IN RE MARRIAGE OF GUELIG v. Guelig

• Decision Date: 31 August 2005
• Docket Number: No. 2005AP346.,2005AP346.
• Citation: 704 N.W.2d 916,287 Wis.2d 472,2005 WI App 212
• Parties: IN RE the MARRIAGE OF: Rebecca Lynn GUELIG, Petitioner-Respondent, v. Timothy Gerard GUELIG, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

287 Wis.2d 472

2005 WI App 212

704 N.W.2d 916

IN RE the MARRIAGE OF: Rebecca Lynn GUELIG, Petitioner-Respondent, v. Timothy Gerard GUELIG, Respondent-Appellant.

No. 2005AP346.

Court of Appeals of Wisconsin.

Submitted on briefs June 2, 2005.

Decided August 31, 2005.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Timothy R. Young of Dempsey, Williamson, Young, Kelly & Hertel, LLP of Oshkosh.

On behalf of the petitioner-respondent, the cause was submitted on the brief of William K. McKibbage of McKibbage Law Office, S.C. of Fond du Lac

Before Brown, Nettesheim and Snyder, JJ.

¶ 1. BROWN, J.

This case presents us with the opportunity to review the proper procedures surrounding the parties' submission of parenting plans where the parents contest placement. Here, the court adopted the mother's parenting plan in toto because the father had not submitted his at the time of the scheduling conference. We hold that this was improper. First, the court should not have considered placement and custody issues when the father had not yet received a copy of the mother's proposal. Our statutes, as well as due process, contemplate such an exchange. Moreover, because we conclude that a scheduling conference is not a pretrial conference, the father did not waive his right to object to his wife's proposal when he failed to submit his own plan prior to the scheduling conference. Indeed, the father had no notice, statutory or otherwise, that the court might consider custody and placement at that time. Hence, he was entitled to his day in court. Finally, even if we assume waiver on the father's part, the paramount concern in placement and custody decisions is the best interests of the minor child. Although the court may consider one party's uncooperative behavior a salient factor, it must clearly articulate how the parent's recalcitrance bears on the child's best interests. Accordingly, we reverse the decision below and direct the trial court to hold a new hearing on custody and placement.

Facts

¶ 2. Because the facts are so important to the legal issues in this case, we set them forth at some length. Timothy Gerard Guelig and Rebecca Lynn Guelig married on November 1, 1997. The parties had one child, Emma, born on February 15, 2001. On March 15, 2004, Rebecca filed a petition for divorce. ¶ 3. Two days later, on March 17, the family court commissioner entered an order requiring the parties to attend an educational program entitled "Living Apart, Parenting Together." The program's objective involved educating parents on the effects parental separation could have on their children. The order also directed the parties to file a proposed parenting plan by the time of the pretrial conference. A second order, dated April 21, ordered Timothy and Rebecca to attend a May 18 mediation session to discuss placement issues.

¶ 4. Both Timothy and Rebecca attended the mediation session and arrived at a stipulation with respect to temporary placement. The temporary placement agreement provided for essentially equal placement between the parties. The family court commissioner signed an order incorporating that stipulation the same day. The order called for the following arrangement: Mondays and Tuesdays were always with Rebecca, Wednesdays and Thursdays were always Timothy's days, and weekends, beginning on Friday and ending on Monday morning, would alternate each week. The parties were to meet on July 9 to further discuss the parenting plan.

¶ 5. Both Rebecca and Timothy also attended the program on parenting, pursuant to the March 17 order, on May 24. Among the subjects discussed at that program, the family court counselor went over the importance of parenting plans. She informed the parties that they needed to file their plans before any pretrial conference occurred and provided a booklet that explained the consequences of not doing so.

¶ 6. Rebecca appeared at a July 29 mediation as scheduled, but Timothy did not, and the mediation was rescheduled for August 10. The August 10 mediation did not result in any agreement on placement and custody, so the court appointed a guardian ad litem on August 17. The court dismissed the GAL on November 5, however, because Timothy had not paid his share of the GAL fees. Timothy also failed to pay his $100 share of the placement mediation fees. Rebecca paid her $100 share.

¶ 7. Rebecca filed her parenting plan with the court on November 18. The plan contemplated joint legal custody but gave primary physical placement to Rebecca. Attached to the plan was a schedule for 2005. Each day highlighted in dark gray represented a day when Rebecca was to have placement. Other than which parent got placement, the schedule did not specify where the child would be (home, daycare, etc.) or at what times placement on a particular day would begin or end. Timothy did not receive a copy of Rebecca's plan.

¶ 8. The court commissioner reappointed the GAL in a December 3 order because Rebecca's counsel thought his services would help expedite the process of reaching an agreement. The order provided that each party must submit a proposed parenting plan to the clerk of courts by January 15, 2005. The parties were also to provide a copy to the GAL. In addition, the order directed the GAL to provide the parties, counsel, and the court with his written recommendation within ninety days. That recommendation was to include specific periods of placement for both parties "[i]n order to ensure that the best interests of the minor child(ren) are enhanced and promoted through a responsible assessment of placement."

¶ 9. The court held a scheduling conference on December 9. Both parties had notice of this hearing. Rebecca appeared with counsel, but Timothy did not attend. At the scheduling conference, the court asked the GAL whether the parenting plan that Rebecca had submitted was "in any way emotionally harmful or in any way detrimental to the interest of the child." The GAL stated that it was not. The court subsequently entered a scheduling order. The order set a trial date of December 30. It also adopted Rebecca's parenting plan in its totality because she had "duly filed" her parenting plan and the court had not yet received one from Timothy.

¶ 10. Shortly thereafter, Timothy retained counsel. Counsel filed a motion on December 22 to adjourn the December 30 trial to a time when counsel was available and to reactivate the GAL. Counsel also moved to strike the parenting plan Rebecca had filed, asserting that it constituted an ex parte communication of which Timothy had received no notice. The motion further asked the court to vacate the part of the scheduling order that adopted Rebecca's parenting plan and maintained that Timothy was entitled to file his own plan and to have that plan considered by both the court and the GAL. Timothy filed his proposed parenting plan on December 27.

¶ 11. The court heard counsel's motion at the beginning of the December 30 proceedings. It called the family court counselor to testify about the educational programming that the parties attended and the process and procedure with respect to filing parenting plans. The counselor testified about what she goes over during that program and the materials she provides for participants. Timothy's counsel engaged the witness in the following colloquy:

Q. Do you go through the difference between a scheduling conference and a pre-trial conference?

A. No. . . .

Q. [T]here is only one place in the 48 page packet [distributed at the program] where it says . . . that you must file a parenting plan at or before any . . . pre-trial conference. . . .

. . . .

Q. And it clearly says the pre-trial conference. There is no reference in any of the material . . . that you provide, or in any of the oral presentation that that parenting plan has to be provided before a scheduling conference is held, correct?

A. Well, the statute calls it a pre-trial conference, so I wouldn't call it anything else.

¶ 12. Following the counselor's testimony, the court denied Timothy's request to continue the trial and to reactivate the GAL. The court also made clear that the issue of placement was off the table and announced that no further custody study or mediation would take place. In pertinent part, the court stated:

[T]he Parenting Plan Agreement is very clear by statute. . . . And if [the parties] want to proceed without an attorney, then it's their responsibility to know what the statute is. . . .

And so the court wants to be very clear that [WIS. STAT. § 767.24(1m)] (2003-04)¹ reads as follows: In an action for . . . divorce . . . I cite the statute . . . in which . . . physical placement is contested, the party seeking . . . periods of physical placement, shall file a parenting plan with the Court before any pre-trial conference. I want to emphasize before any pre-trial conference. Doesn't say a pre-trial conference or the pre-trial conference. It says any pre-trial conference. It's this Court's interpretation that the Legislature was very clear not to in any way polarize, define or limit the application of that directive so that it would compromise the rights of anybody. The Court — the Trial Court sets trial dates at scheduling conferences or pre-trial conferences. It's not uncommon for many courts not to have pre-trial conferences, they use scheduling conferences. So once again, we talk in terms of any pre-trial conference. I'm satisfied that a scheduling conference falls within a definition of quote, any pre-trial conference. Then it further says, except with cause shown, a party required to file a parenting plan under this subsection who does not timely file a parenting plan, waives the right to object to the other party's parenting plan.

So the Court initially has to see whether or not there has been compliance here.

¶ 13. The court concluded that "[w]e have blatant non-compliance by [Timothy]." The court rejected the notion...