Marriage of Hollister v. Hollister

496 N.W.2d 642, 173 Wis. 2d 413, 1992 Wisc. App. LEXIS 1052
CourtCourt of Appeals of Wisconsin
DecidedDecember 22, 1992
DocketNo. 92-1649-FT
StatusPublished
Cited by12 cases

This text of 496 N.W.2d 642 (Marriage of Hollister v. Hollister) 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 Hollister v. Hollister, 496 N.W.2d 642, 173 Wis. 2d 413, 1992 Wisc. App. LEXIS 1052 (Wis. Ct. App. 1992).

Opinion

CANE, P.J.

Lisa Hollister appeals a judgment awarding her former husband, Garry Hollister, custody of their two minor children.1 Lisa claims that the circuit [415]*415court did not take into consideration all the statutory criteria set forth in sec. 767.24(5), Stats., or the testimony and opinion of a psychologist, Dr. John Hamann, but rather decided custody only on the basis of the anger that Lisa felt toward Garry. She also claims that the trial court erred by not allowing cross-examination of the guardian ad litem. We affirm the circuit court's decision.

Garry and Lisa Hollister were married and have two minor sons, Lance and Alex. In July 1991, Garry moved out of the home he shared with Lisa and their two sons, Lance and Alex. A month later, he petitioned for divorce. Garry became involved in a relationship with another woman and moved into her home. As a result, Lisa was very angry at Garry and expressed this anger consistently. Both Lisa and Garry desired custody of Lance and Alex.

Pursuant to sec. 767.045, Stats., the court appointed a guardian ad litem in the custody and physical placement dispute.2 During the time between his appointment and the final hearing, the guardian ad litem met in person and via telephone with several people who had insight regarding Lance and Alex and the parenting capabilities of Lisa and Garry. He also made announced visits to the homes of both Lisa and Garry and observed the children with each parent. During the investigation, the guardian ad litem also had access to the children's medical and counseling records.

The guardian ad litem submitted a preliminary report and recommendation to the trial court and to attorneys for both parties. This report and recommendation stated that the children's best interests would be [416]*416served if custody was awarded to Garry. The guardian ad litem further recommended that Lisa have frequent and liberal physical placement.

At the final hearing, the guardian ad litem was present for the entire proceeding, cross-examined witnesses and participated in the hearing as an advocate for the children's best interests. Both Garry and Lisa testified extensively as did numerous others, including Dr. John Hamann, a psychologist who opined that custody of the children ought to be with Lisa. The guardian ad litem also gave an oral recommendation after each party's final argument. Consistent with his preliminary report and recommendation, the guardian ad litem recommended that Garry be awarded custody and Lisa be allowed liberal physical placement rights. The guardian ad litem did not testify and did not present evidence that was not otherwise before the court. The circuit court ruled that it was in the children's best interests that Garry be given sole custody and awarded Lisa physical placement rights on every other weekend.

A custody determination depends on firsthand observation and experience with the persons involved and is therefore committed to the sound discretion of the circuit court. Gould v. Gould, 116 Wis. 2d 493, 497, 342 N.W.2d 426, 429 (1984). Thus, a custody determination will not be upset unless the findings of fact are clearly erroneous or the decision represents a clear abuse of discretion. Id. at 498, 342 N.W.2d at 429.

Section 767.24, Stats., sets forth the factors to be considered in custody and physical placement determinations. These factors include the wishes of the child's parents, the wishes of the child and the interaction and interrelationship of the child with his or her parents, [417]*417siblings and any other person who may significantly affect the child's best interests. The numerous factors also include whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party. Section 767.24(5) (g), Stats.

Lisa's first two arguments contend that the trial court did not consider the appropriate factors in making its determination. She argues that in rendering its opinion, the court did not consider the proper statutory factors or the opinion of Dr. Hamann, the psychologist. The trial court's oral decision refutes this contention. The court considered the proper statutory criteria, particularly noting that Lisa's anger toward Garry and past unilateral decisions made to deprive Garry of visiting with his children made it likely that, if given custody, she would unreasonably interfere with the children's continuing relationship with Garry. The trial court did not fail to consider the testimony of Dr. Hamann. In fact, it referred to Dr. Hamann's findings in its oral decision. The record demonstrates that the trial court exercised its discretion reasonably in making its decision.

Lisa also contends that the trial court erred as a matter of law by not allowing her to cross-examine the guardian ad litem. Section 767.045, Stats., mandates the appointment of a guardian ad litem in divorce cases where custody is disputed. It states that the guardian ad litem shall be an attorney admitted to practice in Wisconsin and shall "be an advocate for the best interests of a minor child as to legal custody, physical placement and support." Section 767.045(4), Stats. The statute further states " [t]he guardian ad litem shall function independently, in the same manner as an attorney for a party to the action." Id. The Judicial Council Notes to this section clarify that subsec. (4):

[418]*418specifies that the guardian ad litem shall function in the same manner as the lawyer for a party. Among other things, this means that the guardian ad litem communicates with the court and other lawyers in the same manner as a lawyer for a party, presents information on relevant issues through the presentation of evidence or in other appropriate ways and generally functions as the lawyer for a party.

Judicial Council Notes, 1989, Wis. Stat. Ann. sec. 767.045(4) (West Supp. 1992). (Emphasis added.)

In general, the role of the guardian ad litem is not well-defined. Some jurisdictions have stated that the guardian ad litem concurrently fulfills the three roles of investigator, officer of the court and advocate. See Edward Sokolnicki, The Attorney as Guardian Ad Litem for a Child in Connecticut, 5 CONN. PROB. L.J. 237 (1991). Other jurisdictions have held guardians ad litem in a custody hearing to be proper witnesses, subject to cross-examination. See, e.g., Beran v. Beran, 450 N.W.2d 688, 691 (Neb. 1990); Shainwald v. Shainwald, 395 S.E.2d 441, 443-44 (S.C. App. 1990).

In Wisconsin, however, the plain language of sec. 767.045, Stats., shows that the guardian ad litem is first and foremost an advocate for the child's best interests. Wiederholt v. Fischer, 169 Wis. 2d 524, 536, 485 N.W.2d 442, 446 (Ct. App. 1992). Additionally, SCR 20:3.7 states that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness." Consequently, if a guardian ad litem were to be called as a witness, SCR 20:3.7 would mandate that the guardian resign as advocate for the best interests of the child. S.S. v. D.M.,

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Bluebook (online)
496 N.W.2d 642, 173 Wis. 2d 413, 1992 Wisc. App. LEXIS 1052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-hollister-v-hollister-wisctapp-1992.