Hughes v. Hughes

• Decision Date: 12 November 1998
• Docket Number: No. 97-3539,97-3539
• Citation: 223 Wis.2d 111,588 N.W.2d 346
• Parties: In re the Marriage of Dawn D. HUGHES, Joint-Petitioner-Appellant, v. Mark A. HUGHES, Joint-Petitioner-Respondent.
• Court: Wisconsin Court of Appeals

Page 346

588 N.W.2d 346

223 Wis.2d 111

In re the Marriage of Dawn D. HUGHES, Joint-Petitioner-Appellant, v. Mark A. HUGHES, Joint-Petitioner-Respondent.

No. 97-3539.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 4, 1998.

Opinion Released Nov. 12, 1998.

Opinion Filed Nov. 12, 1998.

[223 Wis.2d 113] On behalf of the joint-petitioner-appellant, the cause was submitted on the briefs of Linda Roberson and Jane D. Clark of Balisle & Roberson, S.C. of Madison.

On behalf of the joint-petitioner-respondent, the cause was submitted on the brief of Bonnie S. Musial of [223 Wis.2d 114] Julian, Musial & Friedrich. S.C., and John A. Koshalek of Koshalek Law Office of Madison.

Before EICH, VERGERONT and DEININGER, JJ.

VERGERONT, J.

This is a post-divorce proceeding concerning the physical placement of Julie, the minor daughter of Dawn and Mark Hughes. Dawn, who had primary physical placement of Julie pursuant to the divorce judgment, appeals the trial court order denying her request to move Julie to Iowa with her and awarding Mark primary physical placement with final decision-making authority on all legal custody issues. She contends that the trial court erred because it applied § 767.325, STATS., governing modification of placement custody orders, rather than § 767.327, STATS., governing moving with a child from the state, and that the evidence does not support a transfer of primary placement to Mark under § 767.327. She also contends the trial court erred by failing to allow Julie to testify.

We conclude that the trial court correctly applied § 767.325, STATS., the evidence supports the trial court's findings, and the court properly exercised its discretion in deciding to transfer primary placement to Mark and to grant him final decision-making authority. We also conclude the trial court had the discretion to decide whether to permit Julie to testify, and it properly exercised its discretion in not permitting her to do so. We therefore affirm.

BACKGROUND

Mark and Dawn were divorced on January 1, 1993, after having lived in separate residences since August 1990. Julie, born August 5, 1982, and her older sister Jennifer, born November 11, 1977, lived with Dawn during this pre-divorce separation, and Dawn was their primary caretaker. Under the terms of the divorce judgment, Dawn was awarded primary physical placement of both children, and Mark had physical placement every other weekend, three hours each Wednesday night, and at least four weeks of vacation time. Dawn and Mark both lived in the Madison area at that time.

During the summer of 1996, Mark requested mediation to resolve problems concerning various aspects of Julie's placement arrangements, but this apparently was not successful. On September 16, 1996, Dawn sent Mark a notice under § 767.327, STATS., advising him of her intent to move with Julie to the Waterloo/Cedar Falls, Iowa area. As Dawn later testified, she graduated from law school in the summer of 1994, and about a year later began looking for jobs in the Madison area. However, she was unable to find employment. In September 1996, she applied for a position as a judicial clerk in Blackhawk County, Iowa, where she and Mark had family and where Jennifer had been born.

Mark timely objected to Dawn's proposed move. Also, on October 16, 1996, he filed a motion to modify physical placement by awarding him primary physical placement, or in the alternative, prohibiting Dawn from moving with Julie outside the State of Wisconsin and increasing his periods of physical placement. While the family court counseling service was conducting a placement evaluation, Dawn requested a temporary order permitting her to move with Julie to Iowa because she had been offered the job. Dawn moved to Iowa, without Julie, to begin the job on December 2, 1996. On February 10, 1997, the court denied Dawn's motion for a temporary order.

The parties agreed to accept the recommendations of the guardian ad litem and the family court counselor for Julie's physical placement pending trial. They recommended that Julie reside primarily with Mark, spending time with Dawn in Iowa on certain weekends and school holidays.

Dawn had requested that Julie be permitted to testify at trial, but the court ruled it would be inappropriate for her to testify. The court acknowledged there was some advantage to hearing from Julie personally, but the court was concerned by the parents' high level of hostility over Julie's physical placement and the difficulty for Julie in testifying about her preferences in front of both parents. The court referred to the suffering that Julie had already experienced from "being torn apart" by the conflicts between her parents. The court noted that a number of people had spoken to Julie about her preferences and would be testifying, so the court would be informed of Julie's views. For the same reasons, the court declined to involve Julie in conversation in chambers.

The trial took place over three days in July 1997, and the parties and guardian ad litem submitted post-trial briefs. The guardian ad litem recommended primary physical placement and final decision-making authority with Mark. The court rendered a lengthy oral decision, followed by written findings of fact and conclusions of law.

The court made the following findings, among others: At the time of divorce, Jennifer and Julie each had a good relationship with Mark, but presently Jennifer is alienated from her father and Dawn was a significant force in the breakdown of that relationship. Dawn's level of hostility toward Mark and her interference in his relationship with their daughters has increased markedly since the divorce, and there has been a lengthy record of the parties' inability to cooperatively co-parent Julie. Mark has demonstrated an ability to set aside his own needs to make decisions in Julie's best interests but Dawn has consistently shown her inability to do so. Julie has a significant relationship with both parents and it is in her best interest to maintain that. It is much more likely that Julie will have a relationship with both parents if she lives with Mark rather than with Dawn. Dawn's current living situation with a man is not stable whereas Mark's living situation with a woman is stable. Mark appropriately parents Julie and is After making these findings, the court decided it could rely on either § 767.325, STATS., ¹ the statute governing revisions to physical placement orders, or § 767.327, STATS., ² the statute governing moving the child's residence outside the state, and it decided to rely on § 767.325. The court made these conclusions: there has been a substantial change in circumstances since the last physical placement order; Mark has overcome the presumption that continuing

aware of her social, emotional and academic needs. Julie has made an excellent adjustment to her community and school in Verona and has a close group of friends there. Initially Julie expressed the wish not to decide where she would live, but prior to trial she expressed the wish to various witnesses and in her letter to the court to live with her mother. This expressed preference is more the product of her mother's pressure than Julie's own preference the current allocation of decision making and physical placement is in the best interest of Julie; and it is in Julie's best interest to award primary physical placement and final decision-making authority regarding all legal custody issues to Mark.

STATUTORY STANDARD

Whether to modify a placement or custody order is directed to the trial court's discretion. See Severson v. Severson, 71 Wis.2d 382, 386-87, 238 N.W.2d 116, 120 1976). We affirm a court's discretionary determination when the court applies the correct legal standard to the facts of record and reaches a reasonable result. See Kerkvliet v. Kerkvliet, 166 Wis.2d 930, 938-39, 480 N.W.2d 823, 826 (Ct.App.1992). Our task as the reviewing court is to search the record for reasons to sustain the trial court's exercise of discretion. See Brandt v. Witzling, 98 Wis.2d 613, 619, 297 N.W.2d 833, 836 (1980). However, when the contention is that the trial court erroneously exercised its discretion because it applied an incorrect legal standard, we review that issue of law de novo. Kerkvliet, 166 Wis.2d at 939, 480 N.W.2d at 826.

Dawn contends that the trial court erroneously exercised its discretion because it did not apply § 767.327, STATS., but instead erroneously applied § 767.325, STATS. According to Dawn, since she filed notice of her intention to move before Mark filed his motion for a change in physical placement, the court could proceed only under § 767.327. Under § 767.327(3)(a)2.a, she contends, the court could award Mark primary physical placement only if Mark rebutted the presumption of continued primary placement with her by showing that the move "is unreasonable and not in the best interest of the child." Dawn argues that the court did not find the purpose of her move to be unreasonable, see § 767.327(5)(a), and it rejected her proposal to modify the current placement schedule to compensate Mark for the weekdays he would miss if Julie moved to Iowa by increasing her placement with him at other times, see § 767.327(5)(c). Therefore, according to Dawn, the court erroneously exercised its discretion in transferring primary placement.

Mark responds that the trial court could properly apply § 767.325, STATS., because he moved for a modification of the physical placement order based on circumstances unrelated to the move--the change in Julie's developmental needs and Dawn's interference in his relationship with both their older daughter and Julie. He contends that Dawn filed the notice of intent to move because she knew Mark intended to request a change in physical placement, ³ and it would be unreasonable to construe § 767.327, STATS., to deprive him of all relief under § 767.325 simply because Dawn filed her motion before h...