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COURT OF APPEALS DECISION DATED AND FILED February 27, 2014 Diane M. Fremgen Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from an order of the circuit court for Clark County: jon m. counsell, Judge. Affirmed.
¶1 HIGGINBOTHAM, J.[1] Sara
M. Marcott appeals a circuit court order finding her in contempt of court for
violating that part of the judgment of divorce that awarded her and her
ex-husband, Lonnie, joint legal custody of their two minor children. The court found Sara in contempt because she
moved the children from a school in the Greenwood school district to a school
in the Auburndale school district without Lonnie’s consent.
¶2 On
appeal, Sara contends that the circuit court erred in making its contempt
finding because: (1) she was the “primary caretaker” of the children,
pursuant to Wis. Stat. § 767.41(6)(c),
and therefore she had “primary rights regarding the children’s education” and
Lonnie only had “residual parental rights;” (2) a party cannot “be held in
contempt for a purported violation of a statutory provision not specifically
incorporated into an order” of the court; and (3) the circuit court failed
to properly apply the law to the facts of this case. For the reasons we explain below, we reject
Sara’s arguments and affirm.
BACKGROUND
¶3 The relevant facts are undisputed. Sara and Lonnie filed a joint petition for divorce. The parties stipulated that they would have joint legal custody of their two minor children, and that Sara would have primary physical placement. The court entered a judgment of divorce, which incorporated the parties’ stipulations. At the time the court entered the divorce judgment, the parties lived in different cities in Clark County: Sara resided in Greenwood, and Lonnie resided in Abbotsford. The children attended school in the Greenwood school district. However, a couple months before the 2012 school year began, Sara moved the children to Auburndale, a short distance away from Greenwood, and enrolled the children in a school in the Auburndale school district. Sara did not seek permission from Lonnie to do so, and Lonnie did not consent to sending the children to a new school.
¶4 Lonnie moved the circuit court to find Sara in contempt of court for failing to comply with the divorce judgment by enrolling the children in a school in the Auburndale school district without his consent.[2] Following a hearing, the circuit court granted the motion. The court found that Sara lacked the authority to change the children’s school district without Lonnie’s consent because, pursuant to Wis. Stat. § 767.001(2)(a), a person who is granted legal custody of a child, such as Lonnie, has the “right and responsibility to make major decisions concerning the child,” which, pursuant to § 767.001(2m), includes “choice of school.” The circuit court concluded that Sara violated the divorce judgment because she made a “major decision” concerning the children without Lonnie’s consent, and thus denied him his rights as a joint legal custodian. Sara moved for reconsideration. The court denied the motion. Sara appeals.
DISCUSSION
¶5 In actions affecting
the family, the circuit court is vested with the authority to do “all acts and
things necessary and proper in those actions and to carry … orders and
judgments into execution.” Wis. Stat. § 767.01(1). The broad authority of the circuit court
includes the authority to find a person in contempt of court for intentionally
disobeying, resisting, or obstructing an order of the court, such as a divorce
judgment. See Wis. Stat. § 785.01(1)(b);
Tensfeldt
v. Haberman, 2009 WI 77, ¶35, 319 Wis. 2d 329, 768 N.W.2d 641 (violating
a divorce judgment “is unlawful and can subject the violator to sanctions for
contempt of court”).
¶6 We
review a circuit court’s contempt finding for an erroneous exercise of
discretion. Monicken v. Monicken, 226
Wis. 2d 119, 125, 593 N.W.2d 509 (Ct. App. 1999). A circuit court’s discretionary decision is
upheld as long as the court examined the relevant facts, applied a proper
standard of law, and using a demonstrated reasoned process, reached a
conclusion that a reasonable judge could reach.
LeMere v. LeMere, 2003 WI 67, ¶13, 262 Wis. 2d 426, 663 N.W.2d
789.
¶7 Sara first argues
that the circuit court erred in holding her in contempt of court for
obstructing the divorce judgment because Wis.
Stat. § 767.41(6)(c) “allows for the specification of one parent as
the ‘primary caregiver,’” and the “primary caregiver” has “primary rights
regarding the children’s education” and the other parent “retain[s] residual
parental rights.” We conclude that Wis. Stat. § 767.41(6)(c) does not
apply to this case.
¶8 Wisconsin Stat. § 767.41(6)(c)
provides in full:
In making an order of joint legal custody and periods of physical placement, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child, for the purpose of determining eligibility for aid under s. 49.19 or benefits under ss. 49.141 to 49.161 or for any other purpose the court considers appropriate.
By its plain terms, § 767.41(6)(c) applies only for the purpose of
determining eligibility for aid or for benefits under the specific statutes
cited therein, or for any other purpose the court in its discretion deems
appropriate. Sara fails to explain why
this statute applies in a case where neither party is seeking aid or benefits
under any of the statutes cross-referenced in § 767.41(6)(c), and the
court did not specify that Sara was the primary caretaker of the children for
any other purpose, such as to make decisions regarding the children’s
education.
¶9 Sara
relies on Westrate v. Westrate, 124 Wis. 2d 244, 369 N.W.2d 165 (Ct. App.
1985), for the proposition that she has the right as the “primary caretaker”
under Wis. Stat. § 767.41(6)(c)
to make decisions regarding the children’s education without Lonnie’s
consent. Sara’s reliance on Westrate
is misplaced for two reasons.
¶10 First,
as we have already explained, the circuit court did not designate Sara as the
“primary caretaker,” pursuant to Wis.
Stat. § 767.41(6)(c).
¶11 Second,
Sara misreads Westrate. In Westrate,
we determined that a circuit court erred when it granted sole legal custody to
the mother and divided physical custody equally between the parents. Id. at 246. We concluded that, pursuant to Wis. Stat. § 767.24 (1985-86),
“physical custody implicitly must be united in the legal custodian” when the
parties do not agree to joint legal custody. Id. at 246-48. Westrate does not apply to this case
because, here, the parties stipulated to joint legal custody. When the parties stipulate to joint legal
custody, as they did here, the parties have equal rights to make decisions
concerning “choice of school.” See Wis.
Stat. § 767.001(1s), (2)(a), (2m).
¶12 To the extent that Sara may be arguing that she has the right to unilaterally choose the children’s school because she has primary physical placement of the children, we disagree. Primary physical placement is defined by statute as the following:
[T]he condition under which a party has the right to have a child physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody.
Wis. Stat. § 767.001(5). This statute does not grant Sara the right, as the party with primary physical placement, to change the children’s school because changing schools is not a “routine daily decision.” As we have explained, the statutory definition of “major decisions” includes “choice of school.” § 767.001(2m). Thus, reading § 767.001(2m) and (5) together, Sara did not have the right to unilaterally change the children’s school by virtue of the fact that she has primary physical placement.
¶13 Sara next argues, relying on Hunter v. Hunter, 44 Wis. 2d 618, 172 N.W.2d 167 (1969), and State v. Dickson, 53 Wis. 2d 532, 193 N.W.2d 17 (1972), that the circuit court erred in making its contempt finding because a party cannot be held in contempt “for a purported violation of a statutory provision not specifically incorporated into [the court] order.” We reject Sara’s argument on two grounds.
¶14 First, neither Hunter nor Dickson supports Sara’s
argument. In Hunter, the Wisconsin
Supreme Court determined that a husband could not be found in contempt of court
based on a portion of a divorce judgment explaining that Wis. Stat. § 245.10 (1969)
prohibited an individual from remarrying without permission from a court if the
individual was obligated to support minor children not in his or her legal
custody. Hunter, 44 Wis. 2d at
621-22. The court reasoned that the
divorce judgment merely explained the terms of the statute and “did not
specifically order or adjudge” that the husband could not remarry without
permission from a court. Id. at
622 (emphasis omitted).
¶15 In
Dickson,
the supreme court concluded that a circuit court erred in finding an attorney
in contempt of court for failing to comply with instructions provided in a
document that was rubber stamped with the name of the clerk of court because a
document “issued by the clerk is not an order of the court.” Dickson, 53 Wis. 2d at 534-35,
540.
¶16 There
is a critical difference between Hunter and Dickson, on the one hand,
and this case on the other. In both Hunter
and Dickson, the individuals who were found in contempt of court
did not actually violate a court order. See Hunter,
44 Wis. 2d at 621-22; see also Dickson, 53 Wis. 2d at 540-41. Here, in contrast, Sara did in fact violate a
court order when she failed to comply with the portion of the divorce judgment
that awarded joint legal custody to the parties.
¶17 The
second ground for rejecting Sara’s argument is that, even though the divorce
judgment did not expressly include the statute defining “joint legal custody,” see Wis.
Stat. § 767.001(1s), the divorce judgment necessarily
invoked the statute defining that term because “[t]he action for divorce is a
statutory action.” Hirchert v. Hirchert, 243
Wis. 519, 525, 11 N.W.2d 157 (1943). That
is, a circuit court’s authority to act in actions affecting the family is
governed by the statutory scheme set forth in Wis.
Stat. ch. 767. Consequently, a
judgment of divorce entered by the court incorporates the applicable statutes
in ch. 767, even though the judgment does not specifically cite those
statutes.
¶18 Specific
to this case, a court’s authority to grant joint legal custody is found in Wis. Stat. § 767.41(2)(a), which
provides that a court may “give joint legal custody or sole legal custody of a
minor child.” Under Wis. Stat. § 767.001(1s), a court
that gives joint legal custody of a child is ordering both parties to “share
legal custody,” such that “neither party’s legal custody rights are superior,”
except as otherwise provided in the divorce judgment, and, as we have
discussed, all legal custodians have “the right and responsibility to make
major decisions concerning the child,” including “choice of school,” except as
otherwise provided in the divorce judgment.
§ 767.001(2)(a), (2m).
¶19 Thus,
as we can see, even though the circuit court did not expressly incorporate the
statute defining joint legal custody into the judgment of divorce, this divorce
action is governed by Wis. Stat. ch.
767, which includes the statute defining joint legal custody, Wis. Stat. § 767.001. Consequently, the absence of any cite to the
statute defining joint legal custody in the judgment of divorce does not render
the judgment unenforceable in a contempt proceeding.
¶20 Finally,
Sara argues that the contempt finding “was an erroneous application of law to
the facts.” However, applying the law to
the undisputed facts of this case, we conclude that the circuit court properly
exercised its discretion in finding Sara in contempt of court for violating the
divorce judgment. As we have explained,
the divorce judgment granted the parties joint legal custody regarding all
major decisions enumerated in Wis. Stat. § 767.001(2m),
including “choice of school.” Stated
differently, the judgment of divorce did not exclude Lonnie’s right as a joint
legal custodian to participate equally in the decisions regarding “choice of
school” for the children. Accordingly,
under the terms of the judgment of divorce, Sara and Lonnie had equal rights in
deciding where to send the children to school. Thus, based on Sara’s own admissions, she
intentionally violated that part of the judgment of divorce granting joint
legal custody by unilaterally sending the children to a school in the
Auburndale school district, without seeking and obtaining Lonnie’s consent.
CONCLUSION
¶21 For
all of the above reasons, we affirm.
By the Court.—Order affirmed.
This appeal will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(h) (2011-12). All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] We note that the parties do not dispute that Sara did not need Lonnie’s consent to relocate from Greenwood to Auburndale because a parent with legal custody and physical placement rights is not required to provide notice to the other parent when establishing a new legal residence with the child, as long as the new legal residence is within the state and is less than 150 miles from the other parent. Wis. Stat. § 767.481(1)(a).