Landwehr v. Landwehr, 2003AP2555.
| Decision Date | 06 June 2006 |
| Docket Number | No. 2003AP2555.,2003AP2555. |
| Parties | In re the Marriage of Michael J. LANDWEHR, Petitioner-Appellant-Petitioner, v. Bernadette N. LANDWEHR, Respondent-Respondent. |
| Court | Wisconsin Supreme Court |
For the petitioner-appellant-petitioner there were briefs by Rex R. Anderegg and Anderegg & Mutschler, LLP, Milwaukee, and oral argument by Rex R. Anderegg.
For the respondent-respondent there was a brief by Bruce C. O'Neill, Diane Slomowitz, and Fox, O'Neill & Shannon, S.C., Milwaukee, and oral argument by Bruce C. O'Neill.
Michael Landwehr seeks review of an unpublished decision by the court of appeals affirming a decision of the Milwaukee County Circuit Court, the Honorable William Sosnay, that modified the physical placement schedule of his two children. The circuit court granted the modification for summer placement, but denied Michael's motion to modify physical placement during the school year. The court of appeals affirmed the circuit court's placement decision. Landwehr v. Landwehr, 279 Wis.2d 516, 693 N.W.2d 146 (2005).1
¶ 2 Michael Landwehr asks this court to find that under the particular facts of this case, the maximization language in Wis. Stat. § 767.24(4)(a)2. (2003-04)2 mandates equal placement, and therefore requires reversal of the circuit court's placement decision for the school year. We disagree.
¶ 3 We conclude that Wis. Stat. § 767.24(4)(a)2. does not require a court to grant each parent equal placement if the court determines that the placement should be modified. We conclude, therefore, that in making modification determinations, the Wisconsin Statutes direct the circuit court to maximize the amount of time a child spends with his or her parents within an overall placement schedule, taking into account the best interests of the child, the presumption of the status quo under Wis. Stat. § 767.325(1) and (2), the general factors listed in Wis. Stat. § 767.24, and the particular factors listed under § 767.24(5)(am) when relevant to the child. Finally, because we determine that the circuit court properly exercised its discretion in retaining the existing school year placement and increasing the children's placement with Michael during the summer months, we affirm the court of appeals.
¶ 4 The relevant facts are as follows. Michael and Bernadette were divorced on June 20, 2000. They had two children, born in May 1993 and January 1997. The children's placement schedule, established in the Marital Settlement Agreement, was based on the particular schedules of Michael and Bernadette at the time of their divorce.3 Under the Marital Settlement Agreement, Michael and Bernadette agreed that the children's primary placement would be with Bernadette, with Michael having placement on Wednesday evenings, Thursday overnights, and every other weekend.
¶ 5 Shortly after the divorce, Michael stopped working at his then-existing place of employment, the Menasha Corporation, and started his own business, PackX, which became a competitor of Menasha Corporation. Michael's self-employment allowed him to work more flexible hours. Michael also moved within a few minutes of his children's school and the home where his children lived with Bernadette.
¶ 6 On June 24, 2002, Michael petitioned the court to reduce his child support payments4 and to modify the physical placement schedule. Michael sought equal placement of his children based on his reduced hours and the fact that he moved closer to the children and their school. The Family Court Commissioner certified the placement issue to the trial court on September 25, 2002. The circuit court heard testimony regarding the children's placement on February 24, 2003, and July 2, 2003. On July 11, 2003, the circuit court increased Michael's placement by ten nights in the summer, but kept the same placement schedule for the school year.5 Michael appealed the trial court's order. The court of appeals affirmed the placement decision, concluding that Wis. Stat. § 767.24(4)(a)2. does not require, nor presume, equal placement. This court accepted review.
¶ 7 This case presents questions regarding the application of the Wisconsin Statutes to a parent's request for modification of the children's placement schedule. We give deference to the circuit court's decisions regarding the modification of placement under an erroneous exercise of discretion standard of review, Andrew J.N. v. Wendy L. D., 174 Wis.2d 745, 764, 498 N.W.2d 235 (1993),6 and affirm the circuit court's decisions when the court applies the correct legal standard and reaches a reasonable result. Id. at 766, 498 N.W.2d 235; Hughes v. Hughes, 223 Wis.2d 111, 119-20, 588 N.W.2d 346 (Ct.App.1998).
¶ 8 Whether the circuit court has applied the correct legal standard is a question of law reviewed de novo. J.A.L. v. State, 162 Wis.2d 940, 962, 471 N.W.2d 493 (1991) (citation omitted). See also Kenyon v. Kenyon, 2004 WI 147, ¶ 11, 277 Wis.2d 47, 690 N.W.2d 251; State v. Stenklyft, 2005 WI 71, ¶ 7, 281 Wis.2d 484, 697 N.W.2d 769 (citation omitted).
¶ 9 This case presents a question of statutory interpretation, which we review de novo. State v. Reed, 2005 WI 53, ¶ 13, 280 Wis.2d 68, 695 N.W.2d 315. The purpose of statutory interpretation is to give the statute its full, proper, and intended effect. Id. (citations omitted). We begin with the statute's language because it is assumed that the legislature's intent is expressed in the words it used. State ex rel. Kalal v. Dane County Circuit Court, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. We refrain from interpreting statutory language in isolation and interpret the language in the context in which it is used in order to avoid absurd or unreasonable results. Id., ¶ 46, 681 N.W.2d 110. In addition, when the plain wording of a statute unambiguously evinces the legislative intent, this court may examine the legislative history to support our reading of the plain meaning of the statute. Wis. Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶ 8, 270 Wis.2d 318, 677 N.W.2d 612 (citations omitted).
¶ 10 This case compels us to clarify the statutory requirements imposed upon a circuit court in modifying a custody placement order. Michael Landwehr asks this court to find that when both parents are available, willing, and able to accommodate equal placement, and when the parents are located near each other, Wis. Stat. § 767.24(4)(a)2. mandates equal placement because a child's time with his or her parents cannot otherwise be "maximized."
¶ 11 Although this court has not previously examined the meaning of Wis. Stat. § 767.24(4)(a)2., various published court of appeals decisions have concluded that this statute does not require equal placement. Keller v. Keller, 2002 WI App 161, ¶ 12, 256 Wis.2d 401, 647 N.W.2d 426; Lofthus v. Lofthus, 2004 WI App 65, ¶ 14, 270 Wis.2d 515, 678 N.W.2d 393; Arnold v. Arnold, 2004 WI App 62, ¶ 11, 270 Wis.2d 705, 679 N.W.2d 296. We agree with these conclusions. Our analysis of the plain meaning of Wis. Stat. §§ 767.325 and 767.24(4)(a)2., supported by the statute's legislative history, reveals that the legislature did not intend the term "maximizing" to mean equal placement or equal time.
¶ 12 This case involves a parent's request to substantially modify an existing placement order that has been in effect for at least two years. Prior to substantially modifying any such placement order, the moving party must show that there has been "a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement," and the circuit court must take into account whether the current or future custodial conditions and physical placement are in the child's best interest. Wis. Stat. § 767.325(1)(b)1.a and b.7 See also Greene v. Hahn, 2004 WI App 214, ¶ 22, 277 Wis.2d 473, 689 N.W.2d 657. In this analysis there exists a rebuttable presumption that the status quo is in the best interest of the child. Wis. Stat. § 767.325(1)(b)2. When the initial order granted greater placement with one parent as compared to the other—as the circuit court ordered in this case—continuing the current allocation of decision-making authority under a legal custody order and continuing the child's physical placement with the parent with whom the child resides for the greater period of time is therefore presumed to be in the best interest of the child. Id.;8 Greene, 277 Wis.2d 473, ¶ 22, 689 N.W.2d 657.
¶ 13 If the circuit court determines that a change in placement may be appropriate, Wis. Stat. § 767.325(5m) further directs the circuit court to "make its [modification] determination in a manner consistent with § 767.24," specifically taking into account the 16 factors considered during the court's initial placement determination.9 Wis. Stat. § 767.325(5m).10
¶ 14 Michael asserts that due to the particular facts and circumstances of his situation—because he now lives a short distance from the children and the children's school and now has a flexible schedule that can accommodate more time with his children—the court should have granted him equal placement. Michael relies on Wis. Stat. § 767.325(5m), which, as stated above, instructs the circuit court to "make its [modification] determination in a manner consistent with 767.24," and the fact that Wis. Stat. § 767.24(4)(a)2. instructs the courts to maximize the time spent with each parent within the placement schedule. Section § 767.24(4)(a)2. states:
In determining the allocation of periods of physical placement, the court shall consider each case on the basis of the factors in sub. (5)(am), subject to sub. (5)(bm). The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may...
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