Derleth v. Cordova

2013 WI App 142, 352 Wis. 2d 51
CourtCourt of Appeals of Wisconsin
DecidedNovember 5, 2013
DocketCase No. 2012AP2018; Case No. 2012AP2802
StatusPublished
Cited by1 cases

This text of 2013 WI App 142 (Derleth v. Cordova) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Derleth v. Cordova, 2013 WI App 142, 352 Wis. 2d 51 (Wis. Ct. App. 2013).

Opinion

HOOVER, PJ.

¶ 1. Missy Derleth appeals a divorce judgment, arguing the circuit court had no authority to restrict her from moving outside the geographical area of the marital home as part of the child custody determination. Additionally, she argues the court erroneously excluded fringe benefits from her former husband's income and assets when determining child support and maintenance, and erroneously failed to consider the unvested part of one portion of a retirement account when dividing property.

¶ 2. Andrew Cordova, Derleth's former husband, appeals a subsequent order that effectively nullified the moving restriction the divorce judgment had imposed on Derleth.1

[57]*57¶ 3. We hold that the circuit court was without authority to restrict an intrastate move under 150 miles. Accordingly, we affirm the subsequent order that permitted Derleth to move. Further, we affirm that part of the divorce judgment addressing child support and maintenance, but reverse with regard to the property division issue.

BACKGROUND

¶ 4. Derleth and Cordova were married in June 2006. They previously resided in the Appleton area, but moved to Rhinelander to enhance Cordova's accounting career. Derleth scaled back her level of employment after each of the couple's children was born, in 2007 and 2010. She expressed a desire to return to Appleton throughout the marriage. Derleth filed for divorce in December 2011, and made employment, housing, school, and daycare arrangements in the Appleton area.

¶ 5. A final divorce hearing was held in May 2012. The circuit court found that Derleth had been the primary caregiver for the children. It also determined it was not feasible for Cordova to have primary placement of the children due to his work schedule. The court ordered joint custody with shared placement.

¶ 6. Derleth introduced a Mapquest map that showed her intended home with her boyfriend in Menasha was approximately 147 miles away from the marital home. Cordova and the guardian ad litem (GAL) were opposed to the move. The GAL declined to recommend a specific distance, but opined Derleth should be required to live within the local geographical area. Ultimately, the court concluded:

[58]*58Looking at [Wis. Stat. §] 767.41(5), I am going to restrict the placement to the geographical area.[2] I would say 45 miles would be subject to the best interesas] of the children. We do have this mobility issue between [Groh v. Groh, 110 Wis. 2d 117, 327 N.W.2d 655 (1983)] and, of course, [§] 767.481 and 767.41, but 1 think that the best interests of the children have to predominate over the other factors, and it appears clear to the court based upon the testimony presented here, the credibility of the testimony of each of the witnesses, that the best interest[s] of the children are served by having placement be restricted to the 45 mile geographical area.

¶ 7. The court also resolved issues of child support, maintenance, and property division. When determining child support and maintenance, the court excluded fringe benefits when calculating Cordova's gross income. With regard to property division, the court did not divide all of Cordova's retirement account. The retirement account was comprised of three parts, two of which were fully vested. The third part, profit sharing, was only eighty percent vested, but was due to be fully vested fifteen days after the final hearing. The court valued that part of the account at eighty percent of full value for purposes of the property division.

¶ 8. Derleth filed a notice of appeal from the divorce judgment in September 2012. The following month, she filed in the circuit court "motions for contempt and allowing move of less than 150 miles." At the motion hearing the next month, the court indicated:

Here's my concern. I mean, my initial reading of the language in Groh is that the court just can't do it period. The language is pretty straightforward. Okay. [59]*59But we have a situation where Judge Richards made a ruling, apparently Groh was brought to his attention, and it's on appeal before the Court of Appeals. And so in effect what I'm being asked to do is even though I look at it and I might say Judge Richards is just plain wrong, but procedurally I don't see how I can do that.
I'm making a finding that the law does not allow a trial court based on Groh to order where a custodial parent should live within the state so long as the move ... is within 150 miles. The Groh decision very directly and clearly states that.
While I am bothered by the — I am uncomfortable and not necessarily certain of my authority to basically remove that part of the judgment given the procedural posture of this case, I'm finding that the law does not preclude [Derleth] from moving within 150 miles of the marital residence.

Following the hearing, the court issued an order stating: "Wis. Stat[]. § 767.481 and the Groh decision clearly provide that the court may not preclude [Derleth] from moving within 150 miles. Therefore, [Derleth] is allowed to do so." Cordova appeals that order.

DISCUSSION

Limitation on Derleth moving

¶ 9. The parties' appeals both raise the same issue: whether Groh and Wis. Stat. § 767.481 prohibited the circuit court from imposing the forty-five-mile moving restriction on Derleth. Because the issue is before us in both appeals, we need not concern ourselves with any procedural questions concerning the circuit court's review of the matter while Derleth's [60]*60appeal was pending.3 Interpretation and application of statutes to a particular set of facts presents a question of law that is reviewed de novo. Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 853, 434 N.W.2d 773 (1989).

¶ 10. In Groh, the court addressed a provision in what was then the visitation statute, Wis. Stat. § 767.245(6) (1979-80), which provided in part:

Whenever the court grants visitation rights to a parent, it shall order the child's custodian to obtain written approval of the parent having visitation rights or permission of the court in order to establish legal residence outside of this state or to remove the child from this state for a period of time exceeding 90 days.

The court held this provision prohibited a court from requiring a custodial parent who had lived in Milwaukee at the time of divorce to move back from Rhine-lander to within fifty miles of Milwaukee. Groh, 110 Wis. 2d at 119, 124.

¶ 11. The court explained, " 'in Wisconsin it has long been held that the courts of this state have no common-law jurisdiction over the subject of divorce and that their authority is confined altogether to such express and incidental powers as are conferred by statute (citing cases). Such is undoubtedly the law.'" Id. at 122-23 (quoting Dovi v. Dovi, 245 Wis.

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Bluebook (online)
2013 WI App 142, 352 Wis. 2d 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derleth-v-cordova-wisctapp-2013.