COURT OF APPEALS DECISION DATED AND RELEASED APRIL 8, 1997 |
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. 96-3009-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
LAURIE RUTH ROSIN,
f/k/a
LAURIE RUTH JEWELL
SCHOLTUS,
Petitioner-Appellant,
v.
LEE ALAN SCHOLTUS,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Douglas County:
JOSEPH A. MCDONALD, Judge. Cause
remanded with directions.
Before LaRocque, Myse
and Madden, JJ.
LaROCQUE, J. Laurie Ruth Rosin appeals an order granting
her former husband, Lee Scholtus, substantial periods of physical placement of
the parties' six-year-old son.[1] The order arising out of Lee's motion to
hold Laurie in contempt, grants Lee nine consecutive nights and ten days of
physical placement each month of the school year. Laurie contends that the court was required to appoint a guardian
ad litem pursuant to § 767.045, Stats. This statute provides:
Guardian ad litem for minor children
(1) Appointment. (a) the court shall appoint a guardian ad
litem for a minor child in any action affecting the family if any of the
following conditions exist:
1. The court has
special concern as to the welfare of a minor child.
2. The
legal custody or physical placement of the child is contested.
Section 767.001(5), Stats., defines physical placement:
"Physical
placement" means the 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.
Lee contends that
because his motion did not seek to modify the divorce judgment, but only sought
an interpretation or clarification of "reasonable visitation," the
statute has no application. Because the
court awarded substantial physical placement, and because the boy's
psychologist's report demonstrates a need for special concern for the minor
child's best interests, we conclude that the boy should be represented by a
guardian ad litem. Although the court
inquired at the outset of the hearing whether the proceeding would go forth
without a guardian ad litem, and Laurie's counsel did not respond, Lee concedes
that under some circumstances the court must appoint a guardian ad litem sua
sponte. See de Montigny v. de
Montigny, 70 Wis.2d 131, 137, 233 N.W.2d 463, 467 (1975).
Our decision does not
mandate a new evidentiary hearing. The
matter is remanded for the appointment of a guardian ad litem who may advise
the court whether there is objection to the physical placement provisions of
the order. Absent a request to present
further evidence or argument, the order may stand without further
proceedings. Finally, we reject
Laurie's contention that the court erroneously exercised its discretion by
failing to apply the statutory factors relevant to visitation. We therefore remand for further proceedings
consistent with our opinion.
The parties were married
in 1984, a son was born in 1990 and the parties divorced in Douglas County in
June 1991. A stipulation incorporated
into the divorce judgment provided that both parties were fit and proper persons
for custody, but legal custody was awarded to Laurie. Lee was to have "reasonable visitation" upon
twenty-four hours' notice.
Laurie remarried in July
1994 and moved to Brookfield, Wisconsin, where her new husband resided. Lee was denied visitation for a month after
the move to Brookfield until Laurie was "settled in" her new home. For the following ten months, visitation was
not a problem but, in July 1995, Laurie refused visitation because her family
was moving from Brookfield to Milwaukee.
The following month of August 1995, Laurie again denied Lee visitation
with the child, who needed time to prepare for the start of school. Then, in September 1995, Laurie denied Lee
visitation, asserting the child needed time to adjust to school.
Laurie wrote to Lee
outlining several conditions necessary to the exercise of visitation:
1. You must bring a family
member with you each time you come to my home to visit. Sister Davida would be a good, and
convenient, choice. If you come by
yourself, you will not be allowed in the house.
2. Visits will take place once
per month in my home at my convenience, since I will have to stay home all
weekend. If we cannot find a mutually
agreeable time in a given month, no visit will take place that month.
3. Visits will last no longer
than 5 hours on Saturday and 5 hours on Sunday.
4. No toys or other gifts will
be brought in the house unless I have approved them prior to the time you come
to the door.
5. You
will need to prove to me after 12 months that you have been in therapy to learn
to control your anger and verbally abusive behavior, and have taken a parenting
course for me to consider relaxation of these guidelines.
Laurie testified that
Lee complied both prior to and for a year following the divorce to her demands
for supervised visitation imposed because Lee had made numerous threats toward
her. She also described various objections
to activities that Lee engaged in with the child she claimed were unsafe.
Lee's motion for
remedial contempt sought as a condition to purge the contempt that Laurie
permit visitation without obstruction or, alternatively, that a remedial
sanction as provided by statute, § 785.045, Stats. At the outset of the hearing, the court
inquired whether the parties were proceeding without a guardian ad litem. Lee's counsel responded that none was
necessary because there was no request for a change in legal or physical
custody. Laurie's counsel had no
response to the court's inquiry.
An order of remedial
contempt was issued in September 1996.
The court criticized Laurie's escalating visitation restrictions and
attitude toward Lee's parental rights.
The court found that Laurie's visitation guidelines were contrary to the
exercise of reasonable visitation by the child's father, and were
contemptuous. There is no challenge on
appeal to the court's contempt finding.
The court indicated that
because the parties could not agree on reasonable visitation, the court would
award "periods of physical placement." Pursuant to the order, Lee picks up his son from school on the
second Friday of each month during the school year, exercising nine consecutive
overnights and ten days of physical placement, in the city of the child's
residence. The court also awarded
divided time between the parents at Christmas and spring school break. Each party was given telephone contact three
times weekly, and Lee was given access to the child's school, medical, dental
and psychological records. The court
made rules and suggestions relating to gifts, finding that the father could
have been trying to buy the child's favor.
The court denied a request for Lee's visitation for one-half the summer
vacation, pending further advice from a psychologist who had been working with
the family.
We do not fault the
trial court for proceeding without a guardian ad litem. The court inquired of the parties, and
neither side suggested it was necessary.
Nevertheless, as the evidence unfolded, while Lee's counsel advised the
court prior to the hearing that "physical custody" was not in
dispute, in fact physical placement was in dispute. Of equal importance is the
evidence presented at the hearing, and relied upon by the court in making its
placement decision, demonstrating a serious concern for the boy's welfare. The court made reference to the letter of a
psychologist, Michael Mandli. It is
apparent the boy has had significant problems adjusting to his family situation,
and that adjustment is exacerbated by his parents' behavior toward each
other. We cannot say with confidence
that either party, under these circumstances, could fairly represent the
child's best interests in resolving a longstanding dispute over visitation and
placement.
We recognize that the
challenged order is a remedial contempt order and not a modification of the
divorce judgment. Nevertheless, under
the unique consequences of the remedy provided, the result is, in fact, a substantial
change in what the parties contemplated in their stipulated judgment. It is also arguable that because the child
must remain in the city of his residence, Lee does not have "physical
custody." Again, however, in light
of the significant and continuous overnight visitation awarded, and in view of
the boy's egregious problems, we believe a guardian ad litem should represent
the child. This requirement is only a
slight impediment to the court's broad contempt powers made necessary by the
unusual nature of the remedy provided in this case.
Apart from the absence
of a guardian ad litem, we summarily reject Laurie's contention that the court
did not consider the proper factors in awarding expanded visitation. These decisions rest peculiarly with the
trial court's discretion. See Biel
v. Biel, 114 Wis.2d 191, 194, 336 N.W.2d 404, 406 (Ct. App. 1983). The record reflects the court's
consideration of the factors set forth in § 767.24(5), Stats.
We
therefore reverse the order entered without the participation of a guardian ad
litem, and remand for appointment of such a person who may advise the court
whether he or she desires to present further evidence or argument on behalf of
the minor child.
By the Court.—Order
remanded with directions.
Not recommended for
publication in the official reports.