Jocius v. Jocius

• Decision Date: 31 March 1998
• Docket Number: No. 96-2746,96-2746
• Citation: 218 Wis.2d 103,580 N.W.2d 708
• Parties: In re the Marriage of Victoria JOCIUS (n/k/a/ Fleming), Petitioner-Respondent, v. Mark JOCIUS, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

Page 708

580 N.W.2d 708

218 Wis.2d 103

In re the Marriage of Victoria JOCIUS (n/k/a/ Fleming),

Petitioner-Respondent, v. Mark JOCIUS, Respondent-Appellant.

No. 96-2746.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 7, 1998.

Opinion Released March 31, 1998.

Opinion Filed March 31, 1998.

Appeal from a judgment ¹ of the circuit court for Milwaukee County; Dominic S. Amato, Judge.

On behalf of the respondent-appellant, the cause was submitted on the briefs of William A. Pangman of Law Offices of William A. Pangman, of Waukesha.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Julie L. Cabou, of Milwaukee.

A guardian ad litem brief was submitted by Hazel J. Washington of Washington Law Offices, of Milwaukee.

Before WEDEMEYER, P.J., and SCHUDSON and CURLEY, JJ.

CURLEY, Judge.

Mark Jocius appeals the trial court's order, following a hearing, that denied him any periods of physical placement with his three children, permanently prohibited him from petitioning for any change in physical placement rights, and changed the children's surnames to Fleming. Mark argues that the trial court's order is unconstitutional and, additionally, that the trial court lacked the statutory authority to make a prospective order and to change the children's surnames. He urges us to declare the entire order void and remand for a new hearing. We agree with Mark that the trial court exceeded its statutory authority in making a prospective physical placement order regarding the children and in changing the names of the children. We reverse these portions of the order and remand this matter to the trial court to amend the order consistent with this opinion. We decline to void the entire order as the appellant has not supplied us with a transcript of the proceedings and, without it, we are unable to ascertain whether the trial court erroneously exercised its discretion. Because of our decision, we do not address the constitutional argument.

I. BACKGROUND.

Victoria and Mark Jocius were divorced by Judge Clarence Parrish on August 30, 1990. At the time of the divorce, the trial court accepted the parties' signed marital settlement agreement. This document divided their marital property, gave sole legal custody of the three children of the marriage to Victoria, and provided Mark with periods of physical placement, stating he was entitled to "reasonable visitation upon notice." It also required Mark to pay 29% of his income as child support when he was employed. On the date of the divorce, Mark, although a prisoner at the Dodge County Correctional Institution, was present at the hearing having been produced by an order of the court. After the divorce, the record shows little activity on the case until January 1996.

On January 5, 1996, a letter purportedly written and signed by the three Jocius children, all of whom were still minors, was sent to the original trial judge, Judge Parrish. By this time, Judge Parrish had left the bench and had died. The letter was redirected to Judge Dominic Amato, who apparently had inherited Judge Parrish's calendar. Judge Amato read the letter and appointed a guardian ad litem for the children on January 19, 1996. ² Following the appointment, the guardian ad litem submitted an affidavit which served as the underpinnings for obtaining a child abuse temporary restraining order under § 813.122(4), STATS. Victoria also brought a domestic abuse temporary restraining order pursuant to § 813.12, STATS. On April 1, 1996, Judge Amato handled both injunction hearings and entered injunctions against Mark who was present, having been produced from the Brown County Jail. ³ The record also reflects that, at the same time, the trial court changed Victoria's surname from Jocius to Fleming, her maiden name, some six years after the divorce took place. ⁴

Besides litigating the child abuse action, the guardian ad litem also filed an order to show cause on March 12, 1996, asking for a complete denial of Mark's periods of physical placement with the children, claiming that "such placement would endanger the children's physical, mental and emotional health pursuant to Wis. Stats sec. 767.325(4)." Additionally, the guardian ad litem requested that the children's surnames be changed to their mother's maiden name. Later, Victoria, now represented by counsel, also filed a motion entitled "Notice of Motion and Motion to Deny Placement and Grant Name Change."

The record also reflects that, apparently in anticipation of a contested hearing pursuant to §§ 767.325 and 767.24, STATS., on April 17, 1996, the trial court appointed counsel for the respondent, citing A.S. v. State, 168 Wis.2d 995, 485 N.W.2d 52 (1992), as authority. ⁵ On June 7, 1996, following a multi-day hearing, the trial court gave an oral decision from the bench, later reduced to writing, in which it denied Mark any periods of physical placement with his children and prohibited Mark from petitioning for any change in physical placement of the children. The court's order also changed the children's surnames to Fleming. Additionally, it ordered the domestic abuse injunction converted to a permanent injunction. ⁶

II. ANALYSIS.

As stated in Koeller v. Koeller, 195 Wis.2d 660, 536 N.W.2d 2d 216 (Ct.App.1995):

Custody determinations are matters within the trial court's discretion and will be sustained on appeal where the court exercises its discretion on the basis of the law and the facts of record and employs a logical rationale in arriving at its decision. Licary v. Licary, 168 Wis.2d 686, 692, 484 N.W.2d 371, 374 (Ct.App.1992). A court erroneously exercises its discretion, however, when it bases its determination on an error of law. Id.

Because there is no common-law jurisdiction over the subject of divorce in Wisconsin, such powers that Wisconsin courts possess in this area are "entirely dependent on legislative authority." Groh v. Groh, 110 Wis.2d 117, 122, 327 N.W.2d 655, 658 (1983). And "where the legislature has set forth a plan or scheme as to the manner and limitation of the court's exercise of its jurisdiction, that expression of the legislative will must be carried out and power limitations adhered to." Id. at 123, 327 N.W.2d at 658. Thus, "[a]lthough the trial court has a broad discretion with respect to custody determinations, which will be given great weight on review, 'courts have no power in awarding custody of minor children other than that provided by statute.' " Schwantes v. Schwantes, 121 Wis.2d 607, 622, 360 N.W.2d 69, 76 (Ct.App.1984) (quoted sources omitted).

Id. at 663-64, 536 N.W.2d at 218.

Following a divorce, § 767.325, STATS., permits a trial court to modify the existing provisions governing legal custody and physical placement of the children. As pertinent here, § 767.325(1)(b) reads:

[U]pon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:

a. The modification is in the best interest of the child.

b. There has been a substantial change of circumstance since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.

A hearing brought under § 767.325, STATS., asking for a change in the physical placement of a child, requires the trial court to utilize the factors set forth in § 767.24(4), STATS., in deciding the appropriate amount of time the non-custodial parent has physical placement. ⁷ The statute starts with the presumption that both parents will have what was formerly known as visitation, and is now known as periods of physical placement. Additionally, both §§ 767.325(4) and 767.24(4)(b), STATS., anticipate and authorize a complete denial of physical placement, but only when the court is satisfied that physical placement will threaten a child's physical, mental, or emotional health. Section 767.325(4) reads:

DENIAL OF PHYSICAL PLACEMENT. Upon petition, motion or order to show cause by a party or on its own motion, a court may deny a parent's physical placement rights at any time if it finds that the physical placement rights would endanger the child's physical, mental or emotional health.

Section 767.24(4)(b), STATS., reads:

A child is entitled to periods of physical placement with both parents unless, after a hearing, the court finds that physical placement with a parent would endanger the child's physical, mental or emotional health.

Mark concedes that the trial court could deny him physical placement of the children. Mark argues, though, that the trial court so exceeded its authority and "stacked the deck" against him that the entire order is suspect and should be overturned. The trial court's order reads: "[T]hat all dynamics of the relationship of parent Mr. Jocius with his children Matthew and Jennifer, is permanently limited to the financial responsibility to support these children." With respect to the third child, the trial court order reads:

[A]ll the dynamics of the relationship of parent Mark Jocius and Bryan Jocius is indefinitely limited to the financial responsibility to support that child. Mr. Mark Jocius is barred from asking this Court for any relief as it relates to that child, save for the responsibility that Mr. Jocius has to provide economic support.

These orders were based on the trial court's finding, which states:

It is clear from the evidence that Mark Jocius has been, ever since the birth of the first child, a non-parent. Mr. Jocius is a detriment to the minor children. Mr. Jocius has done really nothing in the best interests of the children. Mr. Jocius is not a fit and proper parent.

This finding, based on the testimony of one of the expert witnesses, is sufficient to invoke § 767.24(4)(b), STATS. However, in addition to denying Mark physical placement of his children, ...