Wiederholt v. Fischer
| Decision Date | 20 May 1992 |
| Docket Number | No. 91-2355,91-2355 |
| Citation | 169 Wis.2d 524,485 N.W.2d 442 |
| Parties | In re the Marriage of Clair WIEDERHOLT, Petitioner-Appellant, d v. Bonnie FISCHER, Respondent-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of petitioner-appellant, the cause was submitted on the briefs of Clair Wiederholt, pro se.
On behalf of respondent-respondent, the cause was submitted on the brief of James Wedemeyer of Dewane, Dewane, Kummer & Lambert of Manitowoc.
A brief was submitted by guardian ad litem Robert J. Zeman of Muchin, Muchin & Bruce, S.C. of Manitowoc.
Before BROWN, ANDERSON and SNYDER, JJ.
Clair Wiederholt and Bonnie Fischer are divorced and have three children. Clair appeals from an order denying his motion to transfer primary physical placement of the three children to him. He also appeals the portion of the order that altered the temporary placement portion of the divorce judgment and required that he contribute to Bonnie's attorney's fees. Because we conclude that the trial court did not abuse its discretion, we affirm.
At the time of the filing of the divorce in 1985, Natasha was ten; Carissa was seven; and Ruscena was six. Primary physical placement of the three children was intensely disputed during the pendency of the divorce action. Some time after the filing of the divorce action, Bonnie and the three children moved from Waunakee, Wisconsin to Manitowoc, Wisconsin. A temporary order gave Bonnie primary physical placement. During this time, the girls were reluctant to go with Clair for temporary placement and would run away and climb trees when he came to pick them up.
Clair and Bonnie were divorced in February 1987 by Dane County Circuit Court Judge Mark A. Frankel. The court found both parents fit to have the care, custody and control of the children. The court gave Bonnie primary placement of the three children and Clair received reasonable rights of temporary placement.
The temporary placement guidelines in the divorce judgment were specified in detail and were based on the recommendation of the guardian ad litem and the psychologists. After the divorce, both Clair and Bonnie filed numerous motions with the trial court alleging that the other was in contempt for failing to follow the divorce judgment and subsequent orders. The motions and affidavits detailed specific actions allegedly taken by each party toward the children and claimed that such actions were detrimental to the children. The motions dealt with accusations involving what the parties told the children, whether photographs could be taken of the children, problems with the pick-up and drop-off time and locations, problems with telephone contact, and issues over the children's clothes and toys. Their disputes eventually were transferred to Manitowoc county because the children resided in Manitowoc county.
In July 1990, Clair moved the court to transfer the primary placement of the three children to him. The basis for Clair's motion was that the children suffered from "Parental Alienation Syndrome," the condition was caused by Bonnie, and the only cure was to transfer primary placement of the children to him.
A three-day trial was held before circuit court Judge Fred H. Hazlewood. The court found that the three children were alienated from their father and that the alienation was attributable to both parents. The court denied Clair's motion to change primary placement because it was not in the children's best interests. The court also found that due to the history of the case, a rigid temporary placement schedule was in the children's best interests and altered the temporary placement schedule. The court also declined to order counseling for the parties or the children. Clair appeals.
The main issues in this case concern the trial court's physical placement decisions. A court has wide discretion in making physical placement determinations. See Bohms v. Bohms, 144 Wis.2d 490, 496, 424 N.W.2d 408, 410 (1988). The exercise of discretion will not be upset unless it represents a clear abuse of discretion or unless the court misapplied the law. Id.
The trial court's exercise of discretion in revising physical placement after two years from the initial physical placement order is controlled by sec. 767.325(1)(b), Stats. The court may make a modification if it finds that (1) the modification is in the child's best interest and (2) there has been a substantial change in circumstances since the entry of the last order substantially affecting physical placement. Id. There is a rebuttable presumption that continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the child's best interest. Section 767.325(1)(b) 2 b.
What is in the child's best interest is a mixed question of law and fact, with the determination of such matters as psychological factors being a question of fact. Pamperin v. Pamperin, 112 Wis.2d 70, 75, 331 N.W.2d 648, 651 (Ct.App.1983). Findings of fact will not be set aside unless clearly erroneous. Section 805.17(2), Stats. Questions of law ordinarily are reviewed independently. Wassenaar v. Panos, 111 Wis.2d 518, 525, 331 N.W.2d 357, 361 (1983). In cases where the trial court's legal conclusion is so intertwined with the factual findings, as here, this court will give weight to the trial court's decision. Id.
The first issue is whether the trial court abused its discretion when it refused to transfer primary placement to Clair. Clair argues that because the trial court found the children were alienated from him, the court erred in concluding that it would not be in the children's best interests to transfer primary placement to him to cure the syndrome. 1 Clair's expert, Dr. Gerald Wellens, concluded that both Carissa and Ruscena "severely" suffer from the syndrome and have "one of the worst cases I've ever seen in doing this kind of work." 2 Wellens stated that he was "positive" that Bonnie was the cause of the syndrome. Wellens opined that the only remedy was to place the children with Clair.
The trial court acknowledged that Wellens was a respected psychologist and the court respected his opinions. However, the court rejected Wellens' recommended cure of placing the children with Clair. The court pointed out that Wellens admitted that transferring primary placement involved uncertain risks. The court acknowledged that the long-range negative effects of the alienation will exist, but the high degree that Wellens described is speculative. Such a transfer may jeopardize the children's progress in school and relationships with friends. 3 Wellens' testimony itself indicated that the cure is controversial and that there is limited research data to support the success of transferring the children to the "hated" parent. The court concluded that the evidence was not strong that the alienation would be cured by placing the children with Clair.
The trial judge interviewed the children and found that they do not like their father and do not want to live with him. One child told the judge that her feelings came from her own observations. Because the children are "adamantly" opposed to living with Clair, the court stated that the potential risk of harm to the children outweighed the questionable benefits of transferring placement. The court concluded that the cure proposed by Clair presented too high of a risk of harm. 4
Based on the weighing of all the evidence, the court found that the cure proposed by Clair was not better than the current primary placement with Bonnie. The court found that the psychological impact on the children is risky and uncertain. These findings are not clearly erroneous. These findings more than adequately support the court's conclusion that the best interests of the children would not be served by a transfer of placement. Therefore, the court did not abuse its discretion. 5
Clair repeatedly stresses that the cure advocated by Wellens was uncontradicted and that the court erred by not accepting it. The weight of the testimony is peculiarly within the province of the trial court acting as the trier of fact. Kleinstick v. Daleiden, 71 Wis.2d 432, 442, 238 N.W.2d 714, 719-20 (1976). A court is not obliged to adopt uncontradicted testimony if there is other evidence in the case that renders it unreasonable. See Peterson v. Peterson, 126 Wis.2d 264, 266, 376 N.W.2d 88, 89 (Ct.App.1985). As summarized above, Wellens' testimony itself provides for a basis to reject the cure in this case. Wellens' testimony indicated that the cure was controversial, there is limited research data, and there are uncertain risks. Furthermore, the testimony of both parents and the children was other evidence that the cure advocated by Wellens would not be successful and was unreasonable. Therefore, we cannot find error in the court's refusal to accept Wellens' opinion.
The second issue is whether the trial court abused its discretion when it revised temporary placement. 6 Clair argues that there was no basis for the revision.
Our review of the record indicates that the parties' past behavior is a substantial basis for the trial court's revision. The revision was necessitated by the parties' demonstrated inability to work under the temporary placement schedule. The new order requires bus transportation of the children to and from Waunakee through Milwaukee. This is a reasonable response to the...
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