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COURT OF APPEALS DECISION DATED AND FILED November 4, 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 Neubauer, P.J.,
¶1 PER CURIAM. Cynthia H. and Steven H. appeal
from the order of the circuit court that dismissed their action against Joshua
O. and Kristine O. for grandparent visitation on the grounds that
¶2 This is the third incarnation of a custody and placement
dispute between Cynthia and her daughter, Kristine, over Kristine’s son. In this case, Cynthia and her husband brought
a petition for grandparent visitation under Wis.
Stat. § 767.43(1) (2007-08).[1] The circuit court determined under Wis. Stat. § 822.27 that
¶3 In their appeal to this court, Cynthia and Steven argue that: (1) the circuit court did not consider that it had continuing jurisdiction in a child custody case under Wis. Stat. § 822.22, but rather addressed the jurisdiction issue under § 822.27; (2) the court considered information that was not contained in sworn affidavits, including decisions and orders from other courts, and statements contained in an attorney’s affidavit; (3) the record was devoid of evidence to support the court’s determination that Rhode Island was a more convenient forum for this dispute, including no evidence that the child or the parents resided in Rhode Island; and (4) the court did not properly address the statutory criteria. Two main themes unite these various arguments. First, that there was no proper evidence in the record from which the circuit court could determine that the child and his parents resided in Rhode Island at the time the visitation petition was filed and, second, that the circuit court improperly considered evidence from outside the record in the form of decisions and orders of the circuit court in other cases and statements from counsel.
¶4 We conclude that there was evidence in the record from which
the circuit court could find that the child and his parents reside in
BACKGROUND
¶5 In order to understand the issues presented by this appeal, it is necessary to understand the timeline of the procedural history of the case, as well as some of the procedural history of the two related cases.[2] Judge Reilly presided over this case, while Judge Mawdsley presided over the related guardianship and termination of parental rights case.
August 6, 2008 – Judge Mawdsley made an oral ruling in the guardianship case denying permanent guardianship to Cynthia.
August 14, 2008 – Cynthia H. and Steven H. filed a petition against Joshua O. and Kristine O. for grandparent visitation under Wis. Stat. § 767.43(1). The petition stated, in part:
[A]s a result of a contested
hearing in the
August 20, 2008 – Judge Mawdsley entered the order in the guardianship case terminating the grandparents’ guardianship and ordering that a transition plan be implemented to return Clive to his parents.
August 25, 2008 – Cynthia and Steven
filed a petition for appointment of a guardian ad litem in the visitation case,
noting that the parents “reside out of state,” and that “the final transition”
of the child to the parents occurred that day.
The petition lists the parents address in
August 28, 2008 – Judge Reilly
appointed the same GAL. The same day, Cynthia and Steven also moved to
terminate the appointment of the GAL.
Their attorney attached an affidavit that stated in one paragraph: “Now that the child has been returned to the
birth parents in
September 11, 2008 – Joshua and
Kristine answered the visitation petition and argued that
September 12, 2008 – Cynthia and
Steven filed an order to show cause for a temporary order for visitation. Cynthia submitted an affidavit in support
that discussed Judge Mawdsley’s order in the guardianship case. Further, the affidavit stated that the child
was returned to his parents on August 25 and moved with the parents to
September 22, 2008 – Judge Mawdsley dismissed Cynthia’s petition to terminate Joshua and Kristine’s parental rights.
September 25, 2008 – Joshua and Kristine moved to dismiss the visitation case for lack of jurisdiction and responded to Cynthia’s motion for a temporary order allowing visitation. Their attorney included her own affidavit for each motion.
October 16, 2008 – Judge Mawdsley determined that Cynthia and Steven had not complied with his order of August 20 and that their failure to cooperate had caused the failure of the court ordered transition of the child to his parents in the guardianship case.
October 17, 2008 – Joshua and Kristine moved to dismiss the visitation case asking the court to “decline jurisdiction” under Wis. Stat. § 822.27.
December 5,
2008 – Judge Reilly entered an order that determined that
March 17, 2009 – The court dismissed the grandparent visitation petition.
ANALYSIS
¶6 Cynthia and Steven first argue that the circuit court erred when
it dismissed their petition because it did not consider the requirements of Wis. Stat. § 822.22, the
exclusive and continuing jurisdiction statute.
That statute says that “a court of this state that has made a child
custody determination consistent with [Wis.
Stat.] s. 822.21 or s. 822.23 has exclusive or continuing jurisdiction
over the determination” until one of two factors has occurred. Section 822.21 is the initial child
custody jurisdiction determination, and § 822.23 establishes a
¶7 Cynthia’s and Steven’s argument, based on Wis. Stat. § 822.22, suggests that
the circuit court determined that it did not have jurisdiction over the
case. That is a misstatement of what
occurred. The circuit court acknowledged
that it had jurisdiction, but declined to exercise it because it determined
that
A court of this state that has
jurisdiction under this chapter to make a child custody determination may decline
to exercise its jurisdiction at any time
if it determines that it is an inconvenient forum under the circumstances and
that a court of another state is a more appropriate forum. (Emphasis added.)
This statute allows a court
that already has jurisdiction, i.e., under Wis.
Stat. § 822.21, to decline to exercise that jurisdiction if it
determines that
¶8 Cynthia and Steven also argue in a couple of different contexts that the circuit court erred when it considered the facts from the guardianship and TPR cases and that there was no independent evidence in the record that established the fact that Joshua, Kristine, and their son all reside in Rhode Island, or that they resided in Rhode Island at the time Cynthia and Steven filed the visitation petition. We also reject these arguments.
¶9 First, Cynthia and Steven base their argument on their assertion that the date that controls is the date they filed their visitation petition. In support of this argument, they cite a case that discusses the date for determining whether jurisdictional requirements have been met. Cynthia and Steven again ignore that the statute on which the court relied, Wis. Stat. § 822.27, allows a court that has jurisdiction to decline to exercise that jurisdiction at any time. In other words, by applying this statute, the circuit court accepted that it had jurisdiction, but determined that there was a more appropriate forum. The fact that Joshua and Kristine may have been in Wisconsin on August 14, 2008, waiting for a determination in guardianship proceeding brought against them by Cynthia and Steven, is not relevant to the court’s decision to decline jurisdiction under § 822.27. The statute plainly states that the decision to decline may be made “at any time.” August 14 is not the controlling date for that determination.
¶10 Secondly, there was evidence in the record, including
statements in documents filed by Cynthia and Steven, that Joshua, Kristine, and
their son all resided in Rhode Island, and did so when the circuit court made
the forum determination. The petition
for the appointment of a guardian ad litem submitted by Cynthia and Steven to
the court on August 25, 2008, states:
“The parents reside out of state,” and “the parties made the final
transition of the infant from the grandparents to the parents on August 25, 2008.” The affidavit Cynthia submitted in support of
her order to show cause states: “On
August 25, 2008, the birth parents moved the child to the State of
¶11 Cynthia and Steven also argue that the court improperly “took
judicial notice” of the decisions Judge Mawdsley made in the guardianship and
TPR cases and improperly considered as evidence statements in the affidavit
filed by Joshua’s and Kristine’s attorney.
Again, Cynthia and Steven make this argument in support of their claim
that there was no evidence that the parents and child resided in
¶12 Secondly, Cynthia and Steven based their request for visitation in part on Judge Mawdsley’s decision. Their petition states:
[A]s a result of a contested hearing in the
Cynthia and Steven cited to Judge Mawdsley’s decision as one of the bases of their petition for visitation, cited it in their request for the appointment of a guardian ad litem, and in support of their argument that the court had continuing and exclusive jurisdiction. They cannot now argue that the court improperly considered that decision.
¶13 Cynthia and Steven also argue that the court improperly considered statements made by Joshua’s and Kristine’s counsel in affidavits. Again, because we have already determined that there was sufficient evidence from Cynthia, we need not address this argument in detail, other than to note that Cynthia and Steven have mischaracterized both counsel’s statements and the circuit court’s reliance on them. The cases they cite in support of this argument are similarly inapposite. While one of counsel’s affidavits contains argument, she was not asking the court to accept the argument as a statement of evidentiary fact, and the circuit court did not do so. We see nothing improper in counsel’s affidavits.
¶14 Most importantly, Cynthia and Steven never challenge the fact
that the child resides with his parents in
¶15 Cynthia and Steven also argue that the circuit court did not
consider the appropriate statutory criteria.
We review the circuit court’s determination that
¶16 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] For a full explanation of the facts of the underlying dispute, see our opinion in Cynthia H. v. Joshua O., appeal No. 2008AP2456-AC (Nov. 4, 2009).
[3] Cynthia and Steven do not explain why they did not file the petition in the ongoing proceeding, but instead started a new proceeding in the circuit court.