Van Cleve v. Hemminger, 87-0091

Citation415 N.W.2d 571,141 Wis.2d 543
Decision Date22 September 1987
Docket NumberNo. 87-0091,87-0091
PartiesMary VAN CLEVE, Petitioner-Appellant, v. Linda and Kurt HEMMINGER, Respondents.
CourtCourt of Appeals of Wisconsin

Review Denied.

Lawrence G. Vesely, of Olson, Kulkoski, Galloway, Olson & McKloskey, S.C., Green Bay, for petitioner-appellant.

Gene M. Potack, Menominee, Mich., for respondents.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

This is an appeal from an order dismissing Mary Van Cleve's petition requesting the court to order visitation privileges with her grandchildren. Van Cleve alleges that sec. 767.245(4), Stats., empowers the court to entertain a grandparent's petition for visitation where no action affecting the family has previously been filed. We conclude that sec. 767.245(4) applies only to situations involving a previously filed action affecting the family. We affirm the trial court's dismissal of Van Cleve's petition.

For the purposes of this opinion we assume the following facts alleged in Van Cleve's petition to be true. See Puttkammer v. Minth, 83 Wis.2d 686, 688, 266 N.W.2d 361, 363 (1978). Mary Van Cleve's daughter, Linda Hemminger, is married to Kurt Hemminger. The Hemmingers reside at the same address and are the parents of two children. No prior action affecting the Hemminger family has been filed. The Hemmingers refuse to allow Van Cleve to visit their children.

Van Cleve filed a petition for visitation under sec. 767.245(4) for visitation privileges with her two grandchildren. The trial court dismissed Van Cleve's petition concluding that it had no jurisdiction.

The issue on appeal is whether a grandparent has the right to visitation privileges with grandchildren under sec. 767.245(4), where no action affecting the family has been previously filed. This issue is one of statutory construction raising a question of law. Bonn v. Haubrich, 123 Wis.2d 168, 171-72, 366 N.W.2d 503, 505 (Ct.App.1985). Therefore, we owe no deference to the trial court's determination. Id.

In construing a statute, the primary source is the language of the statute itself. Arneson v. Arneson, 120 Wis.2d 236, 243, 355 N.W.2d 16, 19 (Ct.App.1984). Section 767.245(4) reads as follows:

The court may grant reasonable visitation privileges to a grandparent or greatgrandparent of any minor child upon the grandparent's or greatgrandparent's petition to the court with notice to the parties if the court determines that it is in the best interest and welfare of the child and issue any necessary order to enforce the same.

Van Cleve alleges that the language of sec. 767.245(4) grants jurisdiction to a trial court to order visitation for grandparents without regard to whether an action affecting the family has previously been filed. Van Cleve bases this argument on her literal reading of the statute and the reliance placed upon the "best interests of the child" doctrine in Wisconsin case law. Van Cleve thus urges a statutory reading that permits the state to override the decision made by parents of an intact family as to which adults will be allowed to visit their minor children.

Wisconsin has long deemed it appropriate to make determinations as to the best interests of the children when the family unit is dissolving by adjudication or death. See e.g., Marotz v. Marotz, 80 Wis.2d 477, 486, 259 N.W.2d 524, 529 (1977); In re Stillman Goodenough, 19 Wis. 291, 296 (1865); sec. 880.155, Stats. In these situations, the children's best interests are frequently compromised for reasons of spite, hostility, or economics. Weichman v. Weichman, 50 Wis.2d 731, 734-36, 184 N.W.2d 882, 884-85 (1971). However, for the reasons stated below, we conclude that the legislature did not intend to reach into intact families to override parental determinations involving visitation privileges between their children and the grandparents.

We agree that on its face a literal reading of sec. 767.245(4) does not appear to limit court jurisdiction to cases where an action affecting the family has previously been filed. However, after examining the entire statute and related statutes we conclude that sec. 767.245(4) is ambiguous.

We begin our analysis by looking at the language of the entire statute and not just one section. See Arneson, 120 Wis.2d at 243, 355 N.W.2d at 19. An ambiguity can be created by the interaction of separate sections. State v. Walker, 75 Wis.2d 93, 102, 248 N.W.2d 410, 414 (1977). Absent any statutory definition, the meaning of nontechnical words may be ascertained from a recognized dictionary. State v. Wittrock, 119 Wis.2d 664, 670, 350 N.W.2d 647, 651 (1984).

The reading of sec. 767.245(4) as proposed by Van Cleve is ambiguous because of its interaction with sec. 767.02(1)(k), Stats., and the differing definitions of "children." Section 767.02(1)(k) defines the phrase "an action affecting the family" as one "concerning visitation rights to children." This section does not refer specifically to grandparent's right to visitation and the use of the term "children" can mean children "of the immediate progency of human parents" or "any direct descendant," or "a person who has not yet come of age." Webster's Third New International Dictionary 388 (1976).

Section 767.245(4) is also ambiguous when read in conjunction with sec. 880.155. Ambiguity can be created by the interaction of two separate, but related statutes. Kaiser v. City of Mauston, 99 Wis.2d 345, 361-62, 299 N.W.2d 259, 269 (Ct.App.1980). Section 880.155, Stats., provides in part:

Visitation by grandparents. If one or both parents of a minor child is deceased and the minor is in the custody of the surviving parent or any other person, any grandparent of the minor may petition for visitation privileges with respect to the minor, whether or not the person with custody is married.

A reading of sec. 767.245(4) as urged by Van Cleve would render sec. 880.155 superfluous because sec. 767.245(4) would include all of the situations covered in sec. 880.155. We avoid an interpretation that would render a statute superfluous. State v. Wachsmuth, 73 Wis.2d 318, 324, 243 N.W.2d 410, 414 (1976).

Having determined that sec. 767.245(4) is ambiguous, we turn to an examination of the legislative history to determine the legislature's intent in creating sec. 767.245(4). See State ex rel. Klinger v. Baird, 56 Wis.2d 460, 465-66, 202 N.W.2d 31, 34 (1972). We are fortunate to have the...

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  • Interest of Z.J.H., In re
    • United States
    • Wisconsin Supreme Court
    • June 26, 1991
    ...that Sporleder did not enjoy the legal status of parent, and had no standing to exercise these rights under Van Cleve v. Hemminger, 141 Wis.2d 543, 415 N.W.2d 571 (Ct.App.1987). The circuit court also found that the agreement was void as against public policy, and that Hermes was not equita......
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    ...of a married couple. 18 Nor did the legislature use the 1988 amendment to alter a court of appeals decision, Van Cleve v. Hemminger, 141 Wis.2d 543, 415 N.W.2d 571 (Ct.App.1987), which interpreted the 1977 statute as requiring an action affecting the In 1991, the legislature added a third v......
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    • United States
    • United States State Supreme Court — District of Kentucky
    • March 12, 1992
    ...The Delaware Family Court has authority to rule on constitutional questions in that state. Wisconsin, in Van Cleve v. Hemminger, 141 Wis.2d 543, 415 N.W.2d 571 (App.1987), stated that in the absence of a dissolving family relationship there is no justifiable reason for the state to override......
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    • March 20, 1990
    ...The defendants' status as an intact family, while arguably heightening their claim to procedural due process; Van Cleve v. Hemminger, 141 Wis.2d 543, 549, 415 N.W.2d 571 (1987); cannot fill this factual vacuum. The fact that a family is intact does not guarantee the absence of child abuse. ......
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