Long v. Long, 84-1667

• Decision Date: 11 February 1986
• Docket Number: No. 84-1667,84-1667
• Citation: 127 Wis.2d 521,381 N.W.2d 350
• Parties: In re the Marriage of James E. LONG, Petitioner-Respondent, v. Kathleen A. LONG, Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 350

381 N.W.2d 350

127 Wis.2d 521

In re the Marriage of James E. LONG, Petitioner-Respondent, v. Kathleen A. LONG, Respondent-Appellant-Petitioner.

No. 84-1667.

Supreme Court of Wisconsin.

Argued Sept. 30, 1985.

Decided Feb. 11, 1986.

William J. Campbell, argued, for respondent-appellant-petitioner; Law Offices of William J. Campbell, Menomonee Falls, on brief.

William E. Ryan, argued, for petitioner-respondent; George N. Kotsonis, Law Offices of Chronus and Kotsonis, Milwaukee, on brief.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of an unpublished decision of the court of appeals filed March 7, 1985, summarily affirming an order of the circuit court for Washington county, J. Tom Merriam, circuit judge. The circuit court denied Kathleen Long, the custodial parent, permission to remove the parties' two minor children from the State of Wisconsin. Because we conclude that the circuit court abused its discretion by erroneously interpreting sec. 767.245(6), Stats.1983-84, the removal statute, we vacate the order of the circuit court. We reverse the decision of the court of appeals and remand the case to the circuit court with directions to enter an order granting Kathleen Long permission to remove the children from the state and modifying the visitation arrangement as necessary. ¹

This removal case stems from the divorce of Kathleen Long and James Long. The divorce judgment effective as of December 19, 1983, awarded Kathleen Long custody of the parties' two minor sons and granted James Long reasonable rights of visitation. At the time of the divorce, both parties lived in Washington county.

In February 1984, Kathleen Long filed a motion seeking permission to remove the two children from Washington county to Peoria, Illinois, and requesting modification of the visitation arrangement. In an affidavit to support her motion, Kathleen Long stated that she had been laid off permanently from her Wisconsin job on January 6, 1984, that she was unemployed, that she believed she could get a job near Peoria, and that she would "do all in her power to see that the children continue[d] a good and building relationship with their father." James Long filed a motion objecting to the removal of the children from the state because it would decrease his visitation with the children, thereby frustrating his ability to help raise and nurture his children. ² James Long also requested the court to transfer custody of the children to him.

The circuit court heard both motions on June 22, 1984. It denied the motion to change custody, concluding that James Long had not met the test for a change of custody as set out in Gould v. Gould, 116 Wis.2d 493, 500, 342 N.W.2d 426 (1984). James Long did not appeal the circuit court's custody decision. In a memorandum decision dated June 28, 1984, and an order dated July 30, 1984, the circuit court also denied Kathleen Long's motion for permission to remove the children. The circuit court stated that the burden was on Kathleen Long "to satisfy the Court that the children's best interests would not be impaired by their removal from the State under the circumstance[s] in this case." In deciding the case the circuit court "concluded that the removal from the State ... is not in the best interest of the children and that that interest must take priority over their mother's reasons supporting her request...."

Kathleen Long appealed the order, arguing that the circuit court had applied the wrong legal standard. The court of appeals summarily affirmed the circuit court's order, holding that the circuit court "correctly stated that Kathleen [Long] had to demonstrate that the best interests of the children would not be impaired by their removal from Wisconsin." The court of appeals then concluded that the circuit court's determination that the children's removal was inconsistent with their best interests was a reasonable exercise of its discretion.

A removal determination, like a custody determination, is committed to the sound discretion of the circuit court. Discretionary determinations do not, however, lie beyond meaningful appellate scrutiny. An appellate court will find an abuse of discretion when, for example, the circuit court exercises its discretion on the basis of an error of law. Gould v. Gould, supra, 116 Wis.2d at 497-98, 342 N.W.2d 426.

The issue in this case is whether the circuit court erred in its interpretation of sec. 767.245(6), Stats.1983-84, the statute governing removal in this case. ³ Questions of statutory interpretation are questions of law, and this court need not defer to the circuit court's interpretation of the statute.

Sec. 767.245(6), Stats.1983-84, requires the custodial parent to notify the parent having visitation rights of the custodial parent's intention to establish legal residence outside the state. If the parent having visitation rights objects, the circuit court may deny the custodial parent permission to remove if it finds that the proposed removal is against the best interests of the child. Sec. 767.245(6), Stats.1983-84, provides as follows:

"Whenever the court grants visitation rights to a parent, it shall order the child's custodian to provide to the parent having visitation rights 60 days' notice of the custodian's intention to establish legal residence outside this state or to remove the child from this state for a period of time exceeding 90 days. Upon motion by the parent having visitation rights and a finding by the court that it is against the best interests of the child for the custodian to so remove the child from this state, the court may deny permission to the custodian. Violation of a court order under this subsection may be deemed a change of circumstances under s. 767.32, allowing the court to modify the judgment with respect to custody, child support and visitation rights so as to permit withholding of a portion of the support payments to defray the added expense to the parent with visitation rights of exercising such rights or to modify a custody order." (Emphasis added.)

Without citing any statutory authority, the circuit court concluded that the burden of persuasion was on Kathleen Long "to satisfy the Court that the children's best interests would not be impaired by their removal from the State under the circumstance[s] in this case."

In requiring Kathleen Long to meet this burden of persuasion, ⁴ the circuit court appears to have applied the pre-1984 version of sec. 767.245(6). The pre-1984 version of sec. 767.245(6) required the custodial parent to obtain either court approval for removal or the written permission of the parent with visitation rights. Sec. 767.245(6), Stats.1981-82, which was enacted in 1977, provided as follows:

"Whenever the court grants visitation rights to a parent, it shall order the child's custodian to obtain written approval of the parent having visitation rights or permission of the court in order to establish legal residence outside this state or to remove the child from this state for a period of time exceeding 90 days. Such court permission may be granted only after notice to the parent having visitation rights and after opportunity for hearing. Violation of a court order under this subsection may be deemed a change of circumstances under s. 767.32, allowing the court to modify the judgment with respect to custody, child support and visitation rights so as to permit withholding of a portion of the support payments to defray the added expense to the parent with visitation rights of exercising such rights or to modify a custody order."

The 1984 statute differs from the earlier version in two important respects: (1) under the 1984 statute, the objecting parent must petition the court to obtain an order denying removal, and (2) under the 1984 statute, upon a petition from the objecting parent the circuit court, in order to deny permission to remove, must make a "finding ... that [removal] is against the best interests of the child ...." Under the earlier version the custodial parent had to seek the court's permission for removal if the noncustodial parent did not give written approval. Moreover, the earlier version set forth no test for the circuit court's use in deciding whether to grant permission to remove.

In affirming the circuit court's test for denying permission to remove, the court of appeals did not refer to either version of sec. 767.245(6) but relied on Fritschler v. Fritschler, 60 Wis.2d 283, 208 N.W.2d 336 (1973), which in turn relied on Peterson v. Peterson, 13 Wis.2d 26, 108 N.W.2d 126 (1961), and Whitman v. Whitman, 28 Wis.2d 50, 135 N.W.2d 835 (1965). This court decided these three cases before the legislature adopted a statute specifically governing removal.

In Peterson, the custodial parent petitioned the trial court to remove the child from the state. The trial court granted permission. In affirming the trial court's order, this court adopted what it believed to be the test adopted by a majority of the courts considering this issue: If the custodial parent has good reason for moving to another state and such course of action is consistent with the welfare of the child, the court will permit the removal. Peterson v. Peterson, supra, 13 Wis.2d at 28, 108 N.W.2d 126.

In Whitman also, the custodial parent petitioned the trial court for removal. This court affirmed the trial court's order granting permission and justified removal for these reasons: "the [custodial mother's] desire to move was for a proper purpose and [was] beneficial to her, ... [the proposed removal] was not detrimental to the children, and ... under the circumstances removal ... would not constitute an undue burden upon the [father] in exercising his visitation rights." Whitman v. Whitman, supra, 28 Wis.2d at 59, 135 N.W.2d 835. Dissenting in Whitman, Justice Hallows advocated a different test: A custodial parent seeking to remove a child should have the "burden of proof ... to show the...