COURT OF APPEALS DECISION DATED AND FILED March 5, 2009 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
from an order of the circuit court for
Before Dykman, Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Elisa M. Rose appeals from the
order dismissing her motion and supplemental motion to modify placement. Rose argues that her motion was sufficient to
establish that there had been a change in circumstances warranting modification
of placement, that she was entitled to a hearing on the motion, and that the
circuit court erred when it dismissed her motion. Rose argues that a change in circumstances
occurred when her son’s primary placement was changed from with his father in
¶2 Rose and Herbert Gibson were divorced in 2004. They have two children: Ana and Adam.
At the time of the divorce, Rose and Gibson agreed that Gibson would
have primary placement of the children in
¶3 In March 2008, Rose filed a motion to modify placement. She later amended this motion. Gibson and the guardian ad litem responded to
the motion. Rose argued that there has
been a substantial change in circumstances since the time of the divorce
because Adam and Ana now live separately, and that Ana needed to be with her
brother. The circuit court determined,
however, that there had not been a change in circumstances since the time of
the order entered in 2007 that provided for the interim placement of Adam with
Rose in
There is something truly unfair about reaching an
agreement permitting Adam to move primarily to
The circuit court denied the motion without holding a hearing.
¶4 The circuit court has wide discretion in making physical
placement decisions, and we sustain the exercise of discretion if the court
made its determination based on the facts of record, demonstrated a logical
rationale, and made no error of law. Lofthus
v. Lofthus, 2004 WI App 65, ¶16, 270
¶5 A party moving for a modification of physical placement under
Wis. Stat. § 767.451(1)(b)1.
(2007-08)[1]
must show that modification is in the child’s best interests and that there has
been a substantial change in circumstances since the entry of the last order
affecting physical placement. “A
substantial change of circumstances requires that the facts on which the prior
order was based differ from the present facts and the difference is sufficient
to justify the circuit court’s consideration of modification.” Abbas v. Palmersheim, 2004 WI App
126, ¶9, 275
Whether there is a substantial change in circumstances is a mixed question of law and fact. The circuit court’s findings of fact regarding an alleged change of circumstance since the last custody and placement order will not be disturbed unless clearly erroneous. However, whether a substantial change in circumstances has occurred is a question of law. Because the circuit court’s legal determination is mixed with its factual findings, we give weight to the circuit court’s decision.
Abbas, 275
¶6 In this case the circuit court gave two reasons for denying
Rose’s motion without holding a hearing.
First, the court found that Rose had failed to follow a procedure
established by the 2006 stipulation and order for resolving such a
dispute. Second, the court concluded
that Rose had improperly and unfairly attempted to use the agreement permitting
Adam to move to
¶7 Giving deference to the circuit court’s decision, and under
the circumstances of this case, we conclude that Rose has not established that
“the facts on which the prior order was based differ from the present facts and
the difference is sufficient to justify the circuit court’s consideration of
the modification a substantial change in circumstances.” At the time of the divorce Rose agreed that
both children would have primary placement with their father in Wisconsin. In 2006, she moved to have the placement of
both children changed to be with her in
¶8 In 2008, Rose again moved to change Ana’s primary placement on the basis that Adam’s change in placement, which occurred pursuant to the stipulation, was a substantial change in circumstances. In support of that claim, Rose argued that Adam and Ana missed each other and that, given Adam’s age, there was only a short amount of time for the two of them to be able to live together. Rose certainly knew at the time she entered into the stipulation that Adam was not going to remain living with either of his parents for an indefinite period of time. Further, it is not unexpected that Ana, who had lived with Adam her entire life, might miss her brother when separated from him.
¶9 In essence then, the change in circumstances on which Rose relies is the change in Adam’s primary physical placement—the very change she sought and obtained an agreement to bring about just one year prior to filing this motion.[2] The standard of a substantial change in circumstances is intended to establish a significant showing before the court is required to consider whether the best interests of the child warrant a change in placement. The standard is undermined if a party can meet it as Rose is attempting to do here.
¶10 Rose argues that the court must look at the change in circumstances from the time of the divorce, and not from the time of the 2007 order. We conclude, however, that it does not matter whether we view the change from the time of the divorce or the time of the change in placement stipulation. The fact remains that the change in circumstances Rose relies on occurred as the result of her seeking and obtaining an agreement to that change.
¶11 Gibson asserts that the issue of whether Adam’s placement should remain with Rose has yet to be decided. Nothing in this opinion should preclude the parties from seeking a resolution of any outstanding issues. For the reasons stated, we affirm the order of the circuit court.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] We note the circuit court did not view the record as showing that changes in Ana’s behavior or her emotional adjustment, in themselves constituted a substantial change in circumstances, and we agree with this conclusion.