Kristi L.M. v. Dennis E.M.

Decision Date03 July 2007
Docket NumberNo. 2005AP1034.,2005AP1034.
Citation2007 WI 85,734 N.W.2d 375
PartiesKRISTI L.M., J.K.M. and J.M., Petitioners-Respondents, v. DENNIS E.M., Respondent-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the respondent-appellant-petitioner there were briefs by Brian A. Pfitzinger and Elbert & Pfitzinger, Ltd., Juneau, and oral argument by Brian A. Pfitzinger.

For the petitioners-respondents there was a brief by Kenneth R. Sipsma, Erika L. Bierma, and Sipsma, Hahn & Brophy, L.L.C., Madison, and oral argument by Kenneth R. Sipsma.

An amicus curiae brief was filed by Zev D. Kianovsky, Assistant Corporation Counsel, on behalf of Dodge County Corporation Counsel.

¶ 1 LOUIS B. BUTLER, JR., J

Dennis E.M. seeks review of an unpublished summary disposition order of the court of appeals1 affirming a circuit court order that imposed a child abuse injunction against Dennis, restricting his contact with his two children, J.K.M. and J.M. The injunction was imposed after Dennis's wife, Kristi2 L.M., filed a petition alleging that she found bruises on the head of the couple's 11-month-old boy, J.K.M., after the child's visitation with Dennis. Kristi also alleged Dennis had made numerous statements suggesting he posed a threat to the safety of Kristi, the children and himself.

¶ 2 Following a hearing, the Dodge County Circuit Court, Honorable Richard Callaway, Reserve Judge, ordered the injunction pursuant to Wis. Stat. § 813.122(5)(a)3. (2005-06).3 Dennis appealed the decision, arguing that the circuit court erroneously exercised its discretion in granting the injunction. The court of appeals issued a summary order, reversing the circuit court's decision as to J.M. and affirming its decision as to J.K.M.4 Dennis sought review of the court of appeals' order affirming the injunction as to J.K.M.

¶ 3 We conclude that the circuit court acted within its discretion in issuing the injunction as to J.K.M. because Dennis's prior conduct, including the bruising of J.K.M., gave the circuit court reasonable grounds to believe that Dennis engaged in abuse and may engage in abuse of J.K.M. We therefore affirm the summary order of the court of appeals.

I

¶ 4 On December 13, 2004, Dennis E.M. and Kristi L.M. separated after six years of marriage. Dennis filed a petition for divorce on February 28, 2005. The couple had two minor children, J.K.M., born April 14, 2004, and J.M., born February 8, 2002. A temporary order in the divorce proceeding directed that Dennis was to have the children Monday through Friday from 7:30 a.m. to 1:00 p.m., unless he was off work, in which case placement would be from 7:30 a.m. until 5:00 p.m. Dennis also had visitation for one overnight per week and for one four-hour period of time each weekend.

¶ 5 On April 4, 2005, Kristi filed a petition for a temporary child abuse restraining order pursuant to Wis. Stat. § 813.122 alleging Dennis had inflicted physical injury on J.K.M. and had caused emotional damage to J.M. In a statement in support of the petition, Kristi averred she found bruises on J.K.M's head "consistent with fingerprints" after J.K.M. returned from a visitation with Dennis. Kristi alleged that Dennis had a "long history of mental illness." She stated that Dennis had called in December 2004 to tell her that he "had made his final goodbyes to the children and told me he wasn't coming home after work and I wouldn't see him again." She averred Dennis called her in February 2005 to tell her he was going to spend the day at the cemetery. Kristi stated she did not believe the children were safe in Dennis's care.

¶ 6 On April 8, 2005, the circuit court held a hearing on the motion. Kristi gave testimony about several incidents involving Dennis. She recounted a conversation she had with Dennis one night in early January 2005 when he called her on his way home from work:

KRISTI: He asked me if I read the article in the newspaper about what happened in Montello and I said I was not aware of it, what happened? And he said that there was a man who was served divorce papers by his wife, took himself and his 17-month-old son and killed him and himself. He became very quiet—

ATTORNEY: Was he—who's "he" now?

KRISTI: Dennis. He became very quiet, started crying and said [he could] relate to that.

¶ 7 Kristi also testified about a conversation she had with her three-year-old son, J.M.:

KRISTI: [J.M.] said, mommy, can we talk and I said yeah.... So I sat down next to him on the step and he said we're going to die and I said, [J.M.], who said that to you and who told you that and he didn't say anything. And I asked him again, [J.M.], who told you that and he said daddy. And I said, well, what else did daddy say and he said words and I told him that, um, it was okay to say what daddy said and then he said mommy's a bitch and I asked him if it was just mommy that was going to die. He said, no, mommy, [J.M.], [J.K.M.] and daddy.

¶ 8 Kristi testified that Dennis told her that one day in November 2004, he "was downstairs doing laundry and thought about hanging himself" while he was supervising the children. She said that in June 2000 Dennis "was very depressed and threatened to take an overdose of pills." She said that since she and Dennis had separated in December 2004, Dennis had tried "several times" to get himself "emergency detained."

¶ 9 In his testimony, Dennis admitted to having a history of emotional problems and depression, but disputed most of Kristi's allegations. Dennis denied telling Kristi that he thought about hanging himself while the children were in his care, and denied telling Kristi he was going to spend the day at the cemetery. He denied telling J.M. that they were all going to die. He admitted mentioning to Kristi the story of the Montello man who had killed himself and his son, but "just to see if [Kristi] had heard about it." He stated he told Kristi he'd said goodbye to the children and wasn't coming home because he was angry about a large fuel bill. Dennis said he'd talked about having himself "emergency detained" in a hospital, but his therapist at the time didn't think it was necessary.

¶ 10 Kristi also testified about an incident that occurred on March 25, 2005, while Dennis was supervising the children at his home. She said Dennis called her to say that J.K.M. had hit his head on the entertainment center. After J.K.M. was returned to Kristi's care later that day, she noticed swelling and a "fairly long mark" on the left side of the infant's head, a laceration on his forehead, a red mark on his chin, and redness on his knees and tops of his feet. Kristi discovered bruises three days later when "the swelling had gone down and you could see that there were three distinct marks on the side of his head that were round like a fingerprint." Kristi then took J.K.M. to the police department, where she was directed to take him to the hospital.

¶ 11 Dr. Halim Hennes treated J.K.M. in the emergency room at Children's Hospital in Milwaukee, and testified about his examination of J.K.M. Dr. Hennes said he discovered two circular bruises on the side of J.K.M.'s head. He ordered a head CT (computed tomography) scan, the results of which were normal, and a skeletal survey, which showed no evidence of fractures. When asked to give his opinion as to the medical probability that the bruises were caused by child abuse, Dr. Hennes replied, "very minimal." Dr. Hennes later added that he "did not rule . . . out" child abuse as the cause of the bruises, but said its "likelihood" as the reason for the bruises "is small."

¶ 12 Dr. Virginia Greenbaum, Medical Director at the Child Protection Center at Children's Hospital of Wisconsin, testified about her examination of police photographs of J.K.M.'s bruises and relevant medical records. Dr. Greenbaum said the photographs showed three bruises on the left portion of J.K.M's scalp and a bruise on the right side of his forehead. She testified that the bruises were consistent with markings caused by fingers or knuckles pressing on the child's skull. Dr. Greenbaum testified the bruises were suspicious for abuse for several reasons:

A child who is not too mobile, who is a pre-cruiser, typically has no bruises at all . . . they can't get themselves into trouble, can't generate that much force and can't move fast. Once in a while you see one bruise or perhaps two but to see four . . . is somewhat unusual and it's very unusual to see them clustered in one area over the scalp with absolutely no explanation from the caretaker.

....

I asked the mother about [J.K.M. falling against] the entertainment center. . . . I would expect that the child is—would have to either be crawling into it or standing and then fall and bump against it, either, which it's a very minor trauma, very low velocity. At most, I would expect to see a single bruise, probably on the forehead. . . . Certainly you wouldn't expect to see a cluster of three individual bruises. . . .

Dr. Greenbaum testified that, based on her training and experience, she suspected the bruises were caused by abuse. However, she said she could not determine who caused the bruises, nor could she say whether the bruises occurred at the same time.

¶ 13 Dennis denied grabbing J.K.M. by the head, and stated that he believed his hands were too small to fit around J.K.M.'s head to cause the child's bruises. He testified that J.K.M. received the bruises by falling and striking his head on the door of the entertainment center while reaching for some toy blocks.

¶ 14 Dr. Michael Haight, a psychologist Dennis had been seeing for about four months, also testified at the hearing. He stated Dennis had been diagnosed with major depressive disorder and had been hospitalized in 2000 or 2001. He reported that Dennis was still somewhat depressed but had improved since January 2005. Dr. Haight said Dennis told him that he was taking his medication. He said Dennis had reported that he had been suicidal at...

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