|
COURT OF
APPEALS DECISION DATED AND
RELEASED March
7, 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. 95-1813
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN RE
THE MARRIAGE OF:
ROBERT
L. HARTZELL,
Petitioner-Respondent,
v.
PAULETTE
HARTZELL, NOW PAULETTE LUKE,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Rock County: PATRICK J. RUDE, Judge. Affirmed
in part; reversed in part and cause remanded with directions.
Before
Gartzke, P.J., Sundby and Vergeront, JJ.
VERGERONT,
J. Paulette Luke appeals from an order
transferring primary physical placement of her two minor children, Amanda and
Joshua, to their father, Robert Hartzell, and granting joint legal
custody. Luke contends that the trial
court erred by: (1) failing to
state in writing why its finding relating to physical placement and legal
custody is in the best interests of the children as required by
§ 767.24(6)(a), Stats.;[1]
(2) failing to apply the factors set forth in § 767.24(5);[2]
(3) relying on erroneously admitted police, sheriff and human services
agency reports; (4) refusing to admit the reports of a psychologist and a
social worker retained by her; and (5) denying her request for
contribution toward her attorney fees and requiring that she pay fifty percent
of the guardian ad litem fees.
We
conclude that the record supports the trial court's determination that there
was a substantial change of circumstances since the last order affecting the
children's custody and physical placement.
However, the trial court erroneously exercised its discretion in failing
to order a legal custody and physical placement investigation and, as a result,
there was insufficient evidence from which to determine whether it was in the
children's best interests to modify the prior order. The trial court also erroneously exercised its discretion when it
admitted the entire contents of all the police, sheriff and human services
agency reports. We therefore reverse
and remand for further proceedings. We
affirm the ruling on attorney fees but reverse and remand on the issue of guardian
ad litem fees. We do not decide the
issue regarding the psychologist and social worker reports.
BACKGROUND
Luke
and Hartzell were divorced on February 17, 1986. The judgment of divorce entered by the Rock County Circuit Court
provided that Luke have the care, custody and control of the parties' two
children, Amanda, born November 25, 1982, and Joshua, born August 4,
1984. The judgment also provided that
Hartzell have visitation every other weekend, certain holidays, and at other
reasonable times on reasonable notice.[3] On August 30, 1994, Hartzell moved the court
to grant him primary physical placement of the children and joint legal
custody. His affidavit asserted that
Luke was presently on probation and was engaged in a lifestyle that was
detrimental to the best interests of the children. Hartzell requested that the Rock County Department of Social
Services perform a custody investigation and that a guardian ad litem be
appointed. At the time of the motion,
Luke lived with her children in Reedsburg in Sauk County, and Hartzell lived in
Rock County.
The
minutes from a hearing held on September 19, 1994, state that the court ordered
that a guardian ad litem be appointed and that a custody/placement
investigation[4] be conducted
by the Departments of Human Services of Rock and Sauk Counties. The trial court entered a written order
appointing a guardian ad litem, but did not enter a written order for a
custody/placement investigation. The
court explained in later correspondence to the parties that it was not ordering
a custody/placement investigation because it had left this up to the guardian
ad litem, and the guardian ad litem had advised the court that a
custody/placement investigation was not necessary.
Before
trial, the guardian ad litem submitted a report relating the results of an
investigation she had conducted. She
interviewed Luke, Hartzell, Hartzell's live-in friend Lynn, and the two
children. She also reviewed records
from the Janesville Police Department, the Reedsburg Police Department, the
Rock County Sheriff's Department, the Sauk County Sheriff's Department, and the
Sauk County and Taylor County Departments of Human Services. She concluded that there had been a
substantial change of circumstances since the last order of custody and
placement and that it would be in the best interests of the children for their
father to have primary physical placement and the parents to have joint legal
custody.
At
the trial, Hartzell, Lynn and Hartzell's mother testified. Luke did not testify. Luke's witnesses were her mother, Robert
Hart (Luke's live-in friend), Luke's sister, Jeffrey Semenas, a certified
independent clinical social worker, and Dr. Robert Barahal, a licensed
psychologist. Semenas and Dr. Barahal
were retained by Luke.
The
trial court excluded the reports prepared by Semenas and Dr. Barahal. The court, over Luke's objection, admitted
reports from the Taylor County Department of Human Services, the Sauk County
Sheriff's Department, the Sauk County Department of Human Services, the
Reedsburg Police Department and the Rock County Sheriff's Department.
The
trial court determined that there had been a substantial change in
circumstances since the entry of the last order regarding the children's
custody and placement; the evidence overcame the rebuttable presumption that it
was in the children's best interests to have their custody and placement remain
as set forth in the last order; and it was in the children's best interests for
their parents to have joint legal custody and their father to have primary
physical placement, with specified periods of placement on alternate weekends
and certain holidays with their mother.
When
we denied Luke's request for relief pending appeal, we stated that we would
expedite the briefing schedule and take the case under immediate submission
upon completion of the briefs. Through
inadvertence, we did not take the case under immediate submission upon
completion of the briefs. We regret
this, because we recognize the importance of a prompt resolution of disputes
concerning the placement of children.
SUBSTANTIAL CHANGE
IN CIRCUMSTANCES
More
than two years having passed since the divorce order was entered, the trial
court had discretion to grant Hartzell's motion if primary physical placement with
him and joint legal custody were in the best interests of the children and
there was a substantial change of circumstances affecting placement and custody
since the divorce. Section
767.325(1)(b)1, Stats. The presumption is that it is in the best interests
of the children to continue physical placement with the parent with whom they
reside the greater part of the time and to continue the current allocation of
decision-making under the current custody order. Section 767.325(1)(b)2.
Whether to modify custody and placement is within the trial court's
discretion. In re Stephanie R. N.,
174 Wis.2d 745, 765-66, 498 N.W.2d 235, 241 (1993). We review a discretionary decision to determine if the court
examined the facts of record, applied the proper legal standard and, using a
rational process, reached a reasonable conclusion. See id. at 766, 498 N.W.2d at 242.
We
first consider whether there was a substantial change of circumstances since
the divorce affecting custody and placement.
This determination involves a comparison of the facts at the time of the
prior order to the present facts. Licary
v. Licary, 168 Wis.2d 686, 692, 484 N.W.2d 371, 374 (Ct. App.
1992). It requires that the facts on
which the prior order was based differ from the present facts and that the
difference is enough to justify the court's considering whether to modify the order. Id. The "before" and "after" circumstances, and
whether a change has occurred, are facts which we review under the clearly
erroneous standard. Harris v.
Harris, 141 Wis.2d 569, 574, 415 N.W.2d 586, 588-89 (Ct. App.
1987). Whether a change is substantial
is a legal standard. We defer to the
trial court's conclusion that a change in circumstances is substantial, but we
are not bound. Id. at
574-75, 415 N.W.2d at 589.
The
trial court found that there was a substantial change in circumstances but did
not set forth the facts upon which it relied.
We may review the record to determine if there are facts that support
this determination. See Delchambre
v. Delchambre, 86 Wis.2d 538, 541, 273 N.W.2d 301, 303 (1979). We conclude that there are.
Hartzell
testified that he lived with his wife, Lynn, his son from his second marriage,
and Lynn's two children. There was
evidence that Luke was on probation since March 1994 for a drug-related
offense. Since her divorce from
Hartzell, Luke had had one marriage and relationships with a number of other
men who lived with her and the children; and the men were either involved with
drugs, drank excessively, or abused Luke.
People "hanging around" Luke's house had used drugs. Luke now lives with a man who has been
steadily employed, is not involved with drugs, does not abuse alcohol and is
not abusive to Luke. Semenas testified
that Luke's home is more stable than it has ever been and that Luke is seeing a
therapist and her children have attended sessions with her.
This
evidence is sufficient to support a finding that circumstances have changed
since February 17, 1986. We
conclude that these changes are substantial.
They are significant enough to the lives of the children to warrant a
court's consideration of whether it is in the best interests of the children to
modify the prior order. The evidence
that Luke's home life had recently stabilized, while relevant to the best
interests determination, does not alter our conclusion. The changes in the households and the
significant relationships of each parent, and Luke's probation for a
drug-related offense, justify the court's consideration of modification of the
prior order.
CUSTODY/PLACEMENT
INVESTIGATION AND BEST INTERESTS
We
next address the trial court's decision not to order a custody/placement
investigation because that decision affects most of Luke's remaining
arguments. Section 767.11(14)(a), Stats., provides that whenever a
child's legal custody or physical placement is contested and mediation has not
resulted in agreement, the court may order a person or entity designated by the
county to investigate the conditions of the child's home, each party's
performance of parental duties and responsibilities relating to the child, and
any other matter relevant to the best interest of the child. The person or entity investigating the
parties is to submit the results of the investigation to the court, which is to
make the results available to both parties.
Section 767.11(14)(b). "The
report shall be a part of the record in the action unless the court orders
otherwise." Id.
A
trial court need not order an investigation in every custody and physical
placement dispute. The term
"may" means that it is within the trial court's discretion to do so. See Dennis v. Bayfield County
Cir. Ct., 161 Wis.2d 644, 652, 468 N.W.2d 736, 739 (Ct. App.
1991). When a decision is
discretionary, the court must undertake a reasonable inquiry and examination of
the facts as the basis for its decision.
Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 471, 326
N.W.2d 727, 732 (1982). We will affirm
the trial court's decision if the record shows that discretion was, in fact,
exercised and a reasonable basis exists for the trial court's decision. Id. Failure to exercise discretion is an erroneous exercise of
discretion. Id. at
471-72, 326 N.W.2d at 732.
The
trial court delegated to the guardian ad litem the decision of whether a
custody/placement investigation was necessary.[5] While the court may consider the recommendation
of the guardian ad litem in making this decision, the court must exercise its
own discretion in making the final decision.
The trial court here did not do that.
Its only explanation for not ordering a home study was that the guardian
ad litem decided it was not necessary.
This does not constitute an exercise of discretion by the trial court.
When
a trial court fails to exercise its discretion, we may remand to permit the
trial court to do so. Hartung v.
Hartung, 102 Wis.2d 58, 69, 306 N.W.2d 16, 22 (1981). In this case, we think the better course is
to examine the record to determine whether the record supports a decision that
the custody/placement investigation was unnecessary. We conclude that the record does not support that decision. We also conclude that the failure to order a
custody/placement investigation resulted in insufficient evidence from which to
make a determination of the best interests of the children.
The
evidence supports findings that Hartzell's household provided a more stable,
disciplined environment and more strongly demonstrated a work ethic than did
Luke's household. There was also
evidence that some of Luke's conduct and associations had not been in the
children's best interests, although, as we discuss below, some of this evidence
was improperly admitted. While the
conduct, lifestyle and values of each parent are relevant to a determination of
the children's best interests, the relationship of the children to each parent and
siblings and others with whom they live at each home is also a factor in
determining the best interests of the children, as is the children's adjustment
to the home, school, religion and community.
Section 767.24(5)(c) and (d), Stats. In the case of a change in primary physical
placement, the attachment to the parent and others with whom the children are
presently residing and to that school and community, and the effect of the
change on the children, are significant concerns.
Apparently,
both the trial court and the guardian ad litem considered that the guardian ad
litem could adequately gather all the relevant information and evaluate it in
order to reach a recommendation.
However, the role of the guardian ad litem is not that of a fact-finder. Hollister v. Hollister, 173
Wis.2d 413, 419, 496 N.W.2d 642, 645 (Ct. App. 1992). A guardian ad litem's report should not contain factual
information that is not part of the record.
Id. at 420, 496 N.W.2d at 645. The position and observations of the guardian ad litem are not
evidence. In re Stephanie R. N.,
174 Wis.2d at 774, 498 N.W.2d at 245.
Thus, the guardian ad litem's observations and conclusions in her report
about the children's ability to adjust to living with their father, their
relationships with their father's wife and the three children in their father's
home, and their father's relationship with his wife, are not evidence that the
court can rely on in determining the children's best interests.[6]
The
gap in the evidence resulting from the absence of a custody/placement
investigation is illustrated by an examination of the testimony of Semenas and
Dr. Barahal. The trial court said their
testimony was incomplete because neither had interviewed or examined Hartzell
or his family and friends. That is
precisely one of the values of a court-ordered custody/placement
investigation--it is based on interviews and information concerning both
parties so that a meaningful comparison may be made. In the absence of a custody investigation, because Luke chose to
retain experts and Hartzell did not, there was evidence about Luke's
psychological health, her relationship with her children, the children's
attachment to her, and no corresponding information concerning Hartzell.
In
light of Dr. Barahal's testimony, the absence of such evidence regarding
Hartzell is particularly troubling. Dr.
Barahal testified that Amanda and Joshua were strongly attached to Luke's two
younger children and that being in a different home without those two children
would be emotionally traumatic for them; that the children are more strongly
attached to their mother than to Hartzell; that there are significant conflicts
in the children's feelings about the other people in their father's home,
namely their stepmother and step-siblings; that Luke does not suffer from
significant characterological problems in spite of many aspects of her history;
and that, taking as true all the negative information about Luke in the
guardian ad litem's report, it would be highly traumatic for the children to
move from their mother's home to their father's home. Dr. Barahal stated these opinions to a reasonable degree of
scientific certainty.
Dr.
Barahal also testified that because he had not met Hartzell, he could not say
whether the move was nevertheless in the children's best interests; or whether
the father was so much a better parent that the children would benefit in the
long run. He believed moving the
children to Hartzell's home was taking "a real chance of screwing these
kids up badly." He could not say
whether that risk was worth taking because he did not know Hartzell; but he
urged caution in making a major change in the children's lives. He found nothing in his examination indicating
that the children had been psychologically harmed by living with their mother.
The
trial court found:
I have also
considered the fact that any change of primary placement can be upsetting and
unsettling to the children. Nevertheless, I find that these children should be
able to adapt to a change of primary placement without too much difficulty
based on the evidence in this case.
However,
no evidence supports this finding. The
guardian ad litem's observations and conclusions are not evidence. Nor is evidence that the trauma to the
children of leaving their mother's home is, nevertheless, in their best
interests because of the benefits to them of being in their father's home. The evidence of Hartzell's lifestyle and
values is significant, but there is little or no evidence concerning his
relationship with his children and his parenting abilities, and little evidence
on the children's relationship with others in their father's household.
There
is also little evidence of the children's adjustment to their school and
community. The trial court excluded
Semenas' report and did not permit him to testify concerning conversations with
the children's teacher and their therapist.
Dr. Barahal testified that Joshua had developmental difficulties and,
possibly, seizures but his report, which discusses this in more detail, was
excluded.[7] These are all issues that a court-ordered
custody/placement investigation could have addressed.
We
conclude that we must reverse the trial court's order granting joint legal
custody and primary physical placement with Hartzell, and remand with
directions to order a custody/placement investigation and such further
proceedings as appropriate. The trial
court should also consider whether a court-ordered psychological evaluation of
the parties or the children is necessary.
In view of the importance to the children and parents of resolving this
issue promptly, we direct the court on remand to proceed expeditiously so that
the primary placement of the children is decided, at the latest, before school
begins in the fall of 1996.
Because
the issue of the proper time for determining the children's best interests on
remand may arise, we address that now.
We cannot put the parties and the children back in the position they
were in when this dispute was tried on April 6, 1995. The children have presumably been residing
with their father since about June 6, 1995. The custody/placement investigation and any new testimony the
court hears should assess the children and parties as they are at the time of
the proceedings on remand, not as they were at the trial in April 1995. We conclude that the standard for modifying
custody and physical placement under § 767.325(1)(b), Stats., must, under these
circumstances, be altered somewhat.
Section 767.325(1)(b),
Stats., shows the legislature's
intent to minimize disruption to the child's life by discouraging repeated
litigation of custody and placement orders.
It does this in two ways:
(1) there must be a substantial change in circumstances since the
entry of the last order, and (2) there is a rebuttable presumption in
favor of continuing the current allocation of decision-making and continuing
the child's physical placement with the parent with whom the child resides the
greater part of the time.
However,
§ 767.325(1)(b), Stats.,
contemplates the typical situation where the child's primary placement is with
the non-moving party, consistent with the terms of the order sought to
be modified. This does not fit the
facts before us. Here the children
reside with the moving party pursuant to an order that we have reversed.
Considering
the purpose of § 767.325(1)(b), Stats.,
it makes no sense to apply a rebuttable presumption that it is in these
children's best interests to "continue" to reside primarily with
Luke, since they are not doing so now.
On the other hand, we are not willing to invest the arrangements under
the order we reverse with that presumption.
Therefore, on remand the court should not apply a presumption in favor
of either party.
The
reasoning that supports this modification of the standard on remand also
supports our conclusion that the children should remain primarily placed with
their father until the court determines their primary physical placement after
remand, unless the court determines that another interim arrangement is in the
children's best interests. The goal
here is to minimize the disruption to the children's lives while the
proceedings on remand take place.
EVIDENTIARY
ISSUES
Because
the admissibility of the police, sheriff and social services reports is an
issue that may arise on remand, we address that now. Luke contends that the police, sheriff and social services
reports were improperly admitted. She
acknowledges that the hearsay exception for public records applies,
§ 908.03(8), Stats., but she
contends that the exception renders admissible only the parts which the maker
of the report could testify to if present in court. We agree. If the report
contains an additional level of hearsay, the report must be examined to
determine whether an exception applies to that level of hearsay. Mitchell v. State, 84 Wis.2d
325, 330, 267 N.W.2d 349, 352 (1978).
If it does not, that portion of the report must be excluded. Boyer v. State, 91 Wis.2d 647,
661, 284 N.W.2d 30, 35 (1979).
While
the decision to admit or exclude evidence is discretionary, it must be made in
accordance with the proper legal standards.
State v. Weber, 174 Wis.2d 98, 106, 496 N.W.2d 762, 766
(Ct. App. 1993). The trial court
admitted all the reports offered by Hartzell, over Luke's objection, without
analysis of each report. The trial
court relied on certain reports. The
court refers in its findings to "police calls" and to other incidents
related in the reports. But the court
did not state what reports, or what portions of the reports, it relied on.[8] Certain portions of certain reports are
admissible and therefore could properly be relied on by the trial court, but we
decline to rule on the admissibility of the contents of each report, because
the trial court has not yet done so and the matter is being remanded on other
grounds. On remand, the trial court
should consider the admissibility of each report offered by Hartzell and rule
on Luke's objections to the contents of each.
Luke
also argues that the trial court erroneously denied admission of Semenas' and
Dr. Barahal's reports. Resolution of
this issue is related to whether Semenas and Dr. Barahal are experts in the
areas in which they offered testimony.
Whether a witness qualifies as an expert is a matter within the trial
court's discretion, State v. Robinson, 146 Wis.2d 315, 332, 431
N.W.2d 165, 171 (1988), as is the question whether to admit an expert's opinion
pursuant to § 907.02, Stats. State v. Blair, 164 Wis.2d 64,
74-75, 473 N.W.2d 566, 571 (Ct. App. 1991).
An expert witness may at trial read into evidence any report that the
witness prepared, except matter in the report that would not be admissible if
the expert testified orally. Section
907.07, Stats.
We
do not know whether Semenas or Dr. Barahal will testify on remand, since there
will be a court-ordered custody/placement investigation and there may be a
court-ordered psychological evaluation.
If either one or both do testify, that testimony will address
circumstances at the time of the remand.
Because of the death of the judge who has presided over this case, a new
judge will hear the case on remand. The
successor judge will not be bound by his or her predecessor's rulings on the
admissibility of expert opinion testimony or reports. See Starke v. Village of Pewaukee, 85 Wis.2d 272,
283, 270 N.W.2d 219, 224 (1978) (successor judge may modify or reverse rulings
of predecessor if it does not require a weighing of testimony given before the
predecessor and so long as predecessor would have been empowered to make the
modifications). For these reasons we do
not decide the issues relating to the admissibility of Semenas' and Dr.
Barahal's reports.
ATTORNEY FEES,
COSTS AND GUARDIAN AD LITEM FEES
The
trial court denied Luke's motion for a contribution toward her attorney fees
and costs on the ground that the custody dispute was precipitated by Luke's
unilateral decision to deny Hartzell visitation at the appropriate times and
places. The court also determined that
the guardian ad litem fees should be divided equally. Luke contends that the trial court erred because she does not
have the ability to pay these fees and costs and Hartzell does.
Section
767.262(1)(a), Stats., provides
that a court may, after considering the financial resources of both parties,
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 affecting
the family. This statute means that a
court may not order contribution without considering the financial resources of
the parties. This statute does not mean
that a court must order contribution if one party has greater income;
rather, a court may do so.
The
trial court declined to order contribution because it found that Luke's denial
of Hartzell's visitation rights precipitated Hartzell's motion to change
custody and physical placement. It is
reasonable to infer from the evidence that this is one factor prompting the
motion. Hartzell testified concerning
Luke's failure to permit the children to see him at the scheduled times on
various occasions before he filed the motion.
Luke did not testify. It was
reasonable for the court, in deciding whether to award a contribution, to take
into account Luke's conduct in denying Hartzell's visitation rights.
However,
we are unable to determine why the court ordered an equal division of guardian
ad litem fees. Under § 767.045(6),
Stats., the court has the
discretion to apportion the fees between the parties and to order that the
county pay part or all if either party is unable to pay. Because of the reference to "unable to
pay," we read this statute to require that the court consider each party's
ability to pay in deciding how the guardian ad litem fees are to be paid. On remand, the court should direct the
manner of payment of guardian ad litem fees after considering each party's
ability to pay.
SUMMARY
On
remand, the court shall order a custody/placement investigation and consider
whether to order a psychological evaluation of the parties or the
children. After the investigation is
completed, the court shall conduct a hearing to determine whether primary
placement with Hartzell and joint custody is in the best interests of the
children. The court shall rule,
consistent with this opinion, on the admissibility of each police, sheriff and
human services agency report, or portion thereof, that is offered by Hartzell
and objected to by Luke. The court
shall determine the manner of payment of the guardian ad litem fees after
consideration of the parties' financial circumstances.
By
the Court.—Order affirmed in
part; reversed in part and cause remanded with directions.
Not recommended for
publication in the official reports.
No. 95-1813(CD)
SUNDBY,
J. (concurring in part; dissenting in part). I
agree that we must reverse the order awarding the parties joint legal custody
and transferring primary physical placement of Amanda and Joshua from their
mother to their father, Robert. The
order amended a 1986 judgment. I do not
agree, however, that we can, or should, allow Robert to retain the fruits of
the trial court's error by leaving the children with him. When we reverse a trial court order changing
physical placement, the judgment or previous order controls.
Amanda
is approximately thirteen and one-half and Joshua will be twelve in
August. By the time the investigations
which should have been done are done after remand and the trial court decides
Robert's motion, and the trial court's decision is appealed, and review by the
supreme court is sought, with the possibility of a further reversal, these
children may no longer be minors. We
will have a repeat of the tragedy in In re Paternity of S.R.N.,
167 Wis.2d 315, 481 N.W.2d 672 (Ct. App. 1992), aff'd, 174 Wis.2d 745,
498 N.W.2d 235 (1993), where a twenty-month old child was wrongfully taken from
her mother by court order and given to her father. By the time this wrong was righted, the child had been with the
father approximately five-and-one-half years and a new trial court concluded
that continuing the custody and physical placement arrangement was now in the
best interest of the child.
I
fault the legislature and the courts equally for allowing these tragedies to
occur. I urge the legislature to enact
emergency legislation providing that a child shall not be removed from his or
her home until an order having such effect has become final after all judicial
remedies are exhausted, except where a child is being physically or sexually
abused. I also urge the legislature to
provide that any order having such effect shall be immediately appealable and
shall be heard forthwith by the court of appeals. It is time that the courts and the legislature put a stop to allowing "the courts ... to be
battlefields where wounded parents turn their children as weapons against one
another." S.R.N.,
167 Wis.2d at 343, 481 N.W.2d at 684.
I
have no sympathy at all for the father in this case. He loved Amanda and Joshua so much that he refused to pay
court-ordered child support and was twice ordered to show cause why he should
not be found in contempt for failing to pay such support; regarding the second
order to show cause, he was found in contempt of court. Moreover, as of August 11, 1992, he was
$9,683.69 in arrears in child support.
I question the sincerity of his effort to now obtain primary care and
placement of the children. It is likely
that he is motivated primarily by his disinclination to pay child support.
Robert
relies on Paulette's chaotic lifestyle.
However, he did not present any evidence that the mother's lifestyle had
any adverse affect upon the children.
That is necessary. See S.R.N.,
167 Wis.2d at 338-39, 481 N.W.2d at 682.
The mother, however, presented reports by a licensed psychologist and
the Sauk County Human Services social worker that the children "much
preferred" to live with their mother and resented their father and his
efforts to interfere with their relationship with their mother. Amanda told the psychologist that she would
like to "make all this court stuff stop and just live with my
mother." In a hypothetical life
boat, Joshua told the doctor that he would include his father only if there
"was a lot more room." The
children blame their father for most of the fighting between him and their
mother.
The
psychologist concluded that a change of physical placement would be traumatic
for the children.
The
father had the burden to show that a change of physical placement and legal
custody was in the best interest of the children. He made almost no effort to carry that burden.
Under
§ 767.325(1)(b)2, Stats.,
the father was faced with a rebuttable presumption that continuing the
children's physical placement with their mother was in their best
interest. He did not overcome that
presumption. We propose to give him a
second chance. I have always thought
that if a litigant had a burden to carry and failed to carry it, he or she had
had their day in court and that was the end of the matter. Further, because of the trial court error
caused by the father's failure to make his case, we now propose to abolish the
rebuttable presumption because the children have been placed with him
wrongfully since the court entered the order which we now review.
I
urge the supreme court to give this case its immediate attention and prevent,
if it is not already too late, the trauma to the children caused because Robert
has used them in his bitter contest with his former wife. We take away children's stability in their
homes and get tough with them when they find outlets for their anger in
delinquent acts.
For
these reasons, I dissent.
[1] Section 767.24(6)(a), Stats., provides:
If legal custody or
physical placement is contested, the court shall state in writing why its
findings relating to legal custody or physical placement are in the best
interest of the child.
[2] Section 767.24(5), Stats., provides:
In determining
legal custody and periods of physical placement, the court shall consider all
facts relevant to the best interest of the child.... The court shall consider
reports of appropriate professionals if admitted into evidence when legal
custody or physical placement is contested.
The court shall consider the following factors in making its
determination:
(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.
[3] Under statutory amendments since the entry of
the 1986 order, the definition of custody has changed. The terms "joint legal custody"
and "legal custody" are now defined in § 767.001(1) and (2), Stats.
The term "physical placement" is now used instead of
"visitation." "Physical
placement" is defined in § 767.001(5). Using current terminology, the 1986 order granted Luke sole legal
custody and primary physical placement.
The term "custody" in this opinion refers to legal custody as
defined in § 767.001(2). The term
"placement" refers to physical placement as defined in § 767.001(5).
[4] The parties and the court often use the term
"home study" to refer to an investigation under § 767.11(14)(a),
Stats. That statute provides in pertinent part:
A county or 2 or
more contiguous counties shall provide legal custody and physical placement
study services. The county or counties
may elect to provide these services by any of the means set forth in sub. (3)
with respect to mediation. Regardless
of whether a county so elects, whenever legal custody or physical placement of
a minor child is contested and mediation under this section is not used or does
not result in agreement between the parties, or at any other time the court
considers it appropriate, the court may order a person or entity designated by
the county to investigate the following matters relating to the parties:
1. The
conditions of the child's home.
2. Each
party's performance of parental duties and responsibilities relating to the
child.
3. Any
other matter relevant to the best interest of the child.
We use
the term "custody/placement investigation" in this opinion to refer
to an investigation as described in § 767.11(14)(a), Stats.
[5] The record does not indicate at what point,
after the September 19, 1994 hearing, the court decided to leave the question
of a custody/placement investigation up to the guardian ad litem. Nor does the record indicate how counsel
were first informed of the trial court's decision to do this. However, after the guardian ad litem's
report was filed on December 7, 1994, Luke's new counsel requested a
court-ordered investigation under § 767.11(14), Stats. When the trial
court denied the request, stating that it had left this decision up to the
guardian ad litem and she had determined it was unnecessary, Luke moved for
reconsideration of the denial. In the
motion for reconsideration, Luke pointed out that there was little information
in the guardian ad litem's report about Hartzell and that it was in the best interests
of the children that the court have evidence of the suitability of both
homes. We do not find a ruling by the
court on this motion.
[6] We do not intend to fault the quality of this
guardian ad litem's work or her conscientiousness in acting as an advocate for
the children. We intend, rather, to
clarify the role of the guardian ad litem, recognizing that the role is not
always well-defined. See Hollister
v. Hollister, 173 Wis.2d 413, 418, 496 N.W.2d 642, 644 (Ct. App. 1992).
[8] The trial court stated that it was
incorporating all the facts in Hartzell's brief as its findings, and the
factual allegations in the guardian ad litem's reports. Those documents discuss various reports. This makes it even more difficult to
determine whether the court relied on admissible portions of the reports. A trial court does not properly exercise its
discretion when it adopts the position and findings of a party without stating
the factors it relied on in deciding to do so.
See Trieschmann v. Trieschmann, 178 Wis.2d 538,
544, 504 N.W.2d 433, 435 (Ct. App. 1993).