COURT OF APPEALS
DECISION
DATED AND FILED
October 7, 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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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In re the support of Bryanna Tipperreiter:
Karie S. Anderson,
Petitioner-Appellant,
v.
Edward J. Tipperreiter,
Respondent-Respondent.
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APPEAL
from an order of the circuit court for Racine County: john
s. jude, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Snyder, J.
¶1 PER CURIAM. Karie S. Anderson has appealed
from an order awarding custody and physical placement of her daughter, Bryanna,
the non-marital child of Anderson
and the respondent, Edward J. Tipperreiter.
The order awarded joint legal custody to Anderson and Tipperreiter, who
reside in Wisconsin and Florida, respectively. It awarded primary physical placement to
Tipperreiter, with secondary physical placement to Anderson.
It established one placement schedule for the period up to August 23, 2009, and a
different schedule after that date.
Beginning September 1,
2009, Anderson
was also required to begin paying child support of $140 per month. We affirm the order.
¶2 Bryanna was born on January 15, 2005. A voluntary acknowledgement of paternity was
filed at the time of her birth. The
parties lived together off and on during the period before and after Bryanna’s
birth.
¶3 In February 2006, Anderson
petitioned for sole custody and primary physical placement of Bryanna. In May 2006, Tipperreiter filed a
counter-petition for sole custody and primary physical placement. In May 2006, the parties also stipulated that
Anderson would be granted sole temporary custody and primary physical placement
of Bryanna, but that if Anderson was sentenced to a term of incarceration based
on criminal proceedings pending against her in federal court, Tipperreiter
would be granted temporary sole custody and primary physical placement of Bryanna,
and would be permitted to remove her to Ohio, where he was then living.
¶4 In late July 2006, Anderson
was sentenced to four months in prison and five years of supervision for bank
fraud. On July 28, 2006, the day after Anderson’s sentencing, a
hearing was held before a court commissioner.
In an order granted on July 28, 2006 and entered on September 1, 2006,
the court commissioner awarded joint legal custody to the parties, and awarded
primary physical placement to Tipperreiter.
The order provided for Bryanna’s transfer to Tipperreiter on July 29,
2006, and granted him permission to relocate her to Ohio.
¶5 On September 18, 2006, after Anderson’s
incarceration, Tipperreiter filed a notice of intent to move with Bryanna to Florida, where his
parents live. No response in opposition
was filed by Anderson, and Tipperreiter moved to
Florida in
late 2006, residing first with his parents and subsequently in a two-bedroom
apartment with Bryanna, near his parents and sister. Tipperreiter, who is an FAA licensed flight
dispatcher, also obtained employment in Florida.
¶6 After Anderson’s
release from prison, the parties alternated placement of Bryanna every three
weeks pending trial of custody and placement.
Trial was subsequently held in the circuit court over the course of
four-and-a-half days. In a written
decision and order incorporating previous oral findings of fact and conclusions
of law, the trial court awarded the parties joint legal custody of Bryanna, and
awarded primary physical placement to Tipperreiter. It awarded specific periods of physical
placement to Anderson
for the period up until August 23, 2009, and awarded different periods of
placement for the period after August 23, 2009.
Periods of placement after August 23, 2009, were structured around a
school year calendar, affording Anderson
placement at Christmas break, spring break, some holidays, nearly the entire
summer break, and one additional vacation week.
Commencing September 1, 2009, Anderson
was also required to pay $140 per month in child support based on 109
overnights per year.
¶7 A trial court has wide discretion in making a physical
placement decision. Wiederholt v. Fischer,
169 Wis. 2d
524, 530, 485 N.W.2d 442 (Ct. App. 1992).
An exercise of discretion will not be upset unless it represents an
erroneous exercise of discretion or the trial court misapplied the law. Id. This court will affirm the trial court’s
discretionary determination if it applied the correct legal standard to the
facts of record and reached a reasonable result. Keller v. Keller, 2002 WI App 161,
¶6, 256 Wis. 2d
401, 647 N.W.2d 426. However, a trial
court erroneously exercises its discretion when it bases its determination upon
an error of law. Koeller v. Koeller, 195 Wis. 2d 660, 664,
536 N.W.2d 216 (Ct. App. 1995).
¶8 As a reviewing court, we search the record for reasons to
sustain the trial court’s exercise of discretion. Keller, 256 Wis. 2d 401, ¶6. The credibility of the witnesses and the
weight of their testimony is determined by the trial court, which has a
superior opportunity to observe the demeanor of the witnesses and gauge the
persuasiveness of their testimony. Patrickus
v. Patrickus, 2000 WI App 255, ¶26, 239 Wis. 2d 340, 620 N.W.2d 205. We search the record for evidence to support
the findings made by the trial court, not for evidence to support findings that
the trial court could have, but did not, make.
Id. The trial court’s findings of fact will be
disturbed only if they are clearly erroneous. Wiederholt, 169 Wis. 2d at 531.
¶9 Anderson
contends that the trial court committed legal error by entering an order
prospectively reducing her placement time beginning in the fall of 2009. She also contends that the trial court
erroneously exercised its discretion by awarding primary physical placement to
Tipperreiter, contending that it failed to appropriately consider the factors
set forth in Wis. Stat. § 767.41(4)(a)2.
and (5) (2007-08),
and made findings that were contrary to the record. She also contends that the trial court erred
by prospectively modifying child support.
We reject all of Anderson’s
arguments.
¶10 Anderson’s
first argument is that the trial court erred by entering an order which reduced
her placement time beginning in the fall of 2009. She contends that by doing so, the trial
court made an award that violated the prohibition on prospective and contingent
custody or placement awards set forth in Koeller, 195 Wis. 2d at 665-67. She contends that placement decisions must be
based upon historical information and present facts, not conjecture,
predictions, or contingencies. She
contends that because Bryanna was not yet school age when the trial court made
its decision, and would not be legally required to attend school in the fall of
2009, the trial court’s decision as to placement after August 23, 2009 was
premised on prospective, unknown events.
¶11 We do not agree that the trial court’s placement decision
violates the prohibition on contingent, prospective awards. In Koeller, a mother who was suffering
from terminal cancer and whose ex-spouse suffered from mental illness moved the
trial court to revise a divorce judgment to grant custody to her sister in the
event of her incapacity or death. Id. at
661. The trial court granted the
prospective custody award. Id. at
661-62. This court reversed the trial
court’s order, concluding that custody determinations must be based upon the
trial court’s assessment of historical and present factors related to the
child’s well-being and best interest. Id. at
667. We concluded that the law does not
authorize a future change in custody based on circumstances that might not
exist when the order is to take effect. Id. at
668.
¶12 In contrast to the situation in Koeller, the
trial court’s placement decision was not contingent on any future event,
including enrollment in school. While
the trial court stated that it “anticipated” that Bryanna would be attending
school on a full or part-time basis in the fall of 2009, it expressly declined
to make its placement decision contingent on school enrollment.
¶13 Rather than being a contingent placement award, the trial
court’s decision reflected its recognition that in the fall of 2009 Bryanna
would be close to five years old, and that this is an appropriate age for a
child to attend a kindergarten or pre-kindergarten type of school program. It also reflected the fact that primary
placement was being awarded to Tipperreiter, who resides in Florida.
By establishing a placement schedule constructed around the standard
school year, the trial court was establishing a placement schedule appropriate
for Bryanna’s age, which would enable Tipperreiter to place her in a
kindergarten or pre-kindergarten program in Florida.
However, the placement order did not mandate school enrollment, and was
not contingent upon such enrollment.
Instead, the trial court’s placement decision recognized the existing
circumstances of Bryanna’s life, including the fact that she was approaching
school age, and established a schedule appropriate for that age.
¶14 Anderson’s
next argument is that the trial court erroneously exercised its discretion by
failing to appropriately consider the factors set forth in Wis. Stat. § 767.41(4)(a)2. and
(5) and by making findings that are contrary to the greater weight of the
credible evidence. She contends that,
based on the evidence, primary physical placement must be awarded to her.
¶15 Contrary to Anderson’s
argument, we conclude that the trial court provided a detailed, thorough, and
meaningful discussion of the factors relevant to its placement decision. Its findings of fact are not clearly
erroneous and, based upon its findings, it could reasonably conclude that
awarding primary physical placement to Tipperreiter was in the best interest of
Bryanna. Because its decision is
reasonable and based upon facts of record, we conclude that it properly
exercised its discretion in making its placement decision.
¶16 In allocating periods of physical placement, a trial court is
required to set a schedule that allows the child to have regularly occurring,
meaningful periods of physical placement with each parent and that maximizes
the amount of time the child may spend with each parent, taking into account
geographic separation and accommodations for different households. Wis.
Stat. § 767.41(4)(a)2. As
provided in Wis. Stat. § 767.41(5),
it is required to consider all facts relevant to the best interest of the child
and the factors delineated in § 767.41(5).
¶17 The trial court fully complied with its statutory
responsibilities. It considered the
wishes of the parents and the amount and quality of the time spent by each
party with Bryanna in the past, noting that Anderson wanted to be restored to
the custodial position she enjoyed before her incarceration, but that
Tipperreiter had stepped forward and assumed that responsibility when she was
incarcerated. It found that Tipperreiter
had acted out of a sincere concern for Bryanna’s well-being and had
consistently fulfilled his commitment to Bryanna since that time, findings that
are supported by evidence in the record. It further found that Tipperreiter’s move to Florida was reasonable,
enabling him to seek employment and obtain the assistance of his parents in
raising Bryanna.
¶18 The trial court found that Bryanna was well-adjusted and
healthy, that she was comfortable with both parents, and that both parents had
taken good care of Bryanna and had the capacity to meet her needs. It considered that Bryanna had a particularly
close relationship with Anderson’s
mother, but that her relationships with her paternal grandparents was also
significant.
¶19 In evaluating the parties’ relationship with each other and
Bryanna, the trial court found that Bryanna previously had been subjected to a
fractious relationship between Anderson and Tipperreiter. However, it found that both of the parties
had made changes and had settled into a relatively stable lifestyle for
Bryanna. Nevertheless, it also found
credible concerns expressed by the guardian ad litem and court-appointed
custody evaluator about Anderson’s
veracity and the impact of her decision to move in with a boyfriend shortly
after her release from prison. Evidence
indicated that she had failed to disclose her living arrangements, and that the
boyfriend with whom she was living had a criminal record that included, among other
things, a drug conviction, convictions for disorderly conduct and receiving
stolen property, and multiple convictions for driving while intoxicated.
¶20 The trial court expressly acknowledged the goal of maximizing
periods of placement with each parent, but also recognized the challenges posed
by the geographical distance between the parties’ residences. It recognized that Anderson’s
mother was available to provide day care in Wisconsin
and that Bryanna had an important relationship with her, but found that Tipperreiter
had also provided Bryanna with appropriate care in Florida, where she attended a program that
was a combination of day care and preschool.
It also noted that because Bryanna was growing older, the socialization
that comes with attending school or day care with peers becomes a more
important factor.
¶21 The trial court also considered the evidence and argument
concerning the parties’ communication with each other and support for each
other’s relationship with Bryanna. It
acknowledged that communication had been poor and divisive in the past. While indicating that it had concerns about Anderson’s veracity, it also expressed concern with
Tipperreiter’s past tendency to demean and control Anderson, as evidenced by phone messages
introduced at trial. However, the trial
court concluded that the placement schedule established by it would limit their
personal interaction, and reasonably concluded that this could enable them to
communicate more positively with each other in the future.
¶22 The trial court also considered Anderson’s testimony that Tipperreiter had
engaged in domestic abuse as defined in Wis.
Stat. § 813.12(1)(am)6. by holding a pizza cutter to her throat
during an argument in January 2006. The
parties discuss the evidence regarding this incident at length in their
briefs. However, a review of the trial
court’s decision indicates that while it accepted as fact that Tipperreiter was
cutting a pizza with a pizza cutter in his hand when an argument ensued,
causing Anderson to be afraid, it also implicitly found that the evidence did
not support a finding that Tipperreiter threatened Anderson with the pizza
cutter as testified by Anderson, or threatened to physically harm her. The trial court’s finding that no
interspousal battery or domestic abuse occurred is therefore not clearly
erroneous. The trial court also found that Tipperreiter
did not have an alcohol problem, thus rejecting Anderson’s testimony on the subject. Like its other findings, this finding is not
clearly erroneous.
¶23 In weighing the placement factors, the trial court also
considered that both the guardian ad litem and the court-appointed custody
evaluator recommended that primary physical placement be awarded to Tipperreiter. Ultimately, it concluded that primary
placement with Tipperreiter was in Bryanna’s best interest. Because this meant she would reside primarily
in Florida,
it established a placement schedule that took into account the geographical
distance between the parties, and the fact that Bryanna was approaching school
age. Based upon the trial court’s findings, and
because it considered all appropriate factors under Wis. Stat. § 767.41(5), no basis exists to conclude that
the trial court erroneously exercised its discretion by awarding primary
placement to Tipperreiter, with secondary placement to Anderson in accordance
with the schedule established by it.
¶24 Anderson’s
final argument is that the trial court erred by prospectively modifying child
support. However, as recognized by Anderson, the requirement
that she begin paying child support on September 1, 2009 was based on the
change in the placement schedule that occurred on August 23, 2009. Because the change in placement was
permissible and reduces the amount of time that Bryanna is with Anderson, Anderson
has shown no basis to disturb the child support award.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.