COURT OF APPEALS DECISION DATED AND FILED July 1, 2010 David
R. Schanker Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT IV |
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In re the marriage of: Jeffrey M. Olsen,
Petitioner-Respondent, v. Victoria L. Olsen,
Respondent-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Vergeront, Lundsten and Higginbotham, JJ.
¶1 PER CURIAM. Victoria Olsen appeals the custody and placement components of the judgment divorcing her from Jeffrey Olsen. She specifically challenges two evidentiary decisions that precluded certain evidence of alleged domestic violence by Jeffrey from being admitted or considered by the court. She further argues that the refusal to consider her evidence improperly relieved the court of having to determine which party was the primary physical aggressor under Wis. Stat. § 767.41(2)(d)2. (2007-08)[1] for the purpose of applying a presumption against awarding custody to a parent who has engaged in domestic violence. We conclude that there was no reversible error for the following reasons.
¶2 The first decision
¶3 Because the circuit court is in the best position to observe
witness demeanor and gauge the persuasiveness of testimony, it is the “ultimate
arbiter” for credibility determinations.
Johnson v. Merta, 95
¶4 The second decision
¶5 According to a letter attached to
¶6
¶7 Jeffrey contends that the absence of the attorney’s testimony was at most harmless error because Victoria herself testified about the same incident. We note, however, that the circuit court specifically stated that it was disregarding both parties’ testimony about any events that were not corroborated by a third party. Therefore, we are not persuaded that the attorney’s testimony would have been merely cumulative. Nonetheless, we conclude that the attorney’s testimony would not have affected the outcome of the appeal.
¶8 First, we do not see how Jeffrey could have been deemed the “primary physical aggressor” in terms of domestic abuse based on an incident in which he engaged in an inappropriate “game” that included no physical contact, as opposed to an actual physical battery committed by Victoria that had been documented by police. Moreover, the circuit court explained that it was placing heavy emphasis on the expertise of Dr. Michael Nelson, who performed the custody evaluation, as well as the opinion of the guardian ad litem, who both recommended that Jeffrey have sole custody and primary physical placement. We see no reasonable probability that additional testimony about the parking lot incident would have caused the court to deviate from those recommendations. We therefore conclude that the exclusion of the attorney’s testimony was at most harmless error.
By the Court.—Judgment 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] The exhibit list shows the letter was received into evidence, although neither party directs our attention to the point in the proceeding where it was offered and accepted.
[3]