In re Marriage of Biever v. Krueger, No. 2007AP113 (Wis. App. 6/20/2007), 2007AP113.

• Decision Date: 20 June 2007
• Docket Number: No. 2007AP113.,2007AP113.
• Parties: In re the Marriage of: Robert C. Biever, Petitioner-Respondent, v. Kasee E. Krueger f/k/a Kasee E. Biever, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

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In re the Marriage of: Robert C. Biever, Petitioner-Respondent, v. Kasee E. Krueger f/k/a Kasee E. Biever, Respondent-Appellant.

No. 2007AP113.

Court of Appeals of Wisconsin, District II.

Opinion Filed: June 20, 2007.

APPEAL from an order of the circuit court for Sheboygan County: GARY LANGHOFF, Judge. Affirmed.

Before Brown, Nettesheim and Anderson, JJ.

¶ 1 PER CURIAM.

Kasee E. Krueger appeals from an order transferring primary placement of her two sons to their father, Robert C. Biever, and setting her child support obligation. She challenges the determination that moving the children to a different city created a substantial change of circumstances and that it is in the best interests of the children to be placed with Robert. She claims it was error to not use the shared placement formula in setting child support or reduce her obligation because of travel expenses. We affirm the order.

¶ 2 Kasee and Robert were divorced in 2000 and share joint legal custody of their two sons. Primary placement was with Kasee and Robert exercised overnight placement on alternating weekends and evening placement on Tuesdays and alternating Thursdays. At the end of August 2004, Kasee had plans to marry Chris Krueger and gave Robert notice of her intention to move with the children, then ages six and five from Adell, Wisconsin, to Kansas City, Missouri. Robert objected and filed a motion to modify physical placement of the children.

¶ 3 When Robert's motion was heard on February 1, 2005, Kasee withdrew her request to move to Kansas City and agreed to a slight increase in placement with Robert. On March 1, 2005, Kasee gave Robert notice of her intent to move with the children to Middleton, Wisconsin, a distance of 125 miles from Robert's home. Again Robert moved to change primary placement to himself. On Robert's motion, the circuit court entered a temporary order prohibiting Kasee from removing the children from their school in the Batavia school district. Kasee moved to Middleton but kept the children in their school by driving them daily between Middleton and the Batavia school. In the fall of 2005, Kasee stayed with her mother which resulted in only a twenty to thirty minute commute to school.

¶ 4 On December 15, 2005, the circuit court granted Robert's motion and awarded him primary physical placement. Kasee appealed. This court summarily reversed the modification order because the guardian ad litem (GAL) had not conveyed the children's wishes to the circuit court. Biever v. Krueger, 2005AP3176, unpublished order (Wis. Ct. App. Oct. 18, 2006). We remanded the matter to the circuit court for the limited purpose of having the GAL fulfill his duty under Wis. Stat. § 767.407(4) (2005-06).¹

¶ 5 Immediately after receipt of our October 18, 2006 decision, the GAL interviewed the children and filed a letter report with the circuit court. On October 25, 2006, a hearing was conducted on Kasee's motion to reconsider child support, a motion which had been filed while the appeal was pending. After ruling on child support, the circuit court addressed this court's remand mandate and based on the GAL's report that the children were neutral with respect to placement, the circuit court entered anew its order granting Robert's motion for primary placement. Kasee again appeals.

¶ 6 We first address Kasee's contention that the circuit court lacked competency to address primary placement before remittitur of the record following this court's October 18, 2006 decision. See State v. Neutz, 73 Wis. 2d 520, 522, 243 N.W.2d 506 (1976) (determining that the trial court has no jurisdiction to act until it receives the remittitur in this case); WIS. STAT. § 808.08(1) (when the record and remittitur are received in the circuit court, the circuit court shall take specified action as soon as possible). See also WIS. STAT. § 808.09 (appellate court shall remit its decision and thereupon the court below shall proceed in accordance with the decision). Whether the circuit court had authority to act is a question of law that we review de novo. Harvest Savings Bank v. ROI Investments, 228 Wis. 2d 733, 737-38, 598 N.W.2d 571 (Ct. App. 1999). Despite pendency of an appeal, under WIS. STAT. § 808.075(4)(d)1., a circuit court may act to revise orders for periods of physical placement under WIS. STAT. § 767.451. When a judgment or order is reversed, it is no longer of any legal effect or consequence. Frisch v. Henrichs, 2006 WI App 64, ¶39, 290 Wis. 2d 739, 713 N.W.2d 139, review granted, 2006 WI 108, 292 Wis. 2d 409, 718 N.W.2d 723 (No. 2005AP534). Our summary reversal left Robert's motion for a change in primary placement still pending. The circuit court had authority to address it despite that the appeal may have still been pending because remittitur had not occurred.²

¶ 7 Kasee also claims that by raising the remanded mandate sua sponte the circuit court violated her due process rights to notice and opportunity to be heard. See Guelig v. Guelig, 2005 WI App 212, ¶32, 287 Wis. 2d 472, 704 N.W.2d 916 ("At the very least, due process mandates that a party has notice, actual or constructive, that is reasonably calculated to inform him or her of the pending decision as well as an opportunity to appear and be heard with respect to the defense of his or her rights."). Kasee made no objection to the circuit court taking up the remanded issue. Although the circuit court launched directly into the issue without inviting comments from the parties, there was the opportunity at the conclusion of the court's ruling to state an objection to proceeding without notice and to request an opportunity to be heard further on the issue.³ We have acknowledged that a hearing convened for one purpose may sometimes evolve into another type of hearing. See id., ¶38. If that happens, a party should state his or her objection on the record. Kasee waived her right to claim lack of notice and opportunity to be heard. See Olson v. City of Baraboo, 2002 WI App 64, ¶23, 252 Wis. 2d 628, 643 N.W.2d 796.

¶ 8 We reject any notion that it was wrong for the circuit court to proceed in summary fashion. Our summary disposition provided that it was within the circuit court's discretion what further proceeding would take place and that if the children's wishes are neutral, the circuit court could reenter its existing decision.⁴ Biever, 2005AP3176, unpublished order at 4. The circuit court did not, as Kasee contends, blindly rely on the GAL's recommendation. It made a finding that the children's wishes were neutral based on the GAL's report of his conversation with the children. We also reject Kasee's contention that it was error for the circuit court to address the question of past domestic abuse in relation to child placement at the October 25, 2006 hearing because it was beyond the scope of this court's remand. Although the circuit court was not required to conduct a new exercise of discretion in the face of the children's neutral wishes, see id., nothing prevented it from further explaining the decision it made. Public policy favors the circuit court's utilization of an opportunity to hone its analysis in aide of the appellate review process. See Highland Manor Assocs. v. Bast, 2003 WI 152, ¶17, 268 Wis. 2d 1, 672 N.W.2d 709. See also Tietsworth v. Harley-Davidson, Inc., 2006 WI App 5, ¶15, 288 Wis. 2d 680, 709 N.W.2d 901 (on remand the circuit court has discretion to address matters as seems wise and proper under the circumstances as long as not inconsistent with the mandate), review granted, 2006 WI 23, 289 Wis. 2d 9, 712 N.W.2d 34 (No. 2004AP2655).

¶ 9 We turn to the principle issue on appeal—whether the modification of primary placement was a proper exercise of discretion. See Landwehr v. Landwehr, 2006 WI 64, ¶7, 291 Wis. 2d 49, 715 N.W.2d 180. A discretionary decision is affirmed when the circuit court applies the correct legal standard to the facts of record and reaches a reasonable result. Keller v. Keller, 2002 WI App 161, ¶6, 256 Wis. 2d 401, 647 N.W.2d 426. Modification is proper if it is in the best interests of the child and there has been a substantial change of circumstances. Wis. Stat. § 767.451(1)(b)1. There is a rebuttable presumption that continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the child's best interest. Sec. 767.451(1)(b)2.

¶ 10 Kasee first argues that because a parent with primary physical placement of a child may move at distance less than 150 miles without notice to the other parent, see WIS. STAT. § 767.481(1)(a), her move to Middleton, a distance of 125 miles, does not constitute a substantial change of circumstances. She points out that the move did not force a change in Robert's periods of placement.

¶ 11 The removal statute, WIS. STAT. § 767.481(1)(a), has no role in determining whether a substantial change of circumstances occurred. It is a notice statute related only to moves that trigger its operation. It does not preclude a move of a lesser distance from being a factor in determining whether a substantial change of circumstances occurred.

¶ 12 "Whether a `substantial change of circumstances' has occurred is a legal question." Keller, 256 Wis. 2d 401, ¶7. The parties initially lived in close proximity to one another. The circuit court found the placement arrangement worked well and each parent was accommodating to the other's schedule with respect to placement. It found that the move of 125 miles creates logistical problems which impacts the children's lives, most notably the frequent 250-mile roundtrip car ride. An additional change was that the children had started school and were doing well in their school. The court also found the move would remove the children from their friends, extended family with whom they enjoy a close relationship, security and routine. Kasee's move created a substantial change of circumstances.

¶ 13 The circuit court acknowledged...