IN RE MARRIAGE OF GREENE v. Hahn, 03-3311.

• Decision Date: 28 October 2004
• Docket Number: No. 03-3311.,03-3311.
• Citation: 2004 WI App 214,277 Wis.2d 473,689 N.W.2d 657
• Parties: IN RE the MARRIAGE OF: Linda L. GREENE p/k/a Linda L. Hahn, Petitioner-Appellant, v. Richard V. HAHN, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

277 Wis.2d 473

2004 WI App 214

689 N.W.2d 657

IN RE the MARRIAGE OF: Linda L. GREENE p/k/a Linda L. Hahn, Petitioner-Appellant, v. Richard V. HAHN, Respondent-Respondent.

No. 03-3311.

Court of Appeals of Wisconsin.

Submitted on briefs June 4, 2004.

Decided October 28, 2004.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Lisa Goldman and Robert F. Nagel of the Law Offices of Robert Nagel, Madison.

On behalf of the respondent-respondent, the cause was submitted on the brief of Mary Anne Kircher and Sabina Bosshard of Bosshard & Associates, La Crosse.

Before Deininger, P.J., Dykman and Higginbotham, JJ.

¶ 1. DEININGER, P.J.

Linda Greene appeals an order that designated her former husband, Richard Hahn, as "the person responsible for determining ... school enrollment" for their younger son, Spencer. She claims that the court erred in granting Richard the authority to determine Spencer's place of school enrollment because the order interferes with her right, as the child's primary physical custodian, to determine Spencer's place of residence. Linda also contends that the trial court erroneously exercised its discretion in modifying the parties' joint legal custody of Spencer under WIS. STAT. § 767.325 (2001-02)¹ because (1) the court failed to refer the parties to mediation; (2) the court did not expressly find a substantial change in circumstances from those existing at the time of the previous custody order; and (3) the record lacks evidentiary support for a conclusion that Spencer's best interest is served by his attending a private military academy instead of continuing to attend a public high school in La Crosse. We are not persuaded by any of Linda's claims of error, and we therefore affirm the appealed order.

BACKGROUND

¶ 2. Linda and Richard were married in 1981 and they divorced in 1990. Their Minnesota divorce judgment awarded them "permanent joint legal custody" of their two minor sons. Linda, who was awarded "permanent physical custody" of the two boys, moved to Wisconsin and Richard moved to Illinois. At the time of the divorce, the parties' older son, Adam, was four years old and the younger, Spencer, was not yet two.

¶ 3. In conjunction with a motion in 1992 seeking increased child support, Linda filed the parties' Minnesota divorce judgment with the La Crosse County Circuit Court. A second post-judgment proceeding in La Crosse County regarding support was initiated by Richard in 2000. He also moved in 2001 to revise the judgment "so as to award him primary physical placement of the minor children of the parties." No revision was ordered, however, because the parties resolved the placement issue by agreeing "to work together to solve the issues of concern relating to their two sons."

¶ 4. Richard again sought modification of the divorce judgment in July 2003. He moved for a court order "allowing him to enroll both of his sons at St. John's Northwestern Military Academy," which is located in Delafield, Wisconsin, for the academic year beginning in September 2003. The motion was initially heard by a court commissioner, who appointed a guardian ad litem for the now seventeen- and almost fifteen-year-old boys. The guardian ad litem recommended that Adam remain in La Crosse and attend Logan Senior High School for his senior year. A major factor in this recommendation was Adam's statement to the guardian ad litem that he would leave St. John's Academy as soon as he turned eighteen in December. The guardian ad litem also recommended that Adam sign a written contract with his parents regarding his conduct, expectations regarding his schoolwork and related items.

¶ 5. As to Spencer, the guardian ad litem recommended that he enroll at St. John's Academy "for the remainder of his high school years," as Richard requested. This recommendation was based on the guardian ad litem's conclusion that Spencer's failing grade point average as a freshman at Logan Senior High, his use of marijuana and one or more incidents of theft, all indicated that Spencer "was going down the same path as Adam, poor grades and poor choices for friends, at a faster speed than Adam." After hearing evidence at an unreported hearing, the court commissioner entered an order that "it is in the best interests of the children that Richard ... be designated as the person responsible for determining Spencer's school enrollment, and that Linda ... be the person responsible for determining Adam's school enrollment."

¶ 6. Pursuant to the court commissioner's order, Richard enrolled Spencer at St. John's Academy for the fall semester. Linda requested the circuit court to hear Richard's motion de novo. The court took testimony over three days in September and early October of 2003. In addition to both parties' testimony, the court heard from a substance abuse counselor, the boys' high school principal, and from a psychologist who had met with the boys at their mother's request. At the conclusion of the testimony, the guardian ad litem informed the court that her recommendation had not changed. She continued to believe that enrollment at St. John's was in Spencer's best interest, in that it provided structure, "he's doing well, and he's also able to avoid drugs."

¶ 7. The court, in a ruling from the bench, found that, at least with respect to educational decision-making, "[t]he parents ... rather than cooperating, are engaging in a pitched battle that puts the two kids in the middle." The court also found that both boys "are in pretty deep trouble, very deep trouble. They've already had some contact with the criminal justice system, and I suspect that unless things change drastically, one or the other, probably both, are going to spend some time in front of a judge." Although the court acknowledged that "[p]redicting human behavior is difficult at best," it noted that "past performance" is often "the best predictor." Accordingly, the court concluded that the older brother's continuing difficulties — marijuana use, legal difficulties, ineligibility for athletics, poor academic performance — reflected poorly on Spencer's prospects for avoiding similar problems if he remained in La Crosse and in his present school setting.

¶ 8. The court then concluded and ordered as follows:

It looks to me that unless something changes, Spencer is going down the exact same path that Adam has already started.

. . . .

As to Spencer, there is some time, there is some help. We can do something. And I am going to affirm the order of the family court commissioner and grant to Mr. [Hahn] the authority to determine what educational program he will follow. And if Mr. [Hahn] wants him to go to Saint John's, so be it.

The trial court subsequently entered a written order affirming the court commissioner's order. Linda appeals.

ANALYSIS

¶ 9. Linda appeals the circuit court's post-judgment modification of the custody provision in the parties' divorce judgment. We are thus called upon to review a trial court's discretionary determination, which we will not reverse unless the court incorrectly applied the law, misinterpreted or overlooked relevant facts or otherwise failed to reason its way to a decision that a reasonable judge could reach. See Keller v. Keller, 2002 WI App 161, ¶ 6, 256 Wis. 2d 401, 647 N.W.2d 426. Although our overall standard of review is that applicable to a trial court's discretionary determination, as to any questions of law presented, our review is de novo. See Kerkvliet v. Kerkvliet, 166 Wis. 2d 930, 938-39, 480 N.W.2d 823 (Ct. App. 1992). Finally, to the extent that Linda challenges any of the trial court's factual findings, she must convince us that the findings are clearly erroneous. WIS. STAT. § 805.17(2).

¶ 10. Linda's first and principal claim of error rests on her assertion that the appealed order conflicts with her rights under the parties' Minnesota divorce judgment. St. John's is a residential academy which requires its students to remain on its campus during most school days and nights, as well as on some weekends. Linda points out that by granting Richard the sole right to determine "Spencer's school enrollment," and thus permitting Richard to enroll Spencer at St. John's, the appealed order effectively gives Richard control over where Spencer will reside for a major portion of the year. This, she claims, is contrary to the provision in the parties' divorce judgment awarding her "permanent physical custody" of Spencer.

¶ 11. Linda essentially claims that the trial court lacked authority to enter the order it did, and she relies, in part, on a Minnesota statute. Because the parties' original divorce judgment gave her sole "permanent physical custody" of Spencer, she argues that the judgment permanently grants her the sole right to determine "the routine daily care and control and the residence of the child." See MINN. STAT. § 518.003(3)(c). Thus, in Linda's view, despite Richard's status as Spencer's joint legal custodian, he could not be granted the right to make decisions regarding where Spencer would reside because that would interfere with her sole right, as Spencer's physical custodian, to decide Spencer's residence. ¶ 12. We reject Linda's attempted reliance on a Minnesota statute and the provisions of the parties' original divorce judgment in this fashion. It was Linda who first filed the Minnesota judgment with the La Crosse County Circuit Court in 1992 and requested that court to assume jurisdiction for purposes of deciding a post-judgment motion to increase child support. Richard, likewise, subsequently filed motions in La Crosse County seeking to modify the judgment's support and placement provisions. Wisconsin thus became the forum for proceedings brought by either party to enforce or modify their divorce judgment, which must be treated and given the "same effect" as if it were a Wisconsin judgment. See WIS. STAT. § 806.24(2) ("A judgment so filed has the same effect and is...