COURT OF APPEALS DECISION DATED AND RELEASED January 17, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1273
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE PATERNITY OF
BRADFORD J. B.:
PAUL M. J.,
Petitioner-Respondent,
v.
DORENE A. G.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Chippewa County:
RODERICK A. CAMERON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Dorene A. G. appeals an order expanding her
son's placement schedule with his father, Paul M. J. Dorene argues that the trial court misused its discretion because
(1) it did not follow the guardian ad litem's recommendation; (2) it
erroneously ordered equal physical placement; (3) it relied on improper
factors; (4) its decision is not supported by the evidence; and (5) it
erroneously rejected psychological testimony.
Because the record supports the trial court's exercise of discretion, we
affirm.
In February 1990, Paul
initiated a paternity action seeking a declaration that Bradford J. B., born to
Dorene on December 21, 1989, was his son.
The court determined that Paul was Bradford's father, that Dorene be awarded
sole custody, that Paul pay 17% of his income as child support and have periods
of physical placement.[1] In April of 1993, on Paul's motion, the
trial court modified the earlier May 1991 placement schedule. Dorene appealed, contending that under
§ 767.325(1)(a), Stats.,
absent allegations of harm to Bradford, the trial court lacked authority to
substantially modify placement during the two years following the initial
order. We agreed and reversed.
In March of 1995, on
Paul's motion, the trial court ordered that due to substantial changes,
including Bradford's age and development, it was in Bradford's best interests
to modify the May 1991 placement order.
Essentially, the trial court maintained the alternate weekends, starting
Fridays at 9 a.m. until Sundays at 6 p.m.
It alternated Thanksgiving, Christmas Eve, Christmas Day and the Fourth
of July. It increased midweek placement
to include Tuesday afternoon until Wednesday evening and ordered four weeks
during the summer. It further ordered
that Bradford spend his birthdays with his mother and spend the day before or
after with his father and made other minor adjustments. Dorene appeals.
In determining periods
of physical placement, "the court shall consider all facts relevant to the
best interests of the child."
Section 767.24(5), Stats. Placement determinations are addressed to
trial court discretion. In re
Marriage of Wiederholt, 169 Wis.2d 524, 530, 485 N.W.2d 442, 444 (Ct.
App. 1992). The trial court misuses its
discretion when it applies the wrong legal standards or bases its decision on impermissible
factors. In re F.E.H.,
154 Wis.2d 576, 583, 453 N.W.2d 882, 884 (1990). Underlying an exercise of discretion are issues of fact, that we
sustain unless clearly erroneous, giving due deference to the trial court's
assessment of weight and credibility of testimony. Section 805.17(2), Stats.
Dorene argues that the
trial court misused its discretion because it did not follow the guardian ad
litem's recommendation. We
disagree. The role of the guardian ad
litem is not to direct the trial court's judgment, but to function as an
attorney to advocate the child's best interests. Section 767.045(4), Stats. The trial court is not required to adopt the
guardian ad litem's recommendation.
Here, the record reveals
that the trial court considered the guardian ad litem's recommendation together
with other relevant evidence presented at trial, and concluded that additional
placement beyond the guardian ad litem's recommendation was warranted. The court's ultimate determination, however,
does not appreciably differ from the guardian ad litem's recommendation. The exception is the midweek placement,
where the court ordered an overnight instead of an afternoon, and it ordered
four weeks in the summer, as opposed to three weeks with two extended
weekends. The court did not misuse its
discretion.
Next, Dorene argues that
the trial court erroneously violated the rule enunciated in Westrate v.
Westrate, 124 Wis.2d 244, 369 N.W.2d 165 (Ct. App. 1985), by ordering
approximately equal placement. We
disagree. Westrate held
that the trial court cannot order equal placement while rejecting joint
custody. "We conclude that equal
physical placement is inconsistent with the rights granted by sec. 48.02(12) [Stats.] to the legal custodian. It constitutes alternating physical custody
and prevents the creation of a single custodial environment." Id. at 249, 369 N.W.2d at
168. Here, however, the placement
schedule does not create equal placement.
Some of the days Bradford spends with Paul are not entire days, but
begin in the afternoon and end in the early evening. The effect of the schedule is to give Dorene more than half of
Bradford's physical placement. The
schedule does not violate Westrate.
Next, Dorene argues that
the trial court relied on improper factors.
She objects that the trial court characterized its decision as
"essentially on the motion filed in April of 1992" that was later
reversed and that "[e]xcept for a technicality regarding when the hearing
on Mr. Johnson's motion was heard, that order would probably still be in
effect." These remarks do not
evince a misuse of trial court discretion.
The record supports the court's observations that the proceedings are
similar and that the reason for the reversal was the two-year statutory
limit. The record shows a reasonable
exercise of discretion that was not negated simply by making these
observations.
Next, Dorene argues that
the court's decision is not supported by the evidence because the trial court
ignored the rebuttable presumption that the child's current placement is in his
best interests. See Wiederholt,
169 Wis.2d at 530, 485 N.W.2d at 444.
Dorene argues that Paul failed to submit any evidence whatever that
supported the conclusion that a modification was in the best interests of the
child. She argues that Paul's primary
motivation is his selfish needs and not the needs of the child. She further argues that Paul's rigid and controlling
mental and emotional condition cause the placement to be contrary to Bradford's
best interests. She also argues that
because the parties do not cooperate, Bradford's stability is undermined with
expanded placement.
We conclude that the
record supports the trial court's exercise of discretion. Doctor Harlan Heinz, Paul's psychologist,
testified that he has met with Paul on several occasions and believes that Paul
loves his son very much. Heinz opined
that Paul is intelligent, emotionally strong and healthy, and that a
"father relationship offers a great opportunity to Bradford." He further testified that "Paul has
taken extra steps to become skilled as a parent and has made extra efforts to
develop parenting skills, and, in my opinion, that offers a healthy environment
for Bradford as well." Heinz
testified that the promotion of a relationship with the father enhances the
child's relationship not only with his father but with his mother as well. Heinz acknowledged that parental
communication is a problem in this case and recommended counseling as the best
approach. Dorene attacks the weight and
credibility of Heinz's and Paul's testimony; however, weight and credibility
assessment is a trial court, not appellate function. Id. at 533-34, 485 N.W.2d at 445.
In addition to Heinz's
testimony, the trial court received the guardian ad litem's proposed placement
schedule that recommended placement
with Paul every other weekend, every Tuesday afternoon, every other Thursday
afternoon and three weeks in the summer as well as two extended summer
weekends. The record supports the
determination that it was in Bradford's best interests to develop a
relationship with his father as well as his mother and that expanded placement
with Paul would promote this goal.
Finally, Dorene argues
that the trial court erroneously refused to hear testimony from a psychologist,
Allan Hauer. Dorene offered Hauer's
testimony that from his experiences and national studies, joint custody is
harmful to a child. The trial court
excluded the testimony as repetitious and unnecessary. Evidentiary issues are addressed to trial
court discretion. Wingad v. John
Deere, 187 Wis.2d 441, 456, 523 N.W.2d 274, 280 (Ct. App. 1994). Because other professionals had already
testified about custodial considerations, the court reasonably exercised its
discretion. Because the court
ultimately denied joint custody, Dorene was not prejudiced by the exclusion of
Hauer's testimony in any event.
By the Court.—Order
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.