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COURT OF APPEALS DECISION DATED AND RELEASED December
7, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0665
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN RE
THE MARRIAGE OF:
KARIE
(MARTIN) KAMMERER,
Petitioner-Appellant,
v.
ROBERT
A. MARTIN,
Respondent-Respondent.
APPEAL
from an order of the circuit court for La Crosse County: JOHN J. PERLICH, Judge. Affirmed in part; reversed in part and
cause remanded.
Before
Dykman, Sundby, and Vergeront, JJ.
VERGERONT,
J. Karie Kammerer appeals from an order
modifying the physical placement of her three minor children. Under the prior order, entered pursuant to a
stipulation, the children spent half of the time with Karie Kammerer and half
of the time with their father, Robert Martin.[1] The modified order granted primary physical
placement to Robert.
Karie
contends that the trial court erroneously exercised its discretion in granting
primary physical placement to Robert rather than to her, and in authorizing
Robert to determine whether the children's normal educational activities could
be interrupted for participation in religious events after the children reach
seventh grade. Karie contends that
granting this authority to Robert violates the children's free exercise of
religion. Karie also asserts that the
trial court erred as a matter of law in determining that her position on the
motion to modify physical placement was frivolous and in not taking her ability
to pay or Robert's needs into account in assessing all of Robert's attorney
fees, expert witness fees and all guardian ad litem fees against her.[2]
We
affirm the portion of the trial court's order granting Robert primary physical
placement, including the provision giving Robert the authority to determine if
the children could attend religious events that interfere with educational
activities. We conclude this is not an
erroneous exercise of discretion and does not violate the children's free
exercise of religion. We reverse the
trial court's assessment of Robert's attorney fees, expert witness fees and
guardian ad litem fees against Karie because we conclude her motion for primary
physical placement was not frivolous.
We remand for further proceedings with regard to attorney fees.
BACKGROUND
Karie and Robert were
divorced on January 9, 1989. The parties agreed at that time to joint legal
custody of their minor children:
Elizabeth, born December 4, 1981; Shawn, born February 4, 1984; and
Heather, born September 27, 1987, with Karie having their primary physical
care. Karie remained living in the
marital residence in Holmen with the children.
In
May 1993, Karie gave notice of her intent to move to Waukon, Iowa, which is
sixty-four miles from Holmen.[3] Karie had formed a relationship with Ken
Kammerer and he lived in Waukon, Iowa.
Robert filed an objection to the proposed move. A guardian ad litem was appointed for the
children. The court appointed a
psychologist, Dr. Kipp Zirkel, to examine Karie, Robert and the children for
the purpose of determining the appropriateness of removing the children from
the State of Wisconsin, as well as physical placement of the children. Robert moved to modify the divorce judgment
to permit him to remain in the residence in Holmen and to have primary physical
placement of the children. At a hearing
on June 15, 1993, the court ordered that the children not be moved permanently
from the State of Wisconsin and attend school in La Crosse County in the fall,
pending further order of the court.
The
hearing was scheduled for August 6, 1993.
Prior to that hearing, the guardian ad litem submitted his report
concluding that it was in the best interests of the children that they remain
in the State of Wisconsin and that primary physical placement be with
Robert. The report stated that Dr.
Zirkel would testify that the children should remain in Holmen with their
father. An evidentiary hearing did not
take place on August 6, 1993, because the parties entered into a stipulation
pursuant to which joint legal custody of the minor children would continue and
each parent would have physical placement of the children one-half of the time,
with the children continuing to be Wisconsin residents and attend schools in
the Holmen school district.
Karie
had married Ken Kammerer on June 20, 1993, but she remained living in
Holmen. In April 1994, Karie filed a
notice of intent to move the children to Waukon, Iowa, and a motion to award
her primary physical placement of the children. She moved to Waukon in June of 1994 to live with her husband, and
the children remained primarily with their father in Holmen. Pursuant to a temporary order entered on
December 7, 1994, a physical placement schedule was established for the
children to visit their mother on weekends.
JANUARY 6, 1995
HEARING
At
the hearing on Karie's motion held on January 6, 1995, Karie testified that in
her opinion the children should be placed primarily with her because she could
provide the children with stability.
She intended not to work in order to stay home and take care of the
children. She stated her husband was in
agreement with this. She also explained
that she and her husband had a very religious lifestyle which she believed was
important for the children. She
testified that she has taken the children to her church, the Worldwide Church
of God, and has taken them every week when she has had them with her. Her church celebrates services on Saturdays
rather than Sundays. Robert did not
have an interest in the children's religious and moral training as she did, she
testified. She understands Robert wants
the children to learn about Christmas and Easter and takes them to his church
at times, and she has never objected to that.
Karie
testified that Robert worked long hours, did not provide discipline for the
children as she did, and drank excessively during their marriage. According to Karie, the children told her
that they wished to live with her in Iowa.
Her home in Iowa is on a big corner lot with plenty of room, schools are
nearby, and there are children in the neighborhood with whom her children were
developing friendships. Her children
had a good relationship with her husband.
In Karie's view, the children were not adjusting well to the schedule
stipulated to in August 1993 because it was difficult for them to be away from
her fifty percent of the time. She felt
they were confused by the schedule and that their behavior had changed, with
more aggressiveness, anger, fighting and crying.
Maila
Kuhn, a parent-child facilitator, testified that she had met with Karie and her
husband, and visited Karie's home in Holmen with the children there. Her role was to help them with parenting
skills and establishing a family unit.
She had administered a parenting skills test to both Karie and her
husband, testing their parenting skills.
In the pre-test, they both scored in the middle of the normal
range. On the test after the meetings
with her, both their scores had increased and Karie scored above normal. Based on the test results, she had no
concern about primary placement being with Karie. In her view, a home in which a parent was married was a more
stable environment for children than a home in which their parent was not
married.
Karie's
pastor and two friends testified on her behalf, describing her relationship
with her children in positive terms.
Karie's husband also testified.
He described his relationship and involvement with the three children,
stating that he felt he and Karie could provide the children with a good family
atmosphere. He, like Karie, is a member
of the Worldwide Church of God.
Robert
testified that it was in the children's best interests to remain in Holmen
where they have been all their lives, with their friends and in the same school
district. Robert felt the children did
very well with the equal placement arrangement under the August 1993
stipulation. The children became upset
when Karie told them that they were going to be moving with her to Iowa. In Robert's view, Karie has not accommodated
the children's activities in Holmen, outside of church activities, when they
are with her. He said the children had
expressed anxiety to him over this but he felt they were afraid to bring it up
with Karie.
Robert
described instances of Karie being physically aggressive with the
children--breaking a spoon when she spanked one child, slapping the kids with
her open hand, and spanking beyond the point of what he considered necessary. He felt the children were very aware that
they had to watch their mother's temper and not upset her. He described instances when Karie refused to
let him see the children when she had primary physical placement.
Robert
testified that his work schedule, when the children are with him, is Monday
through Friday, 8:00 a.m. to 2:45 p.m., and no work on the weekends. That has been his schedule since July
1993. Robert lives in a two-bedroom
apartment in Holmen. He purchased a
house in Holmen in May of 1994 with his girlfriend, Kathy Mosier, and his plans
are, once the court proceedings are through, to marry her and move into the
house. He feels it is best for the
children to keep things as they are until the litigation is over. Robert does not live with Kathy, but on
occasion his children have stayed overnight at the house where Kathy
lives. He described his children's
relationship with Kathy to be good, although he noted that Shawn had some
jealousies toward her.
Robert
testified that he belongs to the Holmen Lutheran Church and has occasionally
taken the children to church with him because he would like them to see his
religion. With regard to his alcohol
consumption, Robert stated that fifteen years ago he used to go "out with
the boys," but he does not drink much anymore.
The
guardian ad litem called Tim Lazarcik as a witness. Lazarcik is the guidance counselor at the Holmen Elementary
School and knows Shawn and Heather. He
described Robert to be an active parent in the school, above average in his
participation at the school. All else
being equal, he thought that the children are better off not moving.[4]
Colin
Ward, a family therapist who had worked with the children on and off for over a
year, testified. The purpose of his
counseling them was to provide a safe and supportive environment as they
processed the conflict between their parents.
He did not express an opinion as to which household, Karie's or Robert's,
would be a better place for the children; the children had not indicated to him
they had problems with either parent other than normal adjustments. He did feel that staying in Holmen would
provide the children with stability, but that judgment was not based on the
adequacy of either parent.
Jim
Harrison, director of the counseling program at Lutheran Hospital,
testified. He initially became involved
with Karie and Robert when he was counseling them for the purpose of
determining if there could be a reconciliation. He met with Karie only twice.
When she concluded there could not be a reconciliation, he continued to
work with Robert and had seen him thirty-three times between April of 1993 and
the fall of 1994. In his opinion,
Robert was a well-adjusted individual.
Initially Robert was working excessively and Harrison did not believe he
could effectively parent the children for that reason. But Robert has substantially modified his
work, come to a better understanding of the divorce, and is a conscientious and
concerned parent.
Dr.
Zirkel, the court-appointed psychologist, testified. He did a custody and psychological evaluation in the summer of
1993, and updated that with a written report prepared in July 1994. He had spoken with Suzanne Wobig and Colin
Ward, the children's counselors, since the time he prepared the report and the
things he learned from them had not altered his recommendation. His conclusion was that it was in the best
interests of the children to remain in Holmen.
The desire to keep the same school district and community, neighbors and
friends for the children was one of the factors he relied on in arriving at his
opinion, but it was not the primary reason.
The primary reason was that the children have a warm and close relationship
with their father and their father went out of his way to ensure that the
children had contact with their mother.
In his view, though the children have a close relationship with their
mother, they perceived it as a more conditional relationship. Dr. Zirkel stated that the children, all
three individually, had expressed to him worries about their mother's
temper. It was his opinion that Robert
had made a more successful effort to shield the children from the conflict
between the parents and had a greater interest than Karie in helping the
children maintain contact with the other parent.
Dr.
Zirkel did take into account the fact that Karie could remain home and be
available for her children before and after school and on weekends. He acknowledged that all other conditions
being equal, it is preferable for the children to be with a parent rather than
a paid sitter or day care provider. He
also acknowledged that, because of the third bedroom in Karie's home, it provided
a better physical environment for the children than Robert's two-bedroom
apartment.
Robert's
employee testified, describing Robert's work hours consistent with Robert's
testimony. A neighbor described
Robert's involvement with his children's activities.
At
the close of the hearing, the trial court granted primary physical placement of
the children to Robert, with periods of physical placement with Karie in
Iowa. The court adopted the placement
schedule recommended by the guardian ad litem and Dr. Zirkel with certain
modifications.
The
trial court found that the reason for Karie's move to Iowa was for her
convenience, and that while it would not be quite as convenient for her and her
husband to live in Holmen, it could be done.
It found there was no benefit to the children in the move. The court did not think Karie appreciated
the disruption the move would have on the children and found she was placing
her interests over the children's interests.
The court found that circumstances now made it impractical for the
parties to have substantially equal periods of placement and that modification
of the equal placement order was in the best interests of the children. The court found that the children wanted to
spend a lot of time with both parents but that they wanted to stay where they were
and still spend time with their mother to the extent that they could. The court found that the children were doing
well socially, academically and behaviorally with the current placement, and
that the move would disrupt these achievements and would not benefit them. The court stated that it accepted
Dr. Zirkel's report in its entirety, as well as Ward's testimony and the
recommendations of the guardian ad litem.
The court also found that Robert was more likely to ensure that the
children have a relationship with their mother than the other way around. The court concluded that it was not in the
children's best interests to move to Iowa.
The
court then considered the issue of attorney fees, guardian ad litem fees and
expert witness fees. The court stated
that it had the authority under § 767.262, Stats., to order one party to pay the attorney fees and
expert witness fees of the other; that it had authority under
§ 767.045(6), Stats., to
order payment of guardian ad litem fees and expert witness fees; and that it
had the authority under § 814.025, Stats.,
to order payment of such fees when a motion is frivolous. The court concluded that Karie's motion was
frivolous because there was no factual or legal basis for the motion. The court found the attorney fees of $3,072
incurred by Robert to be fair and reasonable and ordered Karie to pay
them. It also ordered that she be
responsible for all the witness fees, the guardian ad litem fees and the fees
of Dr. Zirkel.
MODIFICATION OF PRIMARY PHYSICAL
PLACEMENT
Under
§ 767.327(3)(b)1, Stats.,
when parents have joint legal custody and substantially equal periods of
physical placement, and one parent contests the move of the other, the court
may modify custody or physical placement if it finds all of the following:
a. Circumstances make it impractical for
the parties to continue to have substantially equal periods of physical
placement.
b. The
modification is in the best interest of the child.
The burden of proof is on the parent seeking
modification. Section 767.327(3)(b)2.
In
making its determination, the court must consider these three factors: whether the purpose of the proposed action
is reasonable; the nature and extent of the child's relationship with the other
parent and the disruption to that relationship the proposed action may cause;
and the availability of alternative arrangements to foster and continue the
child's relationship with and access to the other parent. Section 767.327(5), Stats.
However, the court may also consider the factors in § 767.24, Stats.[5] Kerkvliet v. Kerkvliet, 166
Wis.2d 930, 942, 480 N.W.2d 823, 828 (Ct. App. 1992).
The
question is not the right of the parent to move, but whether physical placement
should be transferred to the objecting parent.
Kerkvliet, 166 Wis.2d at 938, 480 N.W.2d at 826. This question is directed to the court's
discretion. Id. We review a discretionary decision to
determine whether the trial court examined the facts of record, applied a
proper legal standard and, using a rational process, reached a reasonable
conclusion. In re Paternity of
Stephanie R. N., 174 Wis.2d 745, 766, 498 N.W.2d 235, 242 (1993).
Karie
argues that the trial court erroneously exercised its discretion by granting
primary physical placement to Robert rather than to her because: (1) Robert has a history of working
extensive hours; (2) she can stay at home to care for the children; (3)
Robert has a history of drinking; (4) her home has one more bedroom;[6]
(5) she has been extensively involved with her children; and (6) she provides
more religious training than Robert.
These factors, according to Karie, outweigh the fact of the move to
Waukon, Iowa, which is only sixty-four miles from Holmen. Karie points out that moves within the state
are permitted without notice to the other parent as long as they are within 150
miles. See § 767.327(1)(a)2, Stats.
Although
it was undisputed that Robert had in the past worked long hours, he testified
that he now does not work after school or on weekends when the children are
with him. This was corroborated by his
counselor and his employee. Karie's
friend testified that she had seen Robert in his store in the evening, but she
did not know whether he had the children then.
Karie's friends' testimony that they had seen the children unsupervised
in the mall where the store is located was explained by Robert and his
employee: one of the children had
classes at the YMCA, also in the mall, and the children walked back and
forth. Robert also explained that his
father, with whom the children were close, was at the store most of the time,
and the children were there at times to see him. The trial court could reasonably find that Robert was able to
provide adequate supervision of his children even though he worked.
There
was no evidence that Robert drinks excessively now. Harrison testified that Karie had not raised that as an issue in
the two counseling sessions he had with her, and it had never come up in his
counseling with Robert. Karie's friends
both testified that Karie had complained to them during her marriage about
Robert's drinking, but neither had any first-hand knowledge of his past or present
drinking habits. The trial court could
reasonably find that Robert's alcohol use was not a problem now.
There
was evidence of Karie's involvement with, and concern for, her children and the
activities, religious and otherwise, that she participated in with them. But there was also evidence of Robert's
involvement with, and concern for, his children and the activities that he
participated in with them. Karie's
married status was considered a benefit to the children by the parent-child
facilitator. And, as Dr. Zirkel
recognized, Karie's ability to stay
home and her larger house were positive factors. But that did not outweigh for him, or for the children's
counselor, the benefit to the children of remaining in Holmen with their
father.
It
was the trial court's role to weigh this evidence, along with all the other
testimony. The court clearly relied to
a significant extent on the report of Dr. Zirkel and the testimony of the
children's counselor in deciding that it was in the children's best interests
to remain in Holmen with their father.
It is the trial court's role to determine the weight to be given the
report of social workers and psychologists in custody disputes, see Larson
v. Larson, 30 Wis.2d 291, 300, 140 N.W.2d 230, 236 (1966), as well as
the weight and credibility of witnesses' testimony in general, see Wiederholt
v. Fischer, 169 Wis.2d 524, 532 n.4, 485 N.W.2d 442, 445 (Ct. App.
1992).
The
trial court considered the facts of record, applied the proper legal standard
and arrived at a reasonable conclusion.
We conclude that it properly exercised its discretion in modifying the
equal placement schedule to give Robert primary physical placement.
RELIGIOUS ATTENDANCE PROVISION
Karie challenges the
particular provision in the court's order that grants Robert the authority to
determine whether, after the children reach seventh grade, they may attend
religious events that interfere with educational activities. We first consider whether this provision is
an erroneous exercise of the court's discretion. We conclude it is not.
The
trial court considered the testimony of Karie and her pastor on the children's
religious training and activities. It
acknowledged the importance of religion to a child. The court found the children were receiving sufficient religious
training and exposure to religion. It
found that missing a week or two of school for a religious retreat did not
affect the children's schooling at a relatively young age. But it also found that this did have an
effect as children got older and their education became more structured and
required more time and effort. The
court concluded that allowing Robert to decide if the children, after reaching
seventh grade, could go to the retreats would not affect their religious
beliefs to any great extent and was necessary for their education.
The
trial court's conclusion is supported by the record. Cynthia Baer, Elizabeth's seventh grade teacher, testified that
in the sixth grade, Elizabeth's grades were in the B-C range, but her
mid-quarter estimated grade for the second quarter of the seventh grade was a
D-minus. She testified that Elizabeth
was absent from school for ten days in September, and that, although the
D-minus did not show up until the second quarter, in her view there was a
correlation between the early absence and the poor progress report in the
middle of the second quarter. Baer
acknowledged that Elizabeth's grade from her in science during the first
quarter was a B, but she nevertheless felt the poor progress report in the
second quarter reflected getting off to a poor start in September. Baer testified that she discussed the
ten-day absence with other teachers in her "house," who apparently
also taught Elizabeth, and they felt that it was a problem for any child to be
absent like that close to the beginning of the school year. She acknowledged that Elizabeth had gone to
the same religious functions in prior years and had done well in those prior
years.
The
trial court could reasonably conclude, based on this testimony, that it was
necessary for Robert to have the authority to prevent the children from going
on the retreats if, when they were older, the retreats interfered with their
schooling.
We
next consider Karie's argument that granting Robert this authority violates the
children's right[7] to exercise
their religion in violation of the First Amendment to the United States
Constitution and article I, section 18 of the Wisconsin Constitution.[8] This presents an issue of law, which we
determine de novo.
The
trial court's order does not prevent the children from belonging to the
Worldwide Church of God, from believing its tenets and professing those
beliefs. Nor does the order prevent or
restrict their church attendance and religious activities, except to the limited
extent that their father determines, after a certain age, that the religious
events interfere with their education.
Karie has provided us with no authority for her argument that this
limited right of the children's father (their joint legal custodian and primary
physical custodian) denies the children their right to freely exercise their
religion.
Karie
does cite Lange v. Lange, 175 Wis.2d 373, 502 N.W.2d 143 (Ct.
App. 1993), cert. denied, 114 S. Ct. 1416 (1994), as supporting her
position. But we fail to see how that
case advances her position. In Lange,
we rejected the First Amendment claim of a father who did not have primary
physical placement or legal custody and was permitted only supervised
visitation with his children until he demonstrated that he could refrain from
imposing his religious views on his children.
The mother in Lange was raising the children in the
Lutheran church and the father had a different religious faith. We concluded that the court order did not
prohibit the father from holding his religious views or discussing them with
his children, but rather prohibited him from attempting to cause his children
to reject their mother's choice of religion.[9] Id. at 384, 502 N.W.2d at
148. We held that the court order did
not violate the father's right to exercise his religion. Id.
Karie
suggests that Lange supports her position because the effect of
the order affirmed was to allow the children to continue in the Lutheran
church, in which they had been raised prior to the divorce. But the order entered by the court in this
case does not imply in any way that the children may not continue to belong to
the Worldwide Church of God. We
conclude the trial court's order did not violate the children's constitutional
rights.
ATTORNEY FEES AND COSTS--§
814.025, Stats.
Section 814.025(3)(b), Stats., permits a court to award the
successful party costs and reasonable attorney fees if the losing party or the
party's attorney knew, or should have known, that the action was without any
reasonable basis in law or equity and could not be supported by a good faith
argument for an extension, modification or reversal of existing law.[10] Whether the action is frivolous is a mixed
question of law and fact. See Kelly
v. Clark, 192 Wis.2d 633, 646, 531 N.W.2d 455, 459 (Ct. App.
1995). A determination of what a
reasonable attorney or litigant knew or should have known with regard to the
facts requires the trial court to determine what those facts were. Stoll v. Adriansen, 122 Wis.2d
503, 513, 362 N.W.2d 182, 187-88 (Ct. App. 1984). We do not overturn findings of fact unless they are clearly
erroneous. Id. However, the legal significance of those
findings of fact, in terms of whether those facts would lead a reasonable
attorney or litigant to conclude the claim is frivolous, presents a question of
law. Id.
In
its written order, the court stated that:
The Court finds
that the motion of the Petitioner was, in fact, frivolous. There was no factual basis nor evidence
offered to support the allegation that it would be in the best interests of the
minor children of the parties to be moved to Iowa. In fact, the overwhelming evidence from the professionals was that
it was in the children's best interests to remain in La Crosse County. This was made abundantly clear approximately
one year ago when the Petitioner first requested the right to move the children
to Iowa. The Petitioner filed a motion
when there had clearly been no change in circumstance. The Petitioner's desire to move the children
was based only on her own convenience, and not on the facts showing that it was
in the children's best interests. The
unreasonableness of the Petitioner in pursuing this litigation has resulted in
substantial attorney's fees to the Respondent and to the children through the
Guardian ad Litem and the experts employed by the Court and the Guardian ad
Litem. In addition to that, the
litigation certainly had an adverse effect on the children, and it has probably
affected their relationship with their therapists, who have been drawn into the
litigation.
Certain
of the court's findings are not relevant to a determination of
frivolousness. The impact of the
litigation on the children is not evidence that tends to prove any of the
standards or factors under § 767.327(3)(b), Stats. Therefore,
what the impact was, and whether Karie or her attorney should have known that,
does not go to whether her motion was frivolous.
The
finding that there had been no substantial change in circumstances is also not
relevant. Under § 767.327(3)(b), Stats., Karie did not need to show
there was a substantial change in circumstances since the last order. That is
one of the criteria under § 767.327(3)(a), applicable when the child
resides with one parent for a greater period of time. Moreover, this finding is not supported by the record. At the time Karie filed the first notice of
intent to move in May 1993, she lived in Holmen and was proposing to move to
Iowa. She did not move to Iowa at that
time. Instead, she reached a
stipulation with Robert whereby they would have equal placement, and she
remained living in Holmen. Her move to
Iowa in June 1994, which prompted the second notice and motion, was a
substantial change in circumstances.
There had been no court adjudication on the merits of her first notice
or on Robert's objection and motion.
There was nothing in the stipulation that prevented her from moving to
Iowa or seeking primary physical placement of the children if she decided to do
so.
Under
§ 767.327(3)(b), Stats.,
Karie had to show that circumstances made it impractical to continue equal
periods of placement and that primary physical placement with her in Iowa was
in the children's best interests. The
court found that the circumstances did make it impractical for the parties to
continue to have substantially equal periods of physical placement. The real question, then, is whether Karie or
her attorney knew or should have known that there was no evidence to support
her claim that it was in the best interests of the children to live with her in
Iowa.
In
this context, we examine the trial court's finding that it was abundantly clear
in 1993 that the overwhelming evidence of the professionals was that it was in
the children's best interests to remain in La Crosse County. The record supports a finding that Karie
knew before the August 1993 hearing that the recommendations of Dr. Zirkel and
the guardian ad litem were that the children should stay in Holmen. We note, however, that the guardian ad
litem's position is not evidence. See
Stephanie R. N., 174 Wis.2d at 774, 498 N.W.2d at 245; Hollister
v. Hollister, 173 Wis.2d 413, 419-20, 496 N.W.2d 642, 644-45 (Ct. App.
1992). The record also indicates that,
with the filing of the guardian ad litem's supplemental report on January 5,
1995, Karie or her attorney knew that Zirkel, as well as the children's
therapists, Ward and Wobig, and the school guidance counselor all would testify
that the current arrangement under the temporary order was providing
consistency and stability for the children and should be continued.
Whether
this knowledge of the expected testimony of these professionals would lead a
reasonable attorney or litigant to conclude that Karie's motion was frivolous presents
a question of law. We conclude that it
would not. A trial court's decision on
physical placement is a discretionary one, and the court is not bound to accept
the recommendation of experts. While a
reasonable litigant or attorney would understand that a trial court would
probably give significant weight to this expected testimony, that is not the
question. Our inquiry is whether Karie
or her attorney could reasonably conclude that there was evidence that it was
in the children's best interests to move to Waukon even though there was
evidence that the move would be disruptive for them. We conclude that she could.
As
Robert acknowledged to Dr. Zirkel, Karie had been the primary caretaker of the
children until August 1993. It is also
undisputed that Robert had worked excessively in the past and that Karie would
be able to stay home with the children.
While Dr. Zirkel opined that Robert had the better parenting
relationship with the children, Ward, the children's therapist, did not think
one parent was better than the other for the children. Dr. Zirkel's report indicated that the
psychological and parenting tests he performed on Karie showed her within
normal limits. And the parent-child
facilitator who worked with Karie and her husband had positive things to say
about Karie's parenting and considered her marriage to provide more stability
for the children than a household with a single parent. The testimony about the circumstances for
the children living in Waukon was positive.
The testimony of Karie's pastor and friends was positive.
Although the children's move to Waukon would mean they would see their
father less, the distance--sixty-four miles--and Karie's frequent trips to
Holmen for church activities, are evidence that the children would continue to
have frequent contact with their father.
The
trial court also found that Karie's decision to move to Waukon was for her
convenience, not for the best interests of the children. In its oral findings, the court stated that
although it would be less convenient for Karie and her husband to live in
Holmen, "it could be done."
While the question under § 767.327(3), Stats., is not the right of a parent to move, but whether
physical placement should be transferred, see Kerkvliet,
166 Wis.2d at 938, 480 N.W.2d at 826, one of the factors under § 767.327(5) is
"[w]hether the purpose of the proposed action is reasonable." The fact that the court apparently found the
purpose of the move not reasonable does not mean the motion was frivolous.[11] First, this is only one of the factors a
court must consider. Primary physical
placement with the parent who moves may be in the children's best interests
even if all three of the § 767.327(5) factors favor the objecting parent, and
even if the parent's reasons for moving are poor. See Kerkvliet, 166 Wis.2d at 944, 480 N.W.2d
at 829. Second, in the context of
§ 814.025, Stats., the
proper inquiry is whether, given the facts that were known to Karie or her
attorney, a reasonable person would have known that there was no basis for
contending her move to Waukon was for a reasonable purpose.
Karie
testified that she moved to Waukon because she wanted to live with her
husband. They had tried maintaining two
households, with his commuting to Holmen on some days, but that was financially and personally too
stressful. She felt that living with
her husband would provide a more stable family. Her husband testified that he was self-employed in a window
cleaning business, which he had had for eleven years, and as a farmer. Karie testified that her husband had looked
in the Holmen area for work, but it was too competitive.
We
conclude that it was not unreasonable for Karie or her attorney to believe that
this testimony provided a basis for arguing that Karie's decision to move to
Waukon was for a reasonable purpose.
The guardian ad litem and the court disagreed, viewing this as evidence
that Karie wanted to "get on with her own life," without regard for
the children's best interests. But that
does not render Karie's position frivolous.
When
a party claims that a proceeding is frivolous, the party must overcome the
presumption that it is not frivolous. Kelly,
192 Wis.2d at 659, 531 N.W.2d at 464.
The issue is not whether a party can and will prevail, but whether the
position taken is so indefensible that it is frivolous and the party should
have known it. Stoll, 122
Wis.2d at 517, 362 N.W.2d at 189.
Particularly in a physical placement dispute, where the decision is
discretionary, as is the weight to be given the evidence, a party should not
have to accurately predict how the court will weigh the evidence in order to avoid
a finding of frivolousness. We conclude
Karie's motion was not frivolous.
ATTORNEY FEES--§ 767.262, Stats.; GUARDIAN AD LITEM
AND EXPERT WITNESS
FEES--§ 767.045, Stats.
Although the trial
court's award of fees and costs appears to be primarily based on
§ 814.025, Stats., the court
also relied on its authority under §§ 767.262 and 767.045(6), Stats.
Section 767.262(1)(a) permits a court, "after considering the
financial resources of both parties," to order either party to pay a
reasonable amount for the costs to the other party, including attorney fees, of
maintaining or responding to an action.
Section 767.045(6) provides that the court "shall order either or
both parties to pay all or any part of the compensation of the guardian ad
litem" and "the fee for an expert witness used by the guardian ad
litem" under certain conditions; "[i]f either or both parties are
unable to pay, the court may direct that the county of venue pay the
compensation and fees, in whole or in part...." Because of the reference to ability to pay in § 767.045(6),
we construe this section, like § 767.262, to require a consideration of
both parties' financial resources before ordering payment of the fees.
In
its oral decision at the close of testimony, the trial court made no findings
on the financial circumstances of either Karie or Robert before ordering Karie
to pay the guardian ad litem and expert witness fees and Robert's attorney
fees. The written order, after finding
Robert's attorney fees reasonable, states:
"The Respondent [Robert] does not have sufficient resources to pay
the same, and to do so would place an undue burden on him." There are no other findings on the parties'
financial circumstances in the written order.
We have searched the record of the hearing. The only financial evidence presented was that Karie's husband
had his own business and would support her if she stayed home with the
children; that Karie was employed in a minimum wage job; and that Robert owned
a hardware store. We cannot conclude on
this record that the trial court considered the financial circumstances of the
parties in ordering Karie to pay the fees.
Robert
argues that the court was familiar with the parties' financial circumstances
from prior proceedings, but we see no indication that it considered that
evidence in ordering the payment of fees.
Moreover, evidence presented at prior proceedings, some years earlier,
would not be relevant unless there was also testimony at the January 1995 hearing
that the circumstances were unchanged.
Robert also argues that the court heard testimony on the parties'
financial circumstances when it determined Karie's child support obligation two
months later, on March 9, 1995. The
transcript of that hearing is not part of the record. But, in any case, we fail to see how that hearing demonstrates that the court
considered the parties' financial circumstances before ordering Karie to pay
the fees in January 1995.
Robert
argues, in the alternative, that the court did not need to make findings of
Robert's needs and Karie's ability to pay because Karie "overtried"
the case. He contends that it was
unreasonable for Karie to bring the May 1994 motion after agreeing to the
stipulation in August 1993. Robert
testified that he incurred $6,000 in expenses in preparing for the August 1993
hearing.
Robert
is correct that the trial court in a family matter has the discretion to award
attorney fees without making findings on need and ability to pay when it
determines that the manner in which one party litigates the case is
unreasonable and causes the other party to incur increased attorney fees. See Ondrasek v. Ondrasek,
126 Wis.2d 469, 484, 377 N.W.2d 190, 196 (Ct. App. 1985). However, the trial court here did not make
any findings, or even suggest, that the manner in which Karie's attorney
prosecuted her motion of April 1994 was unreasonable. The court did find that it was unreasonable for her to bring the
motion at all, but we have held that it was not.
In
summary, we affirm the portion of the trial court's order granting primary
physical placement to Robert, including the provision giving him the authority
to decide if the children may attend religious events that interfere with
educational activities when the children reach seventh grade. We reverse the portion of the trial court's
order directing Karie to pay Robert's attorney fees, the guardian ad litem fees
and expert witness fees under § 814.025, Stats. We remand for further proceedings regarding
attorney fees consistent with §§ 767.262 and 767.045(6), Stats., and this opinion.
Robert
has moved for a determination that the appeal is frivolous under
§ 809.25(3), Stats. He asserts that Karie's position that the
trial court erroneously exercised its discretion in granting Robert the
authority to limit the children's participation in religious events under
certain circumstances was without any reasonable basis in law and equity, as is
Karie's assertion that the trial court erroneously exercised its discretion in
awarding primary physical placement to Robert.
We have reversed the trial court's conclusion that Karie's motion to
modify the physical placement order granting her primary placement was
frivolous. We find the appeal is not
frivolous.
By
the Court.—Order affirmed in
part; reversed in part and cause remanded.
Not
recommended for publication in the official reports.
[1] The guardian ad litem submitted a statement
pursuant to § 809.19(8m), Stats.,
stating that it was not necessary for him to participate in the appeal because
he was in agreement with Robert's position on the issues.
[2] Karie also contends that the trial court
abused its discretion by ordering, on Robert's motion for contempt, that Karie
make monthly payments in the amount of $300 toward these fees. This written order was entered on April 19,
1995, after a hearing on April 5, 1995.
Karie's notice of appeal and amended notice of appeal refer only to the
January 23, 1995 order concerning the award of guardian ad litem fees, and the
March 9, 1995 orders regarding physical placement, child support and the award
of fees. We granted Robert's motion to
strike all portions of the brief referring to the April 5, 1995 hearing. We therefore do not address the issues Karie
raises concerning the April 5, 1995 hearing.
We do not understand Karie to be raising any issue concerning the child
support award.
[3] Section 767.327(1), Stats., requires that when both parents have physical
placement, a parent intending to establish residence outside the state and
remove the children from the state for a period exceeding ninety days must
provide notice to the other parent with a copy to the court. The other parent may file an objection to
the move. Section 767.327(2).
[5] Section 767.24(5), Stats., requires the court to consider these factors in
making custody and physical placement determinations when it grants a divorce:
(a) The wishes
of the child's parent or parents.
(b) The wishes
of the child, which may be communicated by the child or through the child's
guardian ad litem or other appropriate professional.
(c) The
interaction and interrelationship of the child with his or her parent or
parents, siblings, and any other person
who may significantly affect the child's best interest.
(d) The
child's adjustment to the home, school, religion and community.
(e) The mental
and physical health of the parties, the minor children and other persons living
in a proposed custodial household.
(f) The
availability of public or private child care services.
(g) Whether
one party is likely to unreasonably interfere with the child's continuing relationship
with the other party.
(h) Whether
there is evidence that a party engaged in abuse of the child, as defined in s.
48.981(1)(a) and (b) or 813.122(1)(a).
(i) Whether
there is evidence of interspousal battery as described under s. 940.19 or domestic
abuse as defined in s. 813.12(1)(a).
(j) Whether
either party has or had a significant problem with alcohol or drug abuse.
(k) Such other
factors as the court may in each individual case determine to be relevant.
[6] The record does not support Karie's assertion
that Robert and the children sleep on the living room floor in his
apartment. His testimony was that the
children stay with him in his apartment, except that twice on weekends since
September, the children have stayed at the house (which he and Kathy purchased)
where Kathy and her children live.
Kathy and her children slept in their bedrooms and he and his children
slept on the living room floor.
[7] The parties do not address whether Karie has
standing to raise this issue in this context, where the children have a
guardian ad litem. We assume, without
deciding, that Karie may raise this issue.
[8] The First Amendment to the United States
Constitution provides in part:
"Congress shall make no law ... prohibiting the free exercise [of
religion]." Article I, section 18
of the Wisconsin Constitution provides in part: "The right of every person to worship Almighty God according
to the dictates of conscience shall never be infringed."
[9] As the sole legal custodian, the mother in Lange
had the right to make decisions concerning the children's choice of
religion. See § 767.001(2)(a), Stats.
In this case, the parties have joint legal custody.
[10] The parties and the trial court all appear to
agree that a post-judgment motion to change physical placement is an
"action or special proceeding" within the meaning of § 814.025, Stats.
We assume, without deciding, that it is.
[11] We discuss the reasons for Karie's move only
in the context of § 814.025, Stats. Karie did not assert, in challenging the
primary placement award to Robert, that the trial court erred in finding that
the move was merely for her convenience, or in concluding, implicitly, that it
was not for a reasonable purpose.