Luhman v. Beecher ( 1988 )

DYKMAN, J.

This is an appeal from an order denying Robert Beecher’s motion to vacate an order modifying the custody provisions of a divorce judgment. The issue is whether a stipulated order modifying custody must be vacated because the trial court conducted no evidentiary hearing and made no findings. We conclude that the parties’ stipulation as to their children’s custody is sufficient to support the trial court’s order. We therefore affirm.

Robert and Janet were divorced in 1975 in Grant county. Their stipulation and the divorce judgment provided that Robert have custody of their minor children. Upon the parties’ agreement, the children moved to Janet’s home in November 1985. In June 1986, the parties signed a stipulated order transferring the children’s custody to Janet. The Grant county family court signed and entered the order, but did not hold an evidentiary hearing or make findings before doing so.

In October 1986, Janet petitioned the Dane county family court for an order requiring Robert to pay child support. In December 1986, Robert filed a motion to vacate the June 1986 order with the Grant county family court. The Grant county family court denied Robert’s motion, and he appeals.

Robert contends that sec. 767.32(2), Stats., requires the family court to conduct an evidentiary hearing after the parties to a divorce judgment have stipulated to a change in their children’s custody. He argues that the court must make findings, supported by record evidence, that the custody change is necessary to the children’s best interest. He also asserts that evidence of the factors found in sec. 767.24(2) must be taken at the evidentiary hearing, and that the family court must make findings as to those factors. Section 767.24(2), Stats., provides:

In making a custody determination, the court shall consider all facts in the best interest of the child and shall not prefer one potential custodian over the other on the basis of the sex of the custodian. The court shall consider reports of appropriate professionals where admitted into evidence when custody is contested. The court shall consider the following factors in making its determination:

(a) The wishes of the child’s parent or parents as to custody;

(am) The wishes of the child as to his or her custody;

(b) The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child’s best interest;

(c) The child’s adjustment to the home, school, religion and community;

(d) The mental and physical health of the parties, the minor children and other persons living in a proposed custodial household;

(e) The availability of public or private child care services; and

(f) Such other factors as the court may in each individual case determine to be relevant.

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

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).

Whether the trial court was required to hold an evidentiary hearing and make findings of fact and conclusions of law requires us to construe secs. 767.24(2) and 767.32(2), Stats. We do so de novo. E.S. v. Seitz, 141 Wis. 2d 180, 184, 413 N.W.2d 670, 672 (Ct. App. 1987).

Robert’s contention that the last sentence of sec. 767.32(2), Stats., required the court to find that the removal of Robert’s children from his custody was necessary to their best interest was addressed in Marriage of Tieberg v. Ehlke, 137 Wis. 2d 228, 404 N.W.2d 84 (Ct. App. 1987). We concluded that a child is not "removefd] from the care of a parent having custody” within the meaning of sec. 767.32(2) if the child is residing with the parent seeking the child’s custody. Id. at 234, 404 N.W.2d at 86. Because Robert and Janet’s children were residing with Janet when the court entered its stipulated order, the last sentence of sec. 767.32(2) did not apply to that order.

The holding in Tieberg also necessarily rejects Robert’s contention that the family court must make findings, supported by record evidence, that the factors in sec. 767.24(2) support a custody change. Though sec. 767.32(2) requires consideration of the sec. 767.24(2) factors, Tieberg holds that the predicate for consideration of those factors is a determination that the minor children are residing with the parent from whom the change in custody is sought. Id. Since that predicate is absent here, the family court was not required to consider the sec. 767.24(2) factors.¹

Nor do we believe that King v. King, 25 Wis. 2d 550, 131 N.W.2d 357 (1964), Weichman v. Weichman, 50 Wis. 2d 731, 184 N.W.2d 882 (1971) and Schmitz v. Schmitz, 70 Wis. 2d 882, 236 N.W.2d 657 (1975) require a judicial investigation and evidentiary hearing in stipulated divorce cases involving families with children. King did not consider whether such investigation and hearing was necessary in an uncontested divorce case, and the portion of the opinion relied upon by the dissent in this case simply provided support for the court’s conclusion that a stipulation does not bind the trial court or preclude modification of a judgment based on the stipulation. King, 25 Wis. 2d at 555, 131 N.W.2d at 360. Weichman is equally inapposite. The court there held that if visitation is a contested issue the trial court must take evidence on that issue. Weichman, 50 Wis. 2d at 737, 184 N.W.2d at 885. It, too, has no bearing on an uncontested case. Schmitz is not a custody case.

Section 767.10, Stats., which requires court approval of parties’ stipulations, does not suggest that whenever custody is involved in a stipulation, the court must embark upon a full-scale, "contested-case” inquiry. Similarly, sec. 767.24(2), Stats., which requires the family court in making a "custody determination” to consider "all facts in the best interest of the child,” is inapplicable here, for in this case the court is not being asked to make any "determination.” "Determination” is defined as: "the settling and ending a controversy esp. by judicial decision ... the resolving of a question by argument or reasoning_” Webster’s Third New International Dictionary 616 (1976). There is no dispute and no controversy with respect to custody in this case. Finally, the first sentence of sec. 767.32(2), Stats., reads "[wjhenever the welfare of any ... child will be promoted thereby, the court granting ... judgment shall always have the power to change the care and custody of any ... child, either by giving it to or taking it from any parent, relative or agency.” That sentence, except for minor changes, has been part of Wisconsin law since 1909. Section 3, ch. 323, Laws of 1909. No Wisconsin appellate decision since then suggests that the legislature, by that sentence, intended judicial investigation and evidentiary hearings in all divorce actions involving minor children. If it had, it could have done so in specific language.

In Marotz v. Marotz, 80 Wis. 2d 477, 484, 259 N.W.2d 524, 528 (1977), the court said:

The approval of a custody stipulation itself does not necessarily involve an evaluation of both parents to determine in whose custody the child’s best interests are promoted; rather, the award of custody upon stipulation is usually based merely on the determination that the party to whom custody is stipulated is capable of caring for the child. (Citation omitted.)

Accord Haugen v. Haugen, 82 Wis. 2d 411, 414, 262 N.W.2d 769, 771 (1978). The dissent concludes this language is dicta, but matters not decisive to the primary issue presented but germane to that issue are not dicta, but binding decisions of the court. State of Louisiana ex rel. Eaton v. Leis, 120 Wis. 2d 271, 277, 354 N.W.2d 209, 212 (Ct. App. 1984). The quotation from Marotz was a part of the court’s reasoning by which it reached its conclusion. It must be germane to the issue discussed and is therefore a binding decision of the court. Were we to agree, which we do not, that there is a conflict between King and Marotz, we would follow Marotz and Haugen. If decisions of the supreme court are inconsistent, we follow that court’s practice of relying on the most recent pronouncement. Drivers, etc., Local No. 695 v. WERC, 121 Wis. 2d 291, 296, 359 N.W.2d 174, 177 (Ct. App. 1984).

A contrary conclusion would result in little other than additional time and cost. One of the parents involved in a divorce will be given custody unless both are unfit or unable to care for the children, or there are compelling reasons for awarding custody to a third party. Barstad v. Frazier, 118 Wis. 2d 549, 568, 348 N.W.2d 479, 489 (1984). "Compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child.” Id. Abandoned and neglected children and disrupted families are the focus of ch. 48, Stats., the Children’s Code. When a situation has reached the point where a child’s custody could be given to a third party, school social workers, the police, and others can be relied upon to set in motion the procedures of the Children’s Code.

Because the trial court properly interpreted secs. 767.24(2) and 767.32(2), we affirm its order denying Robert’s motion to vacate the court’s prior order.

By the Court. — Order affirmed.

1 We do not consider whether the parties’ stipulation would have been sufficient to transfer custody had the children been residing with Robert when the stipulated order was entered.