COURT OF APPEALS DECISION DATED AND FILED July 29, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. Rick Bentrup, Jr., appeals from an order terminating a shared placement arrangement and awarding to his former wife, n/k/a Jennifer Devore, primary placement of Rick’s and Jennifer’s five-year-old daughter. We conclude that the altered arrangement represents a proper exercise of the trial court’s discretion. We affirm.
¶2 Rick and Jennifer divorced in 2005 when their daughter,
Madison, was two years old. The court
awarded the parents shared placement on alternating weeks. Since Rick lives in Oconomowoc and Jennifer
lives in Pleasant Prairie, shared placement became unworkable once
¶3 Rick contends the trial court erroneously exercised its
discretion in terminating the shared placement arrangement. He argues that the court gave undue weight to
the presence of
¶4 If circumstances make it impractical for the parties to
continue to have substantially equal physical placement, the court may modify
the order if it is in the best interest of the child. Wis.
Stat. § 767.451(2)(a) (2007-08).[1] Determining what course of action is in a
child’s best interests is a matter within the trial court’s discretion and we
may not substitute our judgment for the trial court’s properly exercised
discretion. Green v. Hahn, 2004 WI
App 214, ¶27, 277
¶5 Rick first argues that the court gave undue emphasis to
¶6 In determining placement, a court “shall consider all facts relevant to the best interest of the child.” Wis. Stat. § 767.41(5)(am). Factors the court must consider include: (1) the parents’ wishes; (2) the child’s wishes; (3) the child’s interaction and interrelationship with parents, siblings and others who significantly affect the child’s best interest; (4) the quantity and quality of time the parents have spent with the child; (5) the child’s adjustment to home, school, religion and community; (6) the child’s age and developmental and educational needs; (7) whether the mental or physical health of another in the custodial home will affect the child’s well-being; (8) regular physical placement to provide stability; (9) availability of child care services; (10) cooperation between the parties; (11) each party’s support of the child’s relationship with the other parent; and (12) other factors the court may deem relevant. See id.
¶7 The trial court made the following findings: (1) both parents wanted the child; (2) because Madison was only five, it would be unfair to ask her to make a choice; (3) Emma and Annie play a significant role in Madison’s life and it would be “a big advantage” to all be at the same school; (4) Rick and Jennifer had spent roughly the same amount of time with Madison, and had equal custodial roles and decision making; (5) Madison had adjusted well to shared placement and would continue to be well-adjusted; (6) it was important to enroll Madison in a school where she could get “the best of both worlds,” and her stepsisters’ presence and mother’s volunteer work at Southport tipped the scales in that direction; (7) any negative interaction between Madison and her stepsisters was “normal behavior” for siblings; (8) transferring primary placement to Jennifer would afford predictability and stability for Madison; (9) child care was not an issue; (10) until the placement petitions were filed, the parties’ cooperation and communication were good; and (11) there was no indication of abuse or drug or alcohol issues.
¶8 The court then noted its authority to indicate which of the
factors it accorded the most weight and observed that it would “go back to the
households.” Trial testimony disclosed
that Rick works Monday through Friday from 7:30 a.m. until 4:30 p.m., and one
weekend a month. Jennifer works 5:30
p.m. to 10:00 p.m. Tuesdays, Wednesdays and Thursdays, and every other
weekend. Rick, who also had remarried,
testified that his wife typically drove
¶9 The “major factor” in the court’s view was Emma’s and Annie’s
presence in the home. The court
commented that the girls would “give [
¶10 Rick also argues that the trial court gave the GAL’s recommendation short shrift. He notes that the GAL “properly placed weight” on Jennifer’s proposed placement schedule which was “not … as generous in her secondary placement proposal with [Rick] as [Rick] was with her,” but the trial court gave that factor no weight. He also complains that the trial court did not adopt the GAL’s negative view of Jennifer’s work schedule. On that point, the court opined:
It’s nothing major.
So she’s gone three days during the week at night. There’s nothing wrong with that. It sets an example that mom is earning a
living. What’s wrong with that
example? And there’s a reliable person
in the household when she’s gone…. So
the work schedule to me is not that moving for me.
¶11 The weight of the testimony is peculiarly within the province
of the trial court acting as the trier of fact.
Wiederholt v. Fischer, 169
¶12 In cases such as this, the trial court shoulders the Solomonic
task of exercising its discretion to determine what is in the child’s best
interest. The court here applied the
correct legal standard to the facts of record and reached a reasonable result. See Hughes,
223
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.