate because this statute is part of a comprehensive legislative plan addressing actions affecting the family. In considering the effect that the relocation of a custodial parent may have upon the visitation rights of a noncustodial parent, the legislature could have required that the custodial parents receive court permission for moves within the state. It did not establish such a requirement. The power that the legislature gave was one over out-of-state moves. The court has no power to order where a custodial parent should live within the state.

Id. (emphasis added).

¶ 13 Finally, the Groh court rejected an argument that courts had broad authority to issue any order affecting custody so long as it was made in the best interests of the children. Id. at 125–26, 327 N.W.2d 655. It explained:

If the trial court had the power to make any order it pleased so long as the order could somehow be justified by recitation of the rubric “in the best interests of the children,” the limits the legislature placed on the court's exercise of power in custody matters would be meaningless. Legal custody is subject to the provisions of court orders[, but] it is subject only to orders that the court is empowered to make. Since ...