Paternity of S.A. II, In re, 91-0565

• Decision Date: 06 November 1991
• Docket Number: No. 91-0565,91-0565
• Citation: 165 Wis.2d 530,478 N.W.2d 21
• Parties: -Appellant, v. M.E. and S.A., Respondents. Court of Appeals of Wisconsin
• Court: Wisconsin Court of Appeals

Page 21

478 N.W.2d 21

165 Wis.2d 530

In re the PATERNITY OF S.A. II.

RACINE FAMILY COURT COMMISSIONER, Petitioner-Appellant, v. M.E. and S.A., Respondents.

No. 91-0565.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 27, 1991.

Opinion Released Nov. 6, 1991.

Opinion Filed Nov. 6, 1991.

Kevin Van Kampen, Racine Family Court Com'r and William H. Honrath, Deputy Family Court Com'r, for petitioner-appellant.

Giulio Fornary, Racine, for respondent.

Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.

ANDERSON, Judge.

The Racine Family Court Commissioner (commissioner) appeals an order in which the trial court interpreted sec. 767.329, Stats., to mandate that the trial court approve a stipulated postjudgment custody transfer without inquiring into the best interests of the child. Because this court concludes that sec. 767.329 does not mandate court approval of a stipulated postjudgment custody transfer without examining the best interests of the child, we reverse and remand for further proceedings.

M.E. and S.A. are the unmarried parents of S.A. II. In November 1985, a paternity action established S.A.'s paternity, fixed support and awarded custody. The action resulted in the custody and primary physical placement of S.A. II with M.E., the child's mother. In May 1990, S.A. II began living with his father, S.A. In December 1990, pursuant to a stipulation between the parents, S.A. moved the trial court to modify the earlier judgment and transfer custody and primary physical placement of S.A. II to S.A. The trial court granted this request and ordered the previous judgment amended to reflect the parents' stipulation.

Subsequently, the commissioner moved the court to reconsider the stipulation and order because, inter alia, the order did not include information on the best interests of S.A. II and the trial court did not appoint a guardian ad litem. ¹ S.A. objected that, inter alia, sec. 767.329, Stats., mandated the court to incorporate the stipulation into the amended judgment, that sec. 767.045(1)(a)1, Stats., did not allow a guardian ad litem appointment, and that the commissioner was prohibited from intervening. The trial court appointed a guardian ad litem and stayed the proceedings for the custody investigation.

The commissioner then moved the trial court to declare sec. 767.329, Stats., unconstitutional. The commissioner claimed that the statute impeded the family court's duty to the public and to the children involved in family court matters. The commissioner also claimed that children in postjudgment custody transfer stipulations are treated differently than children in prejudgment custody stipulations. The commissioner argued that the statute violated the separation of powers doctrine and denied equal protection to children in stipulated postjudgment custody transfer.

The trial court held that sec. 767.329, Stats., is unambiguous and interpreted the statute to mandate that the trial court approve a stipulated postjudgment custody transfer. The trial court read the statute to prohibit it from examining the best interests of the child, to prohibit it from allowing the commissioner to intervene, and to prohibit it from appointing a guardian ad litem. ² The trial court found the statute constitutional. The commissioner appeals.

The central issue on appeal involves the interpretation of sec. 767.329, Stats. This presents a question of law and the reviewing court owes no deference to the trial court's conclusion. Sprague v. Sprague, 132 Wis.2d 68, 71, 389 N.W.2d 823, 824 (Ct.App.1986).

Section 767.329, Stats., reads:

If after an initial order is entered under s. 767.24, the parties agree to a modification in an order of physical placement or legal custody and file a stipulation with the court that specifies the agreed upon modification, the court shall incorporate the terms of the stipulation into a revised order of physical placement or legal custody. [Emphasis added.]

Whether a statute is mandatory is a question of statutory construction. Cross v. Soderbeck, 94 Wis.2d 331, 340, 288 N.W.2d 779, 783 (1980). The aim of statutory construction is to ascertain the legislative intent. State v. R.R.E., 162 Wis.2d 698, 707, 470 N.W.2d 283, 286 (1991). It is presumed that "shall" is mandatory when it appears in the statute unless a different construction is necessary to carry out the clear legislative intent. In re C.A.K., 154 Wis.2d 612, 621, 453 N.W.2d 897, 901 (1990). A per se rule does not govern whether "shall" is mandatory or directory. R.R.E., 162 Wis.2d at 707, 470 N.W.2d at 286. In this case, the relevant consideration in choosing the proper construction of "shall" is the consequences that would follow from the alternative interpretation. See Cross, 94 Wis.2d at 340-41, 288 N.W.2d at 783. ³

The trial court stated that it was compelled to read sec. 767.329, Stats., as unambiguous and as mandating that it approve the stipulation without examining the best interests of the child. However, if a literal construction leads to absurd, unreasonable or unjust results, a construction not subject to such infirmities will be adopted in order to carry out the legislative intent. State v. Retail Gasoline Dealers Ass'n, 256 Wis. 537, 544, 41 N.W.2d 637, 641 (1950). Thus, in an appropriate case, we can conclude that "shall" is intended to be construed as "may." See State ex rel. Werlein v. Elamore, 33 Wis.2d 288, 293-94, 147 N.W.2d 252, 255 (1967).

Here we conclude the consequences would be absurd if sec. 767.329, Stats., were read to prohibit an examination of the best interests of the child. The best interests of the child is the primary consideration in custody determinations for both divorce actions and paternity actions. See secs. 767.24(5) and 767.51(6), Stats. The public interest in promoting the best interests of the child in custody matters is always the dominant concern. Kuesel v. Kuesel, 74 Wis.2d 636, 639, 247 N.W.2d 72, 73 (1976). The best interests of the child are not always the primary concern of the parties and it is the child's welfare, not the parties' wishes, that are at stake. See Weichman v. Weichman, 50 Wis.2d 731, 736, 184 N.W.2d 882, 885 (1971). Thus, the best interests of the child transcend the parties' stipulation. Ondrasek v. Tenneson, 158 Wis.2d 690, 695, 462 N.W.2d 915, 917 (Ct.App.1990). We cannot conclude that the public's interest in the best interests of the child are no longer relevant in a postjudgment custody transfer simply because there is a stipulation.

Further, sec. 767.10, Stats., provides that the parties to a divorce may stipulate to the child's legal and physical custody prior to the judgment. The trial court's approval of the stipulation, however, is subject to an examination of the factors in sec. 767.24, Stats. ⁴ The stipulation between the parties in a divorce action is a recommendation jointly made to the court suggesting what the judgment should provide. Bliwas v. Bliwas, 47 Wis.2d 635, 638, 178 N.W.2d 35, 37 (1970). While parents may stipulate to custody, the agreement should not be approved by the court unless it insures and promotes the best interests of the children. King v. King, 25 Wis.2d 550, 555, 131 N.W.2d 357, 360 (1964). A family court is not bound to accept a stipulation; the trial court has the right to make such modifications that interests of the children may require. Bliwas, 47 Wis.2d at 639, 178 N.W.2d at 37. If the stipulation is inadequate, the court could undoubtedly provide its own equitable provisions. Schmitz v. Schmitz, 70 Wis.2d 882, 886, 236 N.W.2d 657, 660 (1975). We cannot conclude that stipulations in postjudgment custody transfers should limit the trial court's powers any more than stipulations in prejudgment proceedings. ⁵

In construing a statute, related sections are considered in its construction or interpretation. State v. Clausen, 105 Wis.2d 231, 244, 313 N.W.2d 819, 825 (1982). Section 767.01(1), Stats., states that the trial court has "authority to do all acts and things necessary and proper...." This discretion would be partially nullified if sec. 767.329 were read as mandatory for postjudgment custody transfers. A mandatory reading would reduce the trial court to a rubber-stamping role. The Wisconsin Supreme Court recently stated that:

[A]s a family court, the trial court represents the interests of society in promoting the stability and best interests of the family. It is [the trial court's] task to determine what provisions and terms would best guarantee an opportunity for the children involved to grow to mature and responsible citizens, regardless of the desires of the respective parties. This power, vested in the family court, reflects a recognition that children involved in [an action affecting the family] are always disadvantaged parties and that the law must take affirmative steps to protect their welfare.

Abitz v. Abitz, 155 Wis.2d 161, 177, 455 N.W.2d 609, 616 (1990) (quoting Kritzik v. Kritzik, 21 Wis.2d 442, 448, 124 N.W.2d 581, 585 (1963)). Therefore, we cannot conclude that the legislature intended sec. 767.329 to limit the trial court's authority to rubber-stamping.

Furthermore, under sec. 767.11(12)(a), Stats., the trial court has the discretion to refuse to accept a stipulation reached by mediation or the help of professionals. It would be inconsistent to prohibit the trial court from reviewing or refusing a stipulation not reached by mediation or the help of professionals. This result is clearly contrary to the legislature's concern in ch. 767, Stats., to consider the best interests of the child.

Additionally, the effect of a strict reading would allow the parties involved in a custody transfer to usurp the trial court's judgment. For example, in an initial custody determination, the trial court must examine the best interests of the child. Sections 767.24(5) and 767.51(6), Stats. If mediation is involved, the trial court may approve or reject the parties' agreement based on the...