Visitation of Z.E.R., In re, No. 98-0819

CourtCourt of Appeals of Wisconsin
Writing for the CourtDYKMAN
Citation593 N.W.2d 840,225 Wis.2d 628
PartiesIn the Matter of the VISITATION OF Z.E.R. F.R., Petitioner-Respondent, v. T.B., Respondent-Appellant.
Decision Date11 March 1999
Docket NumberNo. 98-0819

Page 840

593 N.W.2d 840
225 Wis.2d 628
In the Matter of the VISITATION OF Z.E.R.
F.R., Petitioner-Respondent,
v.
T.B., Respondent-Appellant.
No. 98-0819.
Court of Appeals of Wisconsin.
Submitted on Briefs Jan. 12, 1999.
Opinion Released March 11, 1999.
Opinion Filed March 11, 1999.

Page 842

On behalf of the respondent-appellant, the cause was submitted on the briefs of Michael J. Briggs of Briggs Law Office of Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Judith Sperling Newton and Laura Skilton Verhoff of Stafford, Rosenbaum, Rieser & Hansen of Madison.

Before DYKMAN, P.J., EICH and DEININGER, JJ.

DYKMAN, J.

T.B. appeals from several orders surrounding the trial court's decision to grant his son's maternal grandmother, F.R., visitation privileges under § 880.155, STATS. 1 He argues that the trial court exceeded its authority under the statute and the U.S. Constitution when it issued the order. In addition, he contends that the trial court erred when it ordered him to pay a portion of an expert witness's fees. We disagree with these assertions. Finally, T.B. contends that the trial court exceeded its statutory authority under § 880.155 when it ordered him to obtain psychotherapeutic treatment for his son. We agree. Accordingly, we affirm in part and reverse in part.

BACKGROUND

T.B. is the father of Z.E.R., who was born December 24, 1989. C.R. was Z.E.R.'s mother. C.R. and T.B. were never married, but they lived together until August 1992, when F.R. and Z.E.R. moved out. T.B. was adjudicated Z.E.R.'s father in February 1993. During those proceedings, the trial court appointed Marlene Porter to act as Z.E.R.'s guardian ad litem.

From August 1992 until August 1994, C.R.'s mother, F.R., assisted with Z.E.R.'s upbringing. F.R. sometimes lived with Z.E.R., other times she would live nearby, but she was always available to care for Z.E.R., and did so extensively. During this period, Z.E.R. spent approximately five days a week with C.R. and F.R., and two days a week with T.B..

In October 1993, C.R. petitioned for sole custody of Z.E.R. The matter was referred to the Dane County family court counseling service, and Eileen Breitweiser was the appointed family court counselor. In August 1994, C.R. died. While her petition was never heard, the family court counseling service's recommendation was for joint legal custody, and for Z.E.R. to spend seventy percent of his time with F.R. and thirty percent of his time with T.B.

In September 1994, with the assistance of Marlene Porter and Eileen Breitweiser, T.B. and F.R. were able to work out a visitation schedule that would allow Z.E.R. to live with T.B. and still have regular visitation with F.R. F.R. alleges that approximately nine months after the schedule had been in place, T.B. began changing the dates and the times when Z.E.R. could visit with her, and stated that he would not allow Z.E.R. to have any more overnight or weekend visits with her.

Page 843

T.B. then allegedly informed F.R. that she could no longer see Z.E.R. or speak to him on the phone, and that she could only see Z.E.R. at T.B.'s convenience. T.B. disputes these allegations, and states that he never denied F.R. reasonable visitation with Z.E.R.

In August 1995, F.R. petitioned the trial court for a visitation order under § 880.155, STATS., to incorporate the schedule that had been in effect since September 1994. On September 6, 1995, the court entered a temporary order for visitation. On July 26, 1996, F.R. requested that the case be referred to the Dane County family court counseling service for a study, and for Eileen Breitweiser to continue to act as the family court counselor. On April 9, 1997, the temporary order was amended based on the joint recommendation of Eileen Breitweiser and Marlene Porter, who the court re-appointed to act as Z.E.R.'s guardian ad litem.

The April 9 temporary order modified the prior visitation schedule. Under this amended order, F.R. was allowed visitation with Z.E.R. every other weekend from 3:00 p.m. on Friday until 6:00 p.m. on Sunday, and every Monday from 2:00 p.m. until T.B. returned from work, and she was entitled to spend two weeks of vacation a year with Z.E.R. In addition, the order required T.B. to disclose to F.R. the names of all of Z.E.R.'s treating medical care providers, and to sign releases allowing each medical care provider to give her access to information regarding Z.E.R.'s medical condition and treatment. F.R., however, was not allowed to make medical care decisions for Z.E.R., and she was ordered to always follow the physician's proscribed treatment. Also, F.R. was allowed to participate in Z.E.R.'s non-academic school activities, which were recreational and/or social in nature, but she was not allowed to make any educational decisions for Z.E.R.

On April 18, 1997, the trial court appointed Dr. Michael Spierer, a psychologist, to interview and evaluate F.R. and T.B. The court ordered F.R. and T.B. to each pay one-half of the costs associated with these interviews and evaluations. Dr. Spierer conducted these evaluations, filed a report, and testified as to his opinions and conclusions.

The temporary order was amended again on October 2, 1997, and the trial was postponed until January 23, 1998. In the interim, the court again modified the temporary order. The amended order stated that F.R. was allowed visitation with Z.E.R. every other weekend from 2:00 p.m. on Friday until 8:00 a.m. on Monday, and every week from 3:00 p.m. on Monday until 8:00 a.m. on Tuesday. Z.E.R. was also allowed to have additional visitation with F.R. during any period of time when he was not in school, in an organized activity, or with his father. These periods of visitation were to include individual days off from school, school vacations, summer breaks, and after school on school days. During summer breaks, Z.E.R. was to be enrolled in a structured camp or activity during the day, if possible. During any period of time in which Z.E.R. was not participating in a structured activity or with his father, he was to be with F.R.

On March 6, 1998, the trial court entered yet another order regarding visitation. This order incorporated many of the terms and conditions set out in previous orders with certain exceptions. The order stated the T.B. would have priority over F.R. whenever he was off work, except during F.R.'s regular weekend visitation period. The order also allowed Z.E.R. to have additional visitation with F.R. every Monday, Wednesday and Friday when he was not in school, in an organized activity, or with his father. It also provided T.B. with the opportunity to structure Z.E.R.'s after-school activities on Tuesdays and Thursdays; however, if he failed to specify a scheduled activity, Z.E.R. would be with F.R.

The order also stated that T.B. was to select an appropriate psychotherapist for Z.E.R. Marlene Porter, Z.E.R.'s guardian ad litem, was permitted to meet with the therapist and share information relevant to Z.E.R.'s treatment, including, but not limited to, Dr. Spierer's evaluation, Ms. Breitweiser's court report, and Z.E.R.'s school journal. T.B. and F.R. also were required to participate in Z.E.R.'s therapy if requested to do so by the therapist. 2 T.B. appeals from these orders.

Page 844

STANDARD OF REVIEW

This case presents several novel issues. The majority of the issues concern the scope of a trial court's authority to grant visitation privileges to a grandparent under § 880.155(2), STATS. The pertinent portion of this statute reads as follows:

If one or both parents of a minor child are deceased and the child is in the custody of the surviving parent or any other person, a grandparent or stepparent of the child may petition for visitation privileges with respect to the child, whether or not the person with custody is married. The grandparent or stepparent may file the petition in a guardianship or temporary guardianship proceeding under this chapter that affects the minor child or may file the petition to commence an independent action under this chapter. The court may grant reasonable visitation privileges to the grandparent or stepparent if the surviving parent or other person who has custody of the child has notice of the hearing and if the court determines that visitation is in the best interest of the child.

Section 880.155(2), STATS. (emphasis added).

We have held in other contexts that the determination of a child's best interests depends on firsthand observation and experience with the persons involved, and therefore, it is left to the discretion of the trial court. See Gerald O. v. Cindy R., 203 Wis.2d 148, 152, 551 N.W.2d 855, 857 (Ct.App.1996) (termination of parental rights); Andrew J.N. v. Wendy L.D., 174 Wis.2d 745, 765-66, 498 N.W.2d 235, 241 (1993) (modification of custody and placement arrangement). We will affirm a trial court's discretionary determination so long as it examines the relevant facts, applies the proper legal standard, and uses a demonstrated rational process to reach a conclusion that a reasonable judge could reach. See Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175, 184 (1982). However, when the contention is that the trial court erroneously exercised its discretion because it applied an incorrect legal standard, we review that issue de novo. See Kerkvliet v. Kerkvliet, 166 Wis.2d 930, 939, 480 N.W.2d 823, 826 (Ct.App.1992).

DISCUSSION

I. Visitation Order

T.B. alleges that the trial court made numerous errors regarding its visitation order. First, he contends that the trial court erred as a matter of law when it applied a broad "best interests of the child" standard. Second, he argues that the trial court exceeded its authority under § 880.155, STATS., when it granted F.R. "unreasonable" visitation privileges. Third, he contends that the trial court erred when it appointed a guardian ad litem, required the parties to cooperate with the family...

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    ...appropriate standard for determining the 'best interests of the child'" in the ch. 880 guardianship statute at issue there. F.R. v. T.B., 225 Wis.2d 628, 642, 593 N.W.2d 840 (Ct. App. 1999). "When lawmakers knowingly use the same phrase or terminology in two different statutes addressing si......
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22 cases
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    • United States
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    ...similar topics, it is a strong indication that “the legislature intended them to have the same meaning in both statutes.” F.R. v. T.B., 225 Wis.2d 628, 639, 593 N.W.2d 840 (Ct.App.1999). Thus, we conclude that the question before us is whether the facts found by the circuit court provided t......
  • Phelps v. Physicians Ins. Co., No. 03-0580.
    • United States
    • Wisconsin Court of Appeals
    • April 27, 2004
    ...when it either ignores the governing law or misapprehends it, and our analysis of what the law requires is de novo. F.R. v. T.B., 225 Wis. 2d 628, 637, 593 N.W.2d 840, 844 (Ct. App. 1999). The focus of WIS. STAT. RULE 801.15(2)(a) is "excusable neglect." Once "excusable neglect" is found, t......
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    ...and will not be reversed if the circuit court made a reasonable decision based on the pertinent facts and applicable law. F.R. v. T.B., 225 Wis.2d 628, 649, 593 N.W.2d 840 (Ct.App.1999).1. Lost Profits ¶ 27 First, Renschler argues that the court erred in precluding it from seeking damages f......
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    ...appropriate standard for determining the 'best interests of the child'" in the ch. 880 guardianship statute at issue there. F.R. v. T.B., 225 Wis.2d 628, 642, 593 N.W.2d 840 (Ct. App. 1999). "When lawmakers knowingly use the same phrase or terminology in two different statutes addressing si......
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