COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 6, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0264
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
MOONEEN M. WAITE AND
BERNARD W. WAITE,
Petitioners-Appellants,
v.
KATHERIN J. WEMMER,
WAYNE ASPSETER AND
GARY LOCKBURNER,
Respondents-Respondents.
APPEAL from an order of
the circuit court for Sawyer County:
NORMAN L. YACKEL, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Mooneen and Bernard
Waite appeal a trial court order dismissing their petition for grandparent
visitation with their daughter's three children. The Waites argue the trial court erred by dismissing their
petition for visitation because the children are not part of an intact
family. Additionally, they argue either
this court, or the trial court on remand, should invoke its equitable powers to
order visitation. We affirm in part,
reverse in part and remand the case for further proceedings consistent with this
opinion.
The Waites seek
visitation with their daughter Katherin Wemmer's three children.[1] Tyler and Thomas are the two oldest children
of Wemmer and Wayne Aspseter, who divorced approximately two years after Thomas
was born. Several years after the
divorce, Wemmer had a third child, Heather. Heather's father is alleged to be
Gary Lockburner, although the record suggests he has never been married to
Wemmer and has not been adjudicated Heather's father.
Wemmer and Lockburner
filed a motion to dismiss the Waites' petition pursuant to § 802.06(2)(a)6, Stats., alleging the petition failed to
state a claim upon which relief can be granted.[2] The trial court heard oral argument on the
motion, but did not hear testimony from the parties. Ultimately, the trial court dismissed the petition. On appeal, we must determine whether the
petition was properly dismissed.
The purpose of a motion
to dismiss for failure to state a claim is to test the legal sufficiency of the
complaint. Town of Eagle v.
Christensen, 191 Wis.2d 301, 311, 529 N.W.2d 245, 249 (Ct. App.
1995). Because pleadings are to be
liberally construed, a claim will be dismissed only if it is quite clear that
under no conditions can the plaintiff recover.
Id. When reviewing
a motion to dismiss for failure to state a claim upon which relief may be
granted, this court accepts the alleged facts and all reasonable inferences as
true but decides the legal conclusions independently. Id. at 311-12, 529 N.W.2d at 249.
The legal issue raised
by Wemmer's and Lockburner's motion to dismiss concerns the Waites' standing to
seek visitation under § 767.245(1), Stats.,
which provides: "Upon petition by
a grandparent, greatgrandparent, stepparent or person who has maintained a
relationship similar to a parent‑child relationship with the child, the
court may grant reasonable visitation rights to that person if the parents have
notice of the hearing and if the court determines that visitation is in the
best interest of the child." A
person has standing to seek visitation pursuant to § 767.245(1) when two
circumstances are present: (1) an underlying
action affecting the family has previously been filed; and (2) the child's
family is non-intact. Cox v.
Williams, 177 Wis.2d 433, 439, 502 N.W.2d 128, 130 (1993). Once a court determines that a person has
standing to seek visitation, the court can consider, pursuant to § 767.245(1),
whether granting the petition is in the child's best interests.
Even
if a person lacks standing to seek visitation under § 767.245(1), Stats., a person may ask a court to
invoke its equitable power to protect a child's best interests by ordering
visitation under circumstances not included in the statute. See In re H.S.H.-K., 193
Wis.2d 649, 658, 533 N.W.2d 419, 421 (1995).
In H.S.H.-K., our supreme court held that a circuit court
has equitable power to determine if visitation is in a child's best interests
if the petitioner first proves that he or she has a parent-like relationship
with the child and that a significant triggering event justifies state
intervention in the child's relationship with a biological or adoptive
parent. Id. We will address separately whether the
Waites can petition for visitation pursuant to § 767.245(1), Stats., or by asking the court to
invoke its equitable powers.
STANDING UNDER § 767.245(1), STATS.
We begin by considering
whether the trial court properly dismissed the petition on grounds that the
Waites lacked standing under § 767.245(1), Stats. Because the children have different fathers,
we will consider first the petition as it relates to Tyler and Thomas, and
secondly, to Heather.
A. Tyler and
Thomas
The
trial court concluded that there was an underlying action affecting the family
because Wemmer and Aspseter had divorced and there had been ongoing support and
custody issues between them. Neither
party argues this conclusion was erroneous and we agree with the trial court's
conclusion.
Next, the trial court
concluded that the boys lived in an intact family with Lockburner and
Wemmer. We disagree with the trial
court's conclusion that the petition failed to state a claim. Whether a family is intact is generally a
fact-specific issue that is difficult to resolve based solely on the
pleadings. Here, the petition alleges
that Tyler and Thomas' biological father does not live with them. Whether a child lives apart from his
biological parent can be an influential factor in deciding whether a family is
intact, see In re Nastassja L.H.-J., 181 Wis.2d 666, 671, 512
N.W.2d 189, 191 (Ct. App. 1993) (child's family was non-intact where biological
father did not live with mother), although living apart from one's biological
parent does not always mean the child's family is non-intact. See In re Hegemann, 190 Wis.2d
447, 526 N.W.2d 834 (Ct. App. 1994) (children lived in intact family that
consisted of their mother and stepfather).
To determine whether a
child's family is intact, the court must consider a variety of factors, such as
the child's relationships with parents, stepparents and others. Unless the petition is unable to allege any
facts that suggest a child's family is non-intact, it should not be
dismissed. Because the Waites' petition
alleges facts that could support the conclusion that Tyler and Thomas' family
is non-intact and that there is an action affecting their family, the petition
states a claim upon which relief can be granted. Specifically, accepting the facts in the petition as true, the
Waites have standing to petition for visitation. Therefore, we reverse the trial court's dismissal of the petition
for visitation with Tyler and Thomas and remand the case for further
proceedings.[3]
B. Heather
In the case of Heather,
the trial court concluded that there was not an action affecting the
family. The petition does not allege
that both of Heather's parents have been involved in an action affecting the
family, such as a paternity action or a divorce. The only argument the Waites make is that because Tyler and
Thomas have been involved in an action affecting the family, "Arguably
Heather is also affected by the custody, child support and placement issues
raised as to the two older boys."
Although the Waites may be correct in their assertion that Heather will
be affected by the action affecting Tyler and Thomas, we are unconvinced that
the effects of another action on Heather satisfy the Cox
requirement that there be an action affecting the subject child's family.
Because we agree there
is no action affecting the family, we need not consider the Waites' argument
that Heather's family is non-intact. See
Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App.
1983) (only dispositive issues need be addressed). We agree with the trial court that the petition seeking
visitation based on § 767.245(1), Stats.,
was properly dismissed as it relates to Heather. Therefore, we affirm that portion of the trial court's order.
THE COURT'S EQUITABLE POWER TO ORDER VISITATION
Next, we consider
whether the Waites can seek visitation by asking the court to invoke its
equitable powers. We note that at the
time the Waites' petition was filed, H.S.H.-K. had not yet been
released. However, the petition did
seek "other and further relief as may be just and equitable." Furthermore, although H.S.H.-K.
was released two days before the trial court heard oral argument on the motion
to dismiss, the parties and the court were evidently unaware of the case and,
therefore, did not discuss whether the Waites satisfied the requirements
outlined in H.S.H.-K that allow the court to order visitation
pursuant to its equitable powers. The
Waites ask this court to invoke its equitable powers and order visitation. Alternatively, the Waites ask this court to
remand the case to the trial court so the trial court can examine whether to
order visitation based on its equitable powers.
In H.S.H.-K.,
our supreme court held that a circuit court has equitable power to determine if
visitation is in a child's best interests if the petitioner first proves that
he or she has a parent-like relationship with the child and that a significant
triggering event justifies state intervention in the child's relationship with
a biological or adoptive parent. Id.
at 658, 533 N.W.2d at 421. To meet these two requirements, a petitioner must
prove the component elements of each one.
Id. at 694, 533 N.W.2d at 435. The court detailed how each requirement must be proven:
To demonstrate the existence of the petitioner's parent‑like
relationship with the child, the petitioner must prove four elements: (1) that the biological or adoptive parent
consented to, and fostered, the petitioner's formation and establishment of a
parent‑like relationship with the child;
(2) that the petitioner and the child lived together in the same
household; (3) that the petitioner
assumed obligations of parenthood by taking significant responsibility
for the child's care, education and development, including contributing towards
the child's support, without expectation of financial compensation; and (4)
that the petitioner has been in a parental role for a length of time sufficient
to have established with the child a bonded, dependent relationship parental in
nature.
To
establish a significant triggering event justifying state intervention in the
child's relationship with a biological or adoptive parent, the petitioner must
prove that this parent has interfered substantially with the petitioner's
parent‑like relationship with the child, and that the petitioner sought
court ordered visitation within a reasonable time after the parent's
interference. The petitioner must prove
all these elements before a circuit court may consider whether visitation is in
the best interest of the child.
Id. at
694-95, 533 N.W.2d at 435-36 (footnote omitted).
Because the parties did
not have the opportunity to address whether these requirements had been
established in this case, we conclude it is appropriate to remand the case to
the trial court so it can determine whether it has equitable power to determine
whether visitation is in Tyler's, Thomas' and Heather's best interests, and, if
so, whether visitation is in each child's best interests. As H.S.H.-K explained, the
trial court has equitable power to determine whether visitation is in a child's
best interests if the petitioner first proves that he or she has a parent-like
relationship with the child and that a significant triggering event justifies
state intervention in the child's relationship with a biological or adoptive
parent. Id. at 658, 533
N.W.2d at 421.
Wemmer and Lockburner
argue that the Waites' petition sought relief solely pursuant to § 767.245(1), Stats., and did not ask the trial court
to exercise its equitable powers. Thus,
they argue, the Waites should not be allowed to complain that the trial court
failed to invoke its equitable powers.
First, we conclude the Waites' petition did seek equitable relief when
it requested "other and further relief as may be just and
equitable." Second, we think it
unreasonable that the parties could have guessed the requirements H.S.H.-K.
outlined before the case was released.
Thus, it is appropriate that we remand the case so the court can
consider whether the petition, or an amended petition if a new one is filed,
alleges facts that would allow the court to conclude that it has equitable
power to determine whether visitation is in a child's best interests. Because the trial court made no
determinations consistent with H.S.H.-K. for any of the children,
we remand the case for determination with respect to all three children.
In summary, with respect
to Tyler and Thomas, we reverse the trial court's dismissal of the petition for
failure to state a claim based on § 767.245(1), Stats., and the equitable powers of the court. With respect to Heather, we affirm the
trial court's dismissal of the petition based on § 767.245(1), but reverse the
dismissal of that portion of the petition seeking equitable relief. We remand the case so that the trial court
can determine whether it can and should award visitation with Tyler and Thomas
based on either § 767.245(1) or the court's equitable powers, and whether it
can and should award visitation with Heather based on the court's equitable
powers.
By the Court.—Order
affirmed in part; reversed in part and cause remanded. No costs on appeal.
Not recommended for
publication in the official reports.
[1] The record indicates Bernard may not be Katherin's natural or adopted father, but that issue does not affect our decision at this point in the case. However, on remand, the parties may raise the issue of Bernard's standing based on the lack of a biological or adoptive relationship with Katherin.
[2] It appears Aspseter had little or no participation at the trial court level and did not file an appeal in this case.
[3] We note that on remand, after further evidence is presented, the trial court may ultimately conclude that the grandparents lack standing because the family is intact. This opinion is not meant to preclude such a conclusion. Instead, we reverse the order dismissing the petition for failure to state a claim because the petition is to be liberally construed and we cannot conclude that it is quite clear that under no conditions can the grandparents establish standing. See Town of Eagle v. Christensen, 191 Wis.2d 301, 311, 529 N.W.2d 245, 249 (Ct. App. 1995).