Stella M. v. Daniel T.-W., s. 97-0021

CourtCourt of Appeals of Wisconsin
Citation214 Wis.2d 591,571 N.W.2d 924
Docket Number97-0022,Nos. 97-0021,s. 97-0021
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STELLA M., Plaintiff-Respondent, v. DANIEL T.-W., Respondent-Appellant.
Decision Date16 October 1997

Page 924

571 N.W.2d 924
214 Wis.2d 591
NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.
STELLA M., Plaintiff-Respondent,
v.
DANIEL T.-W., Respondent-Appellant.
Nos. 97-0021, 97-0022.
Court of Appeals of Wisconsin.
Oct. 16, 1997.

APPEAL FROM ORDERS OF THE CIRCUIT COURT FOR SAUK COUNTY: VIRGINIA A. WOLFE, JUDGE. REVERSED.

Before VERGERONT, ROGGENSACK and DEININGER, JJ.

ROGGENSACK, Judge.

Daniel T.-W. appeals two child abuse injunctions ordering him to refrain from contact with his young son, Alexander W., and Michael M., the teenage son of his former live-in girlfriend, Stella M., who is also Alexander's mother, for a period of two years. Daniel contends that evidence that he spanked Alexander until the child's buttocks were red after the child refused to get dressed to go to daycare, and that he yelled profanities at Michael for refusing to clean his room until the teenager closed the door of his room and ultimately left the house, was insufficient to constitute abuse of either child within the meaning of the child abuse injunction statute. We conclude that (1) Daniel's spanking of his son was not "physical injury" under the facts of this case, and (2) Stella failed to prove that Daniel's yelling at Michael caused "emotional damage" because there was no evidence that Michael suffered emotional damage described by the statute. Accordingly, we reverse the orders of the circuit court.

BACKGROUND

Daniel and Stella resided together in Daniel's two-bedroom apartment with their two-year-old son, Alexander, and Stella's sixteen-year-old son, Michael, from a previous marriage. Daniel's son, Billy, from a previous marriage also stayed at the apartment for certain periods of visitation. Michael had his own room, and Alexander slept in the living room. Due to tight financial circumstances, Daniel did not have long-distance telephone services, and he was behind on utility bills.

Sometime in November of 1996, when Stella was away from the apartment, Alexander was kicking and refusing to cooperate as Daniel attempted to get him ready for daycare in the morning before work. Daniel turned Alexander over his knee and administered a bare-handed spanking on Alexander's bare buttocks. The slaps from the spanking awoke Michael, who arose from bed to see what was happening. Michael observed Alexander crying as Daniel spanked him several times. Michael then returned to his room, and Alexander settled down and got dressed. That evening when Stella returned home, she noticed that Alexander's buttocks were red as she changed his diaper. The redness had disappeared by the following evening.

On December 1 or 2, 1996, Stella was again out of the apartment, when Daniel and Michael had a verbal altercation. At trial, Daniel said he was upset with Michael for three reasons: (1) because Michael had turned the thermostat up when he knew that the heat bill hadn't been paid; (2) because Michael refused to keep his room clean; and (3) because Michael had incurred substantial extended service charges on Daniel's telephone bill. According to Michael, shortly after Daniel came home with Alexander and Billy, around 8:30 p.m., he came into Michael's room and yelled at him for setting the thermostat at 70 degrees. Michael didn't respond. About fifteen minutes later, Daniel came into the room again, pounded on the door and told Michael to clean his room or leave. Michael then closed the door to his room, but Daniel kicked it and told him to leave the door open and clean his room, or to get out. Michael said that Daniel was "out of control," hollering profanities at him within the hearing of the two younger boys, and that he was afraid, having seen Daniel hit both his mother and his brother on prior occasions. Eventually, Michael called a friend, whose grandfather came to get him. Michael then called his mother from the friend's house.

Meanwhile, Stella had called home and heard Daniel's version of the incident. Stella called Billy's mother to come and pick up Billy, and Billy's mother in turn called the police. By the time Stella arrived home at 10:30 or 11:00 p.m., Daniel was sitting on the front porch blocking the door with his feet, "waiting for the next batch of cops." When Stella got Alexander out of bed, she noticed that he was uncharacteristically jumpy and afraid. Stella picked up clothes for the boys, and did not return to the apartment after that night.

On December 3, 1996, Stella filed a petition for a temporary restraining order and child abuse injunctions against Daniel, alleging physical and emotional abuse to the boys. The circuit court heard evidence on the petition on December 9, 1996, and issued the injunctions on the grounds that Daniel had physically abused Alexander and emotionally abused Michael. Daniel challenges both injunctions on appeal. Alternatively, if the injunctions are upheld, he argues that the matter should be remanded for a determination of his visitation rights to Alexander under § 813.122(5), Stats.

DISCUSSION

Standard of Review.

The determination of whether proper grounds exist for the issuance of a child abuse injunction is a mixed question of fact and law. M.Q. v. Z.Q., 152 Wis.2d 701, 708, 449 N.W.2d 75, 78 (Ct.App.1989) (Interest of H.Q.). We will not set aside the findings of the circuit court unless they are clearly erroneous. Section 805.17(2), Stats. However, we will draw an independent conclusion as to whether the established facts fulfill the legal standards for physical or emotional abuse. Interest of H.Q., 152 Wis.2d at 708, 449 N.W.2d at...

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