COURT OF APPEALS DECISION DATED AND RELEASED December 3, 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. 95-2909
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
In re the Marriage of:
Linda LaBerge,
Petitioner-Appellant,
v.
Arthur LaBerge,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Milwaukee County:
PATRICIA S. CURLEY, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Linda LaBerge appeals from an order
granting her ex-husband, Arthur LaBerge's petition for a modification of
physical placement of their two children.
Linda argues that the wrong standard was applied (“the best interest of
the child” standard instead of the “the harm” standard) in granting the
petition and that the record is insufficient to support the trial court's
conclusion that the present custodial conditions are harmful to the
children. Because the trial court
applied the correct legal standard, and because there is sufficient substantial
evidence to support the trial court's ruling modifying physical placement, we
affirm.
I. BACKGROUND
The LaBerges were
divorced on March 4, 1994. Primary
physical placement of the two minor children was awarded to Linda. Shortly after the divorce, Arthur learned
that George Salinas, Linda's boyfriend, was caring for the children when Linda
went to work. Arthur became concerned
when he learned that Salinas had a domestic violence injunction against him
from Salinas's estranged wife, Janice.
He felt the children were distressed under Salinas's care and brought a
motion in August 1994 to modify primary placement.
After hearing the
evidence, the trial court ordered that primary placement of the children be
transferred to Arthur. Linda now
appeals.
II. DISCUSSION
When reviewing
modifications under § 767.325, Stats.,
we will affirm the trial court unless it erroneously exercised its
discretion. Stephanie
R.N. v. Wendy L.D., 174 Wis.2d 745, 765, 498 N.W.2d 235, 241
(1993). Where the trial court
considered the relevant facts, applied the proper legal standard and reached a
reasonable conclusion, we will not find an erroneous exercise of
discretion. Id. at 766,
498 N.W.2d at 242. After reviewing the
record in this case, we conclude that the trial court did not erroneously
exercise its discretion.
In order for a trial
court to modify a placement order within two years of the initial order, the
party seeking modification must show “by substantial evidence that the
modification is necessary because the current custodial conditions are
physically or emotionally harmful to the best interest of the child.” Section 767.325(1)(a), Stats.
This legal standard is referred to as the harm standard. It is clear from the record that the trial
court applied this standard in reaching its conclusion. The trial court stated in pertinent part:
First of all, I think the standard has been
well spelled out by all three attorneys.
That for this Court to change placement in this particular case has to
be shown by substantial evidence that the modification is necessary because the
current custodial conditions are physically or emotionally harmful to the best
interest of the child and it is, as we have said, a higher standard than if
this were just a straight best interest of the children situation; and I think
there were good reasons why the legislature imposed this higher standard for a
period of two years, to give children some consistency for a while after the
tumult of a divorce between the parents.
The trial court
proceeded to examine the relevant facts in light of this standard and
eventually determined that living with Linda—because of Salinas's presence,
conduct and history—rendered the current custodial conditions
physically or emotionally harmful to the best interest of the LaBerge
children. There is sufficient substantial
evidence in the record to support this ruling.
There is evidence that Salinas has been violent in the past, has
demonstrated explosive behavior, has had past problems with drugs and the law,
and that the children seem fearful and distressed because of Salinas's
conduct. The trial court based its
findings on its observations of all the parties involved and relied on the
reports of two mental health professionals who spoke with the children.
Linda argues that the
trial court did not make adequate findings and that there is evidence in the
record contradicting the evidence regarding Salinas's explosive temper and
history of violence. Although there is
some evidence in the record that attests to Salinas being a good and loving
caretaker, it is not the job of this court to make credibility
determinations. This is left to the
trial court, which is in a better position to observe demeanor of the
witnesses. Gehr v. City of
Sheboygan, 81 Wis.2d 117, 122, 260 N.W.2d 30, 33 (1977). It is up to the trial court to determine
what weight to give each witness's testimony.
Milbauer v. Transport Employes' Mut. Benefit Soc'y,
56 Wis.2d 860, 865, 203 N.W.2d 135, 138 (1973).
Here, the trial court
concluded that the evidence attesting to Salinas's explosiveness and violent
character was more credible than the testimony attesting otherwise. In addition, it is not the job of this court
to search the record to determine whether there is support for findings
different from those reached by the trial court, but to search the record to
determine if it supports the findings that the trial court did make. We have done so and conclude that the record
supports the trial court's findings regarding Salinas's temper, potential for
violence, and past history with drug abuse.
Psychologist Kathleen
Schoendorf testified that Salinas showed “a high degree of anger, a high
potential for explosive angry behavior and hostility” and that his test results
indicated that he can be very explosive, very violent. Janice, Salinas's ex-wife, testified that
Salinas drank a lot of alcohol, that he was angry and violent and that both she
and her children feared him. She also
stated that he fought with the children, actually threw objects at them, slept
with a knife under his pillow and whacked the family dog in the head with a
baseball bat. Janice also said that
Salinas threatened her not to testify.
Arthur LaBerge attested that when he went to pick up the children on one
occasion, he found Linda and Salinas had been drinking—that they were
drunk. There is also evidence, namely
the mental health professionals' conclusions, to support the trial court's
findings that the children are evincing distress under Salinas's care.
The trial court's
conclusion, that the harm standard had been met and that the children's
physical placement should be transferred, was a reasonable one in light of the
facts referenced above. Accordingly, we
do not find an erroneous exercise of discretion and affirm the trial court.[1]
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Linda also claims the trial court considered irrelevant information in reaching its decision. Because there is sufficient relevant evidence in the record to support the trial court's determination, we need not consider this additional argument. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).