Marriage of Glidewell v. Glidewell

2015 WI App 64, 869 N.W.2d 796, 364 Wis. 2d 588, 2015 Wisc. App. LEXIS 488
CourtCourt of Appeals of Wisconsin
DecidedJuly 7, 2015
DocketNo. 2014AP1957
StatusPublished
Cited by10 cases

This text of 2015 WI App 64 (Marriage of Glidewell v. Glidewell) 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
Marriage of Glidewell v. Glidewell, 2015 WI App 64, 869 N.W.2d 796, 364 Wis. 2d 588, 2015 Wisc. App. LEXIS 488 (Wis. Ct. App. 2015).

Opinion

BRENNAN, J.

¶ 1. Jill Irene Glidewell (n/k/a Jill Irene Riley) appeals from a post-judgment custody order continuing joint custody with Jill's former husband Herbert Glidewell, but allocating certain decision-making to each party. After stipulating to joint custody in the original divorce, Jill sought to reopen the divorce judgment and modify custody on the basis of a domestic violence incident that occurred prior to the original divorce, arguing that the circuit court erred in not applying the domestic violence presumption — set forth in Wis. Stat. § 767.41(2)(d) (2013-14)1 — that it is "contrary to the best interest of the child to award joint or sole legal custody to" a parent who "the court finds by a preponderance of the evidence . . . has engaged in a pattern or serious incident of interspousal battery ... or domestic abuse."2

¶ 2. The circuit court denied Jill's motion to reopen the judgment, concluding that Jill had waived the domestic violence statutory presumption by stipulating to the original joint custody order. But the court did grant a modification of the custody order, keeping joint custody, but allocating school decisions to Herbert and health care decisions to Jill.

¶ 3. Jill argues that the circuit court erred in concluding that she had "permanently"3 waived the [593]*593domestic violence presumption when she stipulated to joint custody in the original divorce. She additionally contends that the great weight and clear preponderance of the evidence does not support the circuit court's post-judgment modified joint custody order.

¶ 4. We agree with the circuit court and affirm. Jill waived her right to raise the domestic violence presumption set forth in Wis. Stat. § 767.41(2)(d) in this post-judgment motion because the domestic violence she relies on occurred prior to her original divorce judgment, at which time she stipulated to joint custody. Jill cannot now assert the domestic violence presumption based on the pre-divorce incident and without asserting any post-judgment domestic violence facts.

¶ 5. We also conclude that the circuit court properly exercised its discretion when it ruled that it was in the children's best interests to continue joint custody and divide up final decision-making authority for educational and medical decisions between the parents. As the circuit court noted in a thorough and well-reasoned decision, both Jill and Herbert have been unable to put their anger for each other aside in order to do what is best for their children.

BACKGROUND

¶ 6. Jill and Herbert Glidewell were married on September 22, 2007. Their daughter was born on March 13, 2008. Less than a year later, on December 3, 2008, Herbert filed for divorce. The parties' son was born shortly thereafter on June 20, 2009.

¶ 7. On May 1, 2009, while the divorce action was pending, but prior to the birth of their son, Jill filed a petition for a domestic abuse injunction against Her[594]*594bert. On May 15, 2009, the family court commissioner granted the petition, and it was later affirmed by the circuit court.4 The petition expired on May 15, 2013.

¶ 8. On May 3, 2011, two years after the domestic abuse injunction was granted and while it was still pending, Jill and Herbert stipulated to the custody and placement of their minor children. The stipulated placement schedule awarded placement to Jill at sixty-four percent of the time and to Herbert at thirty-six percent of the time, in addition to establishing various other conditions of placement. During a May 3, 2011 court hearing, Jill testified as follows when questioned by her attorney about the custody agreement:

Q Do you believe that the terms and provisions in that document are in the children's best interest?
A Yes. I believe I have had to concede quite a bit, but yes.
Q So is it your statement and testimony that under the circumstances this is in the children's best interest?
A Yes.
Q And we did have three days of trial, and the two big issues that have been at the forefront are custody and placement; is that right?
A Yes.
Q But knowing all of that, you will agree to signing this custody document as it is before you?
A Yes.
[595]*595Q ... So you have had an ample opportunity to think about this and agree to the resolution on the issue of custody?
A Yes.

¶9. At the conclusion of the hearing, the circuit court adopted the parties' stipulation, which carried the recommendation of the guardian ad litem, and incorporated the stipulation into the final judgment of divorce. Before doing so, the circuit court acknowledged the existence of the domestic abuse injunction and the highly acrimonious relationship that existed between Jill and Herbert.5

¶ 10. Immediately following the circuit court's grant of the petition for divorce, Jill began filing numerous motions regarding custody and placement, including, as relevant here, a December 14, 2012 motion requesting modification of the divorce judgment to give her sole placement and custody, and a June 10, 2013 motion to reopen the judgment pursuant to Wis. Stat. § 806.07(1)(a), (b), (d), and (h).6 Jill argued that the circuit court, when entering the divorce judgment:

[596]*596"inadvertently" failed to engage in any meaningful discussion of the relevant factors set forth in Wis. Stat. § 767.41(2)(d) in order to rebut the presumption that it was detrimental to the children and contrary to the best interests of the children to award joint or sole legal custody to a party who has, by a preponderance of the evidence, engaged in a serious incident of domestic violence.

¶ 11. After hearing the evidence in a post-judgment hearing held on February 26, 2014, the circuit court ruled that the parties shall continue joint legal custody but that Jill would have final decision-making authority in the event of a dispute regarding medical care for the children and that Herbert would have final decision-making authority in the event of a dispute regarding educational decisions for the children.7 The circuit court concluded that Jill waived [597]*597application of the domestic violence presumption set forth in Wis. Stat. § 767.41(2)(d) when she stipulated to joint custody after the domestic abuse injunction had been issued. More specifically, the circuit court found as follows:

Now, the way I read [§ 767.41(2)(d)], there is a presumption.

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Cite This Page — Counsel Stack

Bluebook (online)
2015 WI App 64, 869 N.W.2d 796, 364 Wis. 2d 588, 2015 Wisc. App. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-glidewell-v-glidewell-wisctapp-2015.