COURT OF APPEALS DECISION DATED AND RELEASED June 27, 1996 |
NOTICE |
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. 95-1077
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
In re the Marriage of:
MICHAEL DONSKEY,
Petitioner-Appellant,
v.
LINDA DONSKEY,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Monroe County:
MICHAEL J. ROSBOROUGH, Judge. Affirmed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. Michael Donskey appeals from an order denying his
motion to modify the physical placement provision in his divorce judgment. The issue is whether the trial court applied
the proper legal standard when it ruled on the motion. We conclude that the trial court did use the
proper standard, and we therefore affirm.
Michael and Linda were
divorced in January 1990. The divorce
judgment awarded primary physical placement of the parties' two children to
Linda and assigned Michael a child support obligation. Sometime in 1991 or 1992 the parties, on
their own initiative, established an equal placement schedule for the
children. In May 1992, the court
approved a stipulation that removed Michael's child support payments, but made no
reference to the informal placement agreement.
In June 1994, Linda
withdrew her consent to equal placement and the parties returned to the
placement schedule set forth in the divorce judgment. Michael then moved for an order restoring the equal placement
schedule of the past two to three years.
In denying that motion,
the trial court placed the burden on Michael to prove that equal placement was
in the children's best interest. On
appeal, Michael challenges the use of that standard, and contends that the
trial court should have applied a presumption in favor of equal placement, and
placed the burden on Linda to rebut that presumption.
Under
§ 767.325(2)(b), Stats.,
where the parties have substantially equal period of physical placement
pursuant to a court order, a rebuttable presumption exists that having
substantially equal periods of physical placement is in the best interest of
the children. Michael contends that the
trial court should have used this standard in judging his motion. However, Michael and Linda shared equal
physical placement of the children pursuant to their own informal
agreement. There was no court
order. Therefore, the trial court had
no authority to apply the statutory presumption in § 767.325(2)(b). Instead, the trial court properly applied
§ 767.325(1)(b), which provides that after two years from the initial
physical placement order, the court may modify that order if it is in the best
interest of the children and there has been a substantial change of circumstances.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.