COURT OF APPEALS
DECISION
DATED AND FILED
October 30, 2008
David R. Schanker
Clerk of Court of Appeals
|
|
NOTICE
|
|
|
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.
|
|
Appeal No.
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
DISTRICT I
|
|
|
|
|
In re the Paternity of J.M.G.
State of Wisconsin,
Petitioner,
v.
April Griffin,
Respondent-Appellant,
Matthew K. Sebuliba,
Respondent-Respondent.
|
|
|
|
|
|
|
|
APPEAL
from an order of the circuit court for Milwaukee County: michael
d. goulee, Judge. Affirmed.
Before
Dykman, Vergeront and Lundsten, JJ.
¶1 PER CURIAM. April Griffin appeals from an
order that awarded Matthew Sebuliba sole legal custody and primary physical
placement of the parties’ son, Jesse. She also challenges the ruling changing
Jesse’s name and a contempt ruling that occurred during the custody
proceedings. For the reasons discussed
below, we conclude that the contempt ruling is now moot and affirm the rest of
the circuit court’s decisions.
BACKGROUND
¶2 The State initiated the underlying paternity action to
establish that Sebuliba was Jesse’s father.
After genetic testing and acknowledgment by both parents, a court
commissioner entered a judgment of paternity, directed the appointment of a
guardian ad litem to consider custody issues, and issued a temporary order
awarding primary physical placement to Griffin,
with supervised visitation for Sebuliba.
The commissioner also changed Jesse’s name from Jesse Moses Peter
Emmanuel Griffin to Jesse Moses Sebuliba-Griffin, based on a partial oral
stipulation that if the last name were to be hyphenated, it should be
Sebuliba-Griffin. After Griffin
failed to comply with the temporary visitation provisions, the court
commissioner slightly amended the temporary order and warned Griffin that interference with a placement
order could become a factor in future custody decisions.
¶3 Griffin
sought a de novo hearing on the custody and placement decisions, and also
sought to reinstate Jesse’s original name including the additional middle names. She and two of her sisters each testified
that Sebuliba had attacked Griffin while she was
pregnant and had threatened to take Jesse to Africa. Griffin
also claimed that Sebuliba had ignored a breathing problem Jesse had during his
one supervised placement and otherwise neglected him.
¶4 Sebuliba filed a cross-motion for a de novo hearing on both
the custody and name change issues, requesting that the child’s name be changed
to Jesse Moses Griffin-Sebuliba. At the
hearing, Sebuliba denied committing any abuse against Griffin
or Jesse and provided police reports backing up his claim that Griffin had actually been
the one arrested for attacking him and damaging his property. He also denied neglecting Jesse or
threatening to take him to Africa, other than a plan to visit his mother at some
point in the future after the child was five or older, and testified about Griffin’s efforts to block
his attempts at exercising his visitation rights. The testimony of the responding police
officer at the domestic incident and the visitation supervisor who had
monitored Sebuliba’s placement both supported Sebuliba’s version of events
rather than Griffin’s.
¶5 After hearing the testimony, the trial court rejected Griffin’s claims of abuse
and stated that it intended to grant joint legal custody and shared physical
placement. However, it noted that it
needed additional information on the home situations of the parties before
setting a visitation schedule. It
granted Sebuliba’s request to change the child’s name to Jesse Moses
Griffin-Sebuliba, commenting that Jesse Moses Peter Emannuel Griffin was “too
many names.” When the guardian ad litem
pointed out that she could not complete her investigation until Griffin gave her
a home address, the court ordered Griffin to give the GAL her address so that a
home study could be conducted, or in the alternative, to produce the child the
following day so that he could be placed in foster care or with the
father. After Griffin repeatedly refused to provide her
address or produce the child, the court held her in contempt.
¶6 At a series of hearings held over the next few days, the
court repeatedly advised Griffin,
both in person and through newly appointed counsel, that she could purge her
contempt at any time by producing the child. The court also entered a written order to that
effect, as well as an order and a warrant directing law enforcement to find the
child and turn him over to Sebuliba with notification to child services. A month later, when Griffin had still not produced the child,
Sebuliba moved for a written order granting him sole legal custody and primary
placement to assist law enforcement agencies in finding the child. In response, the court issued a written
decision stating in relevant part that “the court hereby orders that sole legal
custody and primary physical placement of the child at issue, Jesse Moses
Griffin-Sebuliba, shall be with the Respondent father Matthew K. Sebuliba,” and
that the “Respondent mother April H. Griffin is granted supervised periods of
placement, which must be supervised through an independent agency.” It is that order that Griffin appeals.
DISCUSSION
¶7 As a threshold matter, Sebuliba challenges this court’s
jurisdiction over the appeal on the ground that the written order granting him
sole legal custody and primary physical placement is not a final, appealable
document. He contends that the order is
not final because the trial court has at various times explicitly contemplated
granting Griffin
periods of physical placement if and when she ever purges herself of contempt.
¶8 We agree that our jurisdiction under Wis. Stat. Rule 809.10(4) (2005-06)
is limited to final judgments and final orders.
However, we disagree that the custody and placement order at issue here
is not final. A judgment or order is final
when it disposes of the entire matter in litigation as to one or more of the
parties. Wis. Stat. § 808.03(1); see also Tyler v. Riverbank, 2007 WI 33, ¶17,
299 Wis.
2d 751, 728 N.W.2d 686. Here,
the matters in litigation on the circuit court’s de novo review were the
parties’ competing requests for sole legal custody and physical placement, and
their dispute over the child’s name. The
court’s order granted sole legal custody and primary physical placement to
Sebuliba, and also implicitly resolved the name change issue by referring to
the child as Jesse Moses Griffin-Sebuliba.
The fact that the order did not specify a current visitation schedule
for Griffin but allowed the possibility that Griffin could petition for
unsupervised visitation in the future does not alter the fact that, on its
face, the order disposed of the issues which were before the court at the time
the order was entered. We are therefore
persuaded that we have jurisdiction over the appeal as of right. We are further persuaded that we have
jurisdiction to consider the court’s contempt ruling within the context of the
present appeal as “derivative of and attached to” the underlying action. See State ex
rel. James L.J. v. Circuit Court, 200 Wis. 2d 496, 507-11, 546 N.W.2d 460 (1996)
(discussing relationship of contempt rulings to underlying actions in context
of judicial substitution requests).
¶9 Griffin
raises seven issues on appeal. We will
address each in turn.
¶10 First, Griffin
claims that the court lacked personal jurisdiction over her because she was
never served with a summons and petition, only a motion regarding the custody
issues. However, the record contains an
affidavit of service, showing that the State did, in fact, serve Griffin with the summons
and petition for the underlying paternity action. The custody proceedings were part of
that action under the paternity statute, and did not require a separate summons
and complaint. See Wis. Stat.
§ 767.89(3)(b). There is therefore
no factual basis in the record for Griffin’s
personal jurisdiction claim on appeal.
Furthermore, because Griffin
never challenged the service affidavit or otherwise raised the issue of
personal jurisdiction in the circuit court, she waived any
lack-of-personal-jurisdiction claim. See L.R.E.
v. R.E.J., 168 Wis.
2d 209, 213, 483 N.W.2d 588 (Ct.
App. 1992).
¶11 Second, Griffin
contends that the trial court failed to consider relevant statutory factors for
custody and placement under Wis. Stat.
§ 767.41(2) and (5), focusing primarily on her own allegations that
Sebuliba had engaged in domestic abuse against her and had failed to take any
interest in the child. However, the trial court explicitly rejected
her testimony regarding those allegations.
Instead, the trial court accepted the testimony of Sebuliba, the police
officer, and the social worker that Griffin
herself had been the one to engage in assaultive behavior during the domestic
incident, and that Sebuliba had not been able to engage in a relationship with
Jesse because Griffin
had sabotaged Sebuliba’s attempted visitation. Credibility determinations by a trial court
acting as the fact-finder are not reviewable by this court. State v. Oswald, 2000 WI App 3, ¶47,
232 Wis. 2d
103, 606 N.W.2d 238.
¶12 The circuit court did not expressly discuss all of the custody
and placement factors under Wis. Stat.
§ 767.41(2) and (5). However, the
parties did not present evidence as to each factor. Consequently, the court necessarily based its
decision on the information that it had before it. The court’s discussions at several hearings
make plain that it believed the best interest of the child was to maintain a
relationship with both parents, and that Griffin’s
actions demonstrated that she would undermine Sebuliba’s relationship with
Jesse if she could. The court then cited
Wis. Stat. § 767.41(5)(am)11.
— “whether one party is likely to unreasonably interfere with the child’s
continuing relationship with the other party” —as the primary basis in its
written decision for awarding sole legal custody and primary physical placement
to Sebuliba. The determination of legal
custody and placement issues are committed to the circuit court’s discretion
and we will reverse only when there was an erroneous exercise of discretion. Brandt v. Witzling, 98 Wis. 2d 613, 618, 297
N.W.2d 833 (1980). It was well within
the trial court’s discretion to determine that Griffin’s custodial interference and
inability to cooperate were the overriding statutory factors in this case.
¶13 Third, Griffin
contends that the trial court failed to follow the proper statutory procedures
before imposing the contempt sanction.
Intentional disobedience of a court order constitutes contempt of
court. See Wis. Stat. § 785.01(1)(b).
A contempt finding may result in a punitive sanction designed to punish
the offending person in order to uphold the authority of the court and/or a
remedial sanction imposed for the purpose of terminating a continuing
contempt. Wis. Stat. § 785.01(2) and (3). The court may impose a punitive contempt
sanction of up to thirty days confinement in a summary manner based upon
conduct which occurs before it in open court.
Wis. Stat. §§ 785.03(2)
and 785.04(2)(b). However, a court may
impose a remedial contempt sanction of up to six-months confinement only upon
the motion of a person aggrieved by the contempt other than the court itself,
and only after notice and an evidentiary hearing to determine that the failure
to obey the court order was intentional. Sections 785.03(1)(a) and 785.04(1)(b); Evans
v. Luebke, 2003 WI App 207, ¶¶23-25, 267 Wis. 2d 596, 671 N.W.2d 304.
¶14 Here, Griffin’s
refusals to provide her address to the GAL at the de novo hearing or to produce
the child the next day would each qualify as disobedience of a court
order. The refusals were made in open
court. The court apparently chose to
impose remedial rather than punitive sanctions.
However, it did so sua sponte at the de novo hearing without providing Griffin with advance notice that contempt sanctions were
being sought and without holding a separate evidentiary hearing to make the
requisite findings that Griffin
had intentionally violated the court’s orders.
¶15 The court’s actions do raise a number of questions as to the
procedural validity of the contempt order.
However, we also note that Griffin
has not alleged how she was prejudiced by any procedural defects because she
does not actually dispute that she intentionally violated the court’s orders
and does not explain what evidence she would have presented at an evidentiary
hearing. In any case, recent
correspondence to this court indicates that Griffin is no longer being held in jail on
the contempt order. Because Griffin has already
obtained release from jail, we conclude that the contempt issue is now moot and
we will not address it further.
¶16 Griffin’s
fourth claim on appeal seems to center on her assertion that “[a]n unwed father
cannot win primary custody over a mother who is a good parent,” in conjunction
with evidence which she believes shows her to be a good parent. This claim entirely ignores Wisconsin’s
paternity statutes, which provide a presumption of joint custody and not only
allow but require a court to provide primary placement to an unwed father when
it would be in the child’s best interest to do so, after considering all of the
statutory factors. Furthermore, much of
the evidence that Griffin
claims the trial court should have considered includes information such as
medical records, which were not presented at the hearing, and her own rejected
testimony. We have already explained
that the trial court properly applied the relevant statutory factors here,
based on the information it had been provided.
¶17 Fifth, Griffin claims the trial court erred in changing her
son’s name from Jesse Moses Peter Emmanuel Griffin to Jesse Moses Griffin-Sebuliba
because the court did not follow the procedures set forth in Wis. Stat. § 786.36 and discussed
in State
v. Charles R.P., 223 Wis.
2d 768, 590 N.W.2d 21 (Ct. App. 1998). As Sebuliba correctly points out, however, Charles
R.P. was decided before the enactment of Wis. Stat. § 767.89(3m) — the provision under which the
circuit court was acting here. See 2001
Wis. Act 16 § 3793m (creating name change
provision in paternity statute effective Sept. 1, 2001); 2005 Wis. Act 443 § 218 (renumbering
provision effective June 6, 2006). Under
§ 767.89(3m), a paternity judgment may include “an order changing the
surname of the child to a surname that consists of the surnames of both parents
separated by a hyphen,” and the provisions of § 786.36 explicitly do not
apply. Therefore, the court plainly had
the authority to change Jesse’s last name to Griffin-Sebuliba.
¶18 Sixth, Griffin argues that the trial court erred in changing
Jesse’s placement less than two years after the paternity judgment was entered,
without any substantial change in the parties’ circumstances. See
Wis. Stat.
§ 767.451(1)(a). However, the
custody and placement provisions contained in the paternity judgment were
clearly the temporary rulings of the court commissioner, not the final custody
and placement decision by the court.
Therefore, the presumption against modifying a final judgment relating
to placement without a substantial change in circumstances does not apply.
¶19 Finally, Griffin
argues that the trial court erred by disregarding the federal immigration and
nationality act and immigration status of Sebuliba. Essentially, she claims that a U.S. court
cannot grant paternity status to a father who is not a citizen of this
country. However, she has not provided
any relevant authority for this position.
In addition, she did not raise this issue before the trial court. We will therefore not address it further. See State v. Pettit, 171 Wis.
2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992); State v. Hayes, 167 Wis. 2d 423, 425, 481
N.W.2d 699 (Ct. App. 1992).
¶20 In sum, we affirm the custody and placement decisions of the
circuit court as well as the trial court’s name change order.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.