IN RE MARRIAGE OF LOFTHUS v. Lofthus

• Decision Date: 03 February 2004
• Docket Number: No. 03-1754.,03-1754.
• Citation: 270 Wis.2d 515,2004 WI App 65,678 N.W.2d 393
• Parties: IN RE the MARRIAGE OF: Rana R. LOFTHUS, n/k/a Rana R. Rogge, Petitioner-Respondent, v. Paul Malcolm LOFTHUS, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

270 Wis.2d 515

2004 WI App 65

678 N.W.2d 393

IN RE the MARRIAGE OF: Rana R. LOFTHUS, n/k/a Rana R. Rogge, Petitioner-Respondent, v. Paul Malcolm LOFTHUS, Respondent-Appellant.¹

No. 03-1754.

Court of Appeals of Wisconsin.

Submitted on briefs January 6, 2004.

Decided February 3, 2004.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Paul Lofthus, pro se, of New Auburn.

On behalf of the petitioner-respondent, the cause was submitted on the brief of James M. Isaacson of Cadott.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. HOOVER, P.J.

Paul Lofthus appeals orders appointing a guardian ad litem, denying his motion for modification of a physical placement order, and requiring him to pay the full amount of the guardian ad litem's fees. Paul challenges the constitutionality of the physical placement and guardian ad litem statutes. While we disagree with some of the trial court's rationale, we nonetheless reject Paul's arguments and affirm the orders.

Background

¶ 2. Paul and Rana Lofthus divorced in January 1996. At that time, their two children were five and seven years old. The parties were given joint legal custody, but primary placement was with Rana. Paul filed a motion to modify placement in September 1996, claiming that Rana had changed the final placement order conditions. Paul had previously approved a temporary order and agreed to allow Rana to draft the final order, assuming they would be the same. The court ordered mediation, but Paul and Rana could not agree. The court then conducted a hearing on the motion in May 1997, orally ordering changes in the placement.

¶ 3. In July 1997, Paul filed a motion for clarification of the court's oral ruling because disagreements in interpretation prevented the parties from drafting an order for the court's approval. The court then entered its own written order, but heard arguments on the motion in August. Based on the hearing and correspondence, an order modifying placement was entered in December 1997. In October 1998, Paul and Rana entered a stipulation changing placement yet again.

¶ 4. In February 2002, Paul filed a petition for modification claiming the children wanted a change in placement. It is from this petition that the current appeal's issues arise. Paul's main request was for equal time with his children. Paul also objected to appointing a guardian ad litem for the children for further proceedings.

¶ 5. The court held a hearing on the guardian ad litem issue in October 2002. Although there had been a guardian ad litem previously in the case, Paul claimed that one was not necessary this time because he was only challenging the placement of the children and there was no evidence "to raise a concern for the welfare of [his] children." Rana requested the court to appoint the guardian ad litem pursuant to statutory requirements. The trial court concluded that the proposed placement change would be substantial and that it had no option under the law but to appoint the guardian ad litem to represent the children.

¶ 6. The hearing on the modification motion was in March 2003. Paul argued that there had been several substantial changes since the last time placement was changed, warranting modification. Paul also argued that appointment of the guardian ad litem and anything less than equal placement unfairly burdened his constitutional right to the care and custody of his children.

¶ 7. The trial court rejected the constitutional challenges, concluded that Paul had not met the "substantial change of circumstances" threshold for modifying placement,² and concluded that in any event modification was contrary to the children's best interests. The court then required that Paul pay the guardian ad litem's fees in full, rather than dividing them between Paul and Rana, because it concluded that Paul was advancing a theory of the case that had been previously tried and rejected multiple times by litigants in other cases. Paul appeals.

Discussion

Whether Paul Has A Constitutional Right to Equal Placement

[1-3]

¶ 8. The constitutionality of statutes is a question we review de novo. State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989). Statutes are presumed constitutional, and we will sustain a statute as constitutional if there is any reasonable basis for the legislature's choice to enact it. Id. The party challenging a statute as unconstitutional bears the burden of proving so beyond a reasonable doubt. Id.

[4]

¶ 9. Paul's arguments are premised on an underlying assumption of an absolute right to equal placement. He relies heavily on Troxel v. Granville, 530 U.S. 57 (2000), to argue that he has a fundamental right to equal placement. Troxel, however, is distinguishable. There, the United States Supreme Court held that the application of a statute granting paternal grandparents visitation rights violated the mother's right to raise her children. Id. at 68-75. In this holding, the Court reaffirmed the liberties protected by the due process clause of the Fourteenth Amendment include "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id. at 66. It is with this fundamental right that Paul claims the physical placement statutes are incompatible.

[5]

¶ 10. This case, however, does not involve a conflict between a parent and two grandparents. It involves two parents with equal rights. Moreover, we agree with Troxel's underlying principle: Parents have a fundamental right to the care and custody of their children. See Barstad v. Frazier, 118 Wis. 2d 549, 556-57, 348 N.W.2d 479 (1984)

. But this does not mean parents have an absolute fundamental right to equal placement after divorce.

¶ 11. In Lassiter v. DSS, 452 U.S. 18, 27 (1981), the Supreme Court wrote that the parent's right to custody and care of his or her children "undeniably warrants deference and, absent a powerful countervailing interest, protection." Here, the State's countervailing interest is the need to have heightened judicial supervision over divorced families because of unique problems that exist in a home split by divorce. See LeClair v. LeClair, 624 A.2d 1350, 1357 (N.H. 1993)

.

¶ 12. While Paul argues that he and Rana have both been determined fit parents and this precludes the state's involvement, he has not demonstrated how or why, after a divorce, the state does not have the right to arbitrate a dispute between parents who cannot agree on what should happen to their children.³ Indeed, Paul and Rana's repeated appearances before the court because of their mutual inability to deal with placement demonstrates the very need for state intervention. Therefore, the state's regulation of post-divorce custody disputes is not constitutionally impermissible.⁴ Whether Paul Has a Statutory Right to Equal Placement

[6, 7]

¶ 13. Interpretation of a statute is a question of law. In re Curiel, 227 Wis. 2d 389, 404, 597 N.W.2d 697 (1999). Paul's statutory basis for his claim to equal placement is in WIS. STAT. § 767.24(4)(a)2,⁵ which states: "In determining the allocation of periods of physical placement, the court shall ... set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent...." This language was added to § 767.24 in 1997 and took effect after the initial placement order in this case. Previously, the statute made no mention of meaningful periods or maximized time and the court was therefore not required to consider these two factors.

[8]

¶ 14. However, we recently rejected the contention that WIS. STAT. § 767.24(4)(a)2 requires equal placement. Keller v. Keller, 2002 WI App 161, ¶ 12, 256 Wis. 2d 401, 647 N.W.2d 426. Regardless whether Paul agrees with that result, and regardless whether we agree, we are bound by our previous decisions and cannot modify them. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997)

.

Whether There Was a Substantial Change of Circumstances

[9]

¶ 15. Paul initially argued that the "substantial change of circumstances" requirement of WIS. STAT. § 767.325(1)(b)1.b created an unconstitutional burden on the parent seeking modification. However, because there is no constitutional or even statutory requirement for equal placement between parents, we cannot conclude that § 767.325(1)(b)1.b's substantial change of circumstances requirement is an unconstitutional impediment to modifying placement. Nonetheless, Paul alleges the court erred by not concluding that there had been a substantial change of circumstances.

[10]

¶ 16. The circuit court has wide discretion in making physical placement decisions. Wiederholt v. Fischer, 169 Wis. 2d 524, 530, 485 N.W.2d 442 (Ct. App. 1992). We sustain a discretionary decision if the court made its determination based on facts of record, demonstrated logical rationale, and made no error of law. Licary v. Licary, 168 Wis. 2d 686, 692, 484 N.W.2d 371 (Ct. App. 1992).

[11-14]

¶ 17. Under WIS. STAT. § 767.325(1)(b)1.b, a substantial change of circumstances is a prerequisite to modifying a physical placement order. Whether there has been a substantial change of circumstances is a mixed question of law and fact. Rosplock v. Rosplock, 217 Wis. 2d 22, 32-33, 577 N.W.2d 32 (Ct. App. 1998). The circuit court's fact finding regarding circumstances "before," at the time of the last order substantially affecting placement, and "after," at the time of the new motion, and whether when compared these facts constitute a change will not be disturbed unless they are clearly erroneous. Id. at 33. However, whether the change is substantial is a question of law we review de novo. Id. A substantial change of circumstances is one such that it would be unjust or inequitable to strictly hold either party to the original judgment. Id.

¶ 18. Paul points to seven changes he claims...