Marriage of Tieberg v. Ehlke

404 N.W.2d 84, 137 Wis. 2d 228, 1987 Wisc. App. LEXIS 3447

• Court: Court of Appeals of Wisconsin
• Decided: February 11, 1987
• Docket: 85-2204
• Status: Published

Opinions

SCOTT, C.J.

Robert E. Tieberg appeals from a post-judgment order transferring custody of the parties’ minor child, Bobby, from him to his former wife, Paula L. (Tieberg) Ehlke, and requiring him to pay support. Robert contends that sec. 767.32(2), Stats., as applied in Millikin v. Millikin, 115 Wis. 2d 16, 23-27, 339 N.W.2d 573, 576-78 (1983), governs all transfers of custody and requires the moving party, Paula, to produce substantial evidence demonstrating that removal of a child is necessary to the child’s best interest. Because we conclude that the trial court was not required by sec. 767.32(2) to find that the change of custody was rrnecessary ” to the child’s best interest, we affirm.

Robert and Paula were divorced on August 15, 1974. The judgment of divorce granted sole custody of their minor child to Paula. Two years later, in August 1976, the parties stipulated to the entry of an order transferring sole custody of Bobby to Robert. The purpose of the change was to give Robert greater input into decisions regarding Bobby’s treatment and placement for problems related to developmental disabilities.

Bobby resided with Robert until he entered residential treatment in May 1979. He was subsequently discharged in September 1983 and returned to live with Robert. On December 31, 1983, the parties informally agreed that Bobby would reside with Paula and Robert would have weekend visitations. Approximately ten and one-half months later, on November 7, 1984, Paula brought an order to show cause seeking a change of sole custody and requesting that the court order Robert to pay child support. The following weekend, Robert picked Bobby up for visitation and failed to return him to Paula. Bobby resided with Robert until the trial court issued an interim order on January 15,1985 placing Bobby with Paula pending a hearing on the custodial issue.

After hearing testimony from several expert witnesses, as well as the recommendations of the guardian ad litem, the trial court transferred sole custody to Paula and ordered support based on the statutory guidelines of sec. 767.395(3), Stats. (1983-84).¹

The trial court held that Robert had relinquished his responsibilities as legal custodian of Bobby by voluntarily placing the child with Paula for ten and one-half months.² The court determined that Robert’s actions estopped him from asserting that Paula, as the moving party, now had the burden under Millikin of establishing by substantial evidence that the change of custody was "necessary” to Bobby’s best interest. The court concluded that the issue of custody should be based only upon the standard of the "best interest of [the child].”

Custody determinations made by a trial court are given great weight upon review. Allen v. Allen, 78 Wis. 2d 263, 271, 254 N.W.2d 244, 249 (1977). An appellate court will not reverse the custody determination of a lower court absent an abuse of discretion. Gould v. Gould, 116 Wis. 2d 493, 498, 342 N.W.2d 426, 429 (1984). The application of an erroneous legal standard is an abuse of discretion. Oostburg State Bank v. United Sav. & Loan Ass’n, 130 Wis. 2d 4, 11-12, 386 N.W.2d 53, 57 (1986).

The 1976 court order transferred sole custody of Bobby to Robert. Although the trial court was aware of the holding of Millikin when it modified the 1976 court order, it declined to apply it. The court reasoned that Robert had given up the protection of Millikin when he abandoned the child for ten and one-half months. The trial court held that such conduct by Robert estopped him from asserting the Millikin standard.

While we disagree with the trial court’s application of estoppel,³ we nevertheless affirm because we agree with the court’s ultimate conclusion that it was not required to focus on "the necessity for removal” under Millikin when deciding the custody issue in this case.⁴

Section 767.32(2), Stats., in relevant part states:

Whenever the welfare of any such child will be promoted thereby, the court granting such judgment shall always have the power to change the care and custody of any such child, either by giving it to or taking it from any parent, relative or agency. ... Any modification of a custody order which removes a child from the care of a parent having custody of the child shall be based on a finding that such removal is necessary to the child’s best interest as shown by substantial evidence supporting a change in custody under s. 767.24(2). [Emphasis added.]

The foregoing statute empowered the trial court to "change the care and custody” of Bobby upon finding "the welfare” of Bobby was "promoted thereby.” The only provision which limits a trial court’s authority to change custody pertains to those situations where the court is ordering a "modification of a custody order which removes a child from the care of a parent having custody.” Section 767.32, Stats, (emphasis added). In such situations, the court must find that removal is necessary to the best interest of the child as shown by substantial evidence. The higher standard is only applicable to those situations where the parent who has sole custody also has been providing "care” on a day-to-day basis.⁵

The language of sec. 767.32(2), Stats., "reflects the legislature’s intent to forbid custody modification absent 'substantial evidence supporting a change of custody’ showing 'such removal is necessary to the child’s best interest.’” Millikin, 115 Wis. 2d at 23, 339 N.W.2d at 576 (quoting sec. 767.32(2)) (emphasis added). In construing a statute, we are to use the common and ordinary meaning of words chosen by the legislature. The common and ordinary meaning "may be established from the definition given in a recognized dictionary.” State v. Mauthe, 123 Wis. 2d 288, 298, 366 N.W.2d 871, 876 (1985). "Remove” means "to change or shift the location, position, station, or residence” of someone or something to a specified place. Webster’s Third New International Dictionary 1921 (1976). We conclude that the legislature only intended to impose the higher standard, requiring a showing by substantial evidence that "the change of custody was necessary,” in those situations where the child is residing with the parent from whom the change of custody is sought.⁶

The trial court questioned Robert’s motives in contesting the transfer of custody. The court was aware that Robert freely consented to the physical placement of Bobby with Paula for over ten months and that he did not resist this placement until Paula requested the change of custody and support. It was only then that Robert exercised his legal rights under the existing court order and unilaterally terminated the informal placement with Paula and took Bobby to live with him. We conclude that to require proof by the higher standard on the facts of this case would be to place form over substance and would be totally inconsistent with the legislative policy of protecting Bobby in his current home environment. The trial court properly applied the best interest of the child standard.

Robert also argues on appeal that the trial court abused its discretion in using the percentage guidelines under sec. 767.395(3), Stats. (1983-84), to arrive at the amount of support. From our review of the record, we are satisfied that the trial court could, in its discretion, set the amount of support by following sec. 767.25(lp), Stats. (1983-84), which provided:⁷ "In lieu of determining child support payments under sub. (1m), the court may order either or both parents to pay an amount determined by using the percentage standards adopted under sec. 767.395(3).”⁸

The order of the trial court is affirmed.

By the Court. — Order affirmed.

1 Reserve Judge David L. Dancey was substituted for Judge John P. Buckley prior to the hearing and entry of the order which is the basis for this appeal.

2 This holding of the trial court implicitly recognizes that legal custody of a child in this state involves both rights and duties. Legal custody is defined by sec. 767.24(1)(d), Stats., which invokes sec. 48.02(12), Stats., and includes, among other things, "the right and duty to protect, train and discipline the child, and to provide food, shelter, legal services, education and ordinary medical and dental care.”

3 Section 767.32(2), Stats., forbids custody modifications in certain circumstances "absent 'substantial evidence supporting a change of custody’ showing 'such removal is necessary to the child’s best interest.’” Millikin v. Millikin, 115 Wis. 2d 16, 23, 339 N.W.2d 573, 576 (1983) (quoting sec. 767.32). Even in the face of a claim of estoppel against Robert, it is incumbent upon the trial court to sua sponte assert the proper standard on behalf of the child. The statute is intended to protect the child’s best interest, not parental interests, unless they coincidentally coincide.

4 Appellate courts may approve the actions of trial courts for reasons other than those relied upon below. Badtke v. Badtke, 122 Wis. 2d 730, 735, 364 N.W.2d 547, 549 (Ct. App. 1985).

5 We are aware that the holding of Westrate v. Westrate, 124 Wis. 2d 244, 369 N.W.2d 165 (Ct. App. 1985), does not recognize court-ordered separation of legal custody and physical placement. However, we do not read Westrate as preventing this court from recognizing that the parties have, in fact, separated custody and placement for almost one year.

6 Our interpretation of sec. 767.32(2), Stats., is consistent with the holding of Millikin which discusses the change of custody issue in the following terms:

"[N]ecessary” does not mean that the child need be in impending or immediate danger of life, health, or safety. Rather, we view "necessary” as implying that the change of custody itself is needed because the current custodial conditions are harmful in some way to the best interest of the child. Such harm should not be found, however, simply because the custodial parent cannot match the better general living conditions offered by the parent seeking the change of custody. In order for better living conditions to become significant, they must rectify a condition in the current custodial arrangement that is harmful to the child’s best interest. [Emphasis added.]

Millikin, 115 Wis. 2d at 23-24, 339 N.W.2d at 576.

7 The statutory language and the trial court’s discretion have been changed somewhat in the current version of the statutes. See secs. 46.25(9)(a) and 767.25, Stats. These changes are not relevant to our disposition of this case.

8 Robert challenges the constitutionality of sec. 767.25(lp), Stats. (1983-84), for the first time on appeal. Generally, we do not review issues raised for the first time on appeal. Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140, 145 (1980). Because Robert has failed to give notice to the attorney general, as required by sec. 806.04(11), Stats., and because we do not find a compelling reason to consider the issue raised, State v. Yellow Freight Sys., Inc., 101 Wis. 2d 142, 158, 303 N.W.2d 834, 842 (1981), we find no need to exercise our discretion and reach this issue.