Daniel J. Blank v. Megan J. Ballweg ( 2021 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 18, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2020AP574 Cir. Ct. No. 2018FA104
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
DANIEL J. BLANK,
PETITIONER-RESPONDENT,
V.
MEGAN J. BALLWEG,
RESPONDENT-APPELLANT.
APPEAL from orders of the circuit court for Grant County:
CRAIG R. DAY, Judge. Affirmed.
Before Fitzpatrick, P.J., Kloppenburg, and Nashold, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP574
¶1 PER CURIAM. When Daniel Blank and Megan Ballweg were
divorced in 2018 they agreed to share placement of their then two-year-old
daughter.1 Approximately one year after the divorce judgment was entered,
Megan filed a motion to modify placement. After an evidentiary hearing held
shortly after Megan filed her motion, the circuit court entered an interim order
temporarily modifying placement. After a second evidentiary hearing held five
months later, the court entered an order denying the motion and reinstating the
placement schedule set forth in the divorce judgment. Megan appeals, arguing
that the court erroneously exercised its discretion by “misapplying” the governing
statute in several respects.2 We reject Megan’s arguments and affirm.
BACKGROUND
¶2 The following undisputed facts are taken from the pleadings and the
evidence and testimony presented at the two evidentiary hearings held on Megan’s
motion. We present the facts in some detail to provide context for our analysis of
Megan’s arguments.
¶3 Daniel and Megan were married in October 2015, had their daughter
S. in September 2016, and were divorced in September 2018. As part of the
1
The parties refer to themselves by their first names, and we follow their lead. We will
refer to their daughter and to Daniel’s daughter from a previous marriage by the initials S. and O.,
respectively. We will refer to O.’s mother, Meagan Pauls, by her last name.
2
In her Notice of Appeal, Megan indicated that she was also appealing the circuit court’s
order requiring that she pay a portion of the guardian ad litem fees. In her briefing before this
court, Megan neither identifies the GAL order as an issue nor makes any arguments about the
GAL order; she also includes in her appendix only the order and related transcript of the court’s
oral decision denying her motion for modification of placement, and not the GAL order.
Accordingly, we deem Megan to have abandoned this part of her appeal and do not consider it.
See Post v. Schwall, 157 Wis. 2d 652, 657, 460 N.W.2d 794 (Ct. App. 1990) (“Arguments raised
but not briefed or argued are deemed abandoned by this court.”).
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divorce judgment, Daniel and Megan stipulated to shared placement of S. Daniel
also shared placement of his daughter O. from a previous marriage; O. was eight
years old in July 2019. Daniel and O.’s mother, Pauls, regularly communicate
with each other by text, phone, and otherwise. Daniel and Megan do not
communicate with each other because of a restraining order that Megan had
obtained against Daniel. Megan and Pauls communicate directly with each other,
and S goes to Pauls’s mother’s home for day care.
¶4 In July 2019, Megan filed a motion to modify placement, requesting
that the circuit court “restrict Daniel’s placement time in an appropriate manner
until and unless Daniel has made genuine progress in treatment of his AODA
[Alcohol and Other Drug Abuse] and mental health conditions.”
¶5 The circuit court held a “Temporary Placement Hearing” on July 18,
2019, for the purpose, as stated by the court, of developing “some means of
getting control of” the placement situation on a temporary basis until it could be
resolved on a more permanent basis. Megan, Daniel, and Pauls testified at the
hearing, and their testimony provided the following undisputed description of the
situation that precipitated Megan’s motion.
¶6 Daniel has a history of mental health issues, and for a month or so
prior to June and July 2019, Megan had been increasingly concerned about
Daniel’s mental health and substance abuse. On June 20, 2019, Daniel was caring
for S., who was then two and three-quarters years old. Daniel had been highly
manic for a month prior to that date, barely sleeping, and drinking excessively to
help him sleep. On June 20, 2019, as Daniel testified, he had been drinking even
more and “it all came to a head.” He texted Pauls, saying that he had not slept and
had been drinking a lot, and asked her to come get S. Daniel testified that he
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asked Pauls to come get S. because he intended to kill himself and “couldn’t do it
with S. there.” Daniel had difficulty texting and began sending videos. One of the
videos he sent showed him pointing a loaded gun at his head. Pauls contacted the
police and Megan and then went to Daniel’s home at about midnight at the
police’s request and brought S. to her home, where Megan later picked up S. to
bring her to Megan’s home. Megan withheld S. from placement with Daniel for
the next two scheduled days following the June 20 incident. S. then resumed
placement with Daniel, although Megan continued to be concerned for her safety.
¶7 Between June 20 and the July 18 hearing, Daniel saw a new doctor
who prescribed certain medications for Daniel and Daniel began seeing a therapist.
He still drank, but “not nearly as much,” and still smoked marijuana, but not when
his daughters were around. He was still depressed “to an extent,” but he “got the
help [he] needed” and was “doing what [he could] to be better so [he could] have
[the kids].”
¶8 At the conclusion of the July 2019 hearing, the circuit court found
that Daniel did the right thing by contacting Pauls on June 20 and seeking medical
help, that Pauls did the right thing by calling the police and Megan and bringing S.
to her home, and that Megan did the right thing by getting S. and reasonably
withholding placement immediately afterwards. The court determined that it was
proper to step back from the placement schedule until Daniel showed that he was
where the court, the parties, and his two daughters “need[ed] him to be.” The
court temporarily modified placement to give Daniel time to be properly
diagnosed and get proper treatment, reduced S.’s placement with Daniel to one
afternoon per week, restricted Daniel’s alcohol consumption and marijuana use,
and required Daniel to pursue therapy and take prescribed medications. The court
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clarified that the reduced placement schedule and associated restrictions were to
be short-term, dependent on Daniel’s getting control of his mental health.
¶9 The circuit court entered an “Interim Order” consistent with its
remarks at the hearing. The court stated in the order that:
Until progress is made by Daniel in assessing and
treating the issues identified above, it is in [S.]’s best
interest that his placement be modified. Such modification
is intended to be temporary in nature, with Daniel’s
participation and progress in treatment the primary
determinant of when some or all of his placement can
appropriately be restored.
¶10 After a status conference in late August 2019, the circuit court
entered an “Interim Order (Revised)” that slightly increased S.’s placement with
Daniel to include one overnight every other week.
¶11 On December 20, 2019, the circuit court held a “Placement Hearing”
at which Daniel, Megan, and Pauls testified, and at which Daniel’s medical
records were presented. Their testimony and the medical records provided the
following undisputed description of the situation that existed at the time of the
December hearing.
¶12 Daniel testified as follows. Daniel was being treated by a new
medical doctor who prescribed his medication and by the psychotherapist whom
he had been seeing since the June 20 incident and whom he was seeing less
frequently as he improved. He was diagnosed with severe bipolar disorder and
alcoholism. He was drinking much less, one six-pack of beer a week, had lost
weight, and felt great. He still struggled with sleep once every couple of months
and smoked marijuana at night to relax. He had been struggling with mental
health issues and drinking excessively for years and had been smoking marijuana
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No. 2020AP574
when he was married to Megan, he had not been the best father but was going to
do much better, and since June 20 his parenting was much better. He was in daily
contact with Pauls.
¶13 Megan testified as follows. S. continues to return from placement
with Daniel ungroomed, dirty, clingy, and upset, and says her father is mean to her
and yells at her, and Megan’s biggest concern is Daniel’s commitment to ongoing
mental health treatment and his not being treated for his alcoholism.
¶14 Pauls testified as follows. She noticed a big difference in Daniel’s
anxiety and demeanor since he started treatment, Daniel also occasionally cares
for her son and Megan’s sister’s children, her son loves going to Daniel’s home,
and O. is never scared to go there. She was at Daniel’s home a couple of days
before the hearing and had no concerns, and she is happy with his progress.
¶15 The guardian ad litem recommended somewhat increased placement
until February 1, 2020, and then returning to equal placement if Daniel “continues
to have no issues with his mental health.”
¶16 The circuit court found that Daniel’s drinking, marijuana use,
sleeping difficulties, and bipolar disorder were not new but existed during the
marriage; that what was new was one frightening, harmful incident in response to
which all of the persons involved took appropriate action, and that the situation
was at least restored to what existed at the time of divorce when the parties agreed
to shared placement and was “probably” better. The court concluded that under
the onerous statutory standard for a modification within two years of a divorce
judgment, “the only correct lawful answer on this record is to deny the motion to
modify placement.” The court subsequently entered an order denying the motion
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No. 2020AP574
to modify placement and reinstating the placement schedule set forth in the
divorce judgment.
¶17 Megan appeals.
DISCUSSION
¶18 Megan argues that the circuit court erroneously exercised its
discretion by “misapplying” WIS. STAT. § 767.451(1)(a) (2019-20)3 when it:
(1) denied her motion to modify placement based on the circumstances that existed
at the time of the December 2019 hearing rather than on the circumstances that
existed in July 2019 when she filed her motion; (2) applied a “government hands-
off” policy; and (3) incorrectly focused on changed circumstances and determined
that no substantial change of circumstances had been shown. We first state the
applicable standard of review and then address each argument in turn.
I. Standard of Review
¶19 We review modification of a placement order to determine if
the decision reflects a reasonable exercise of discretion. We
will sustain discretionary acts as long as the [circuit] court
examined the relevant facts, applied a proper standard of
law and, using a demonstrated rational process, reached a
conclusion a reasonable judge could reach.
Glidewell v. Glidewell, 2015 WI App 64, ¶22, 364 Wis. 2d 588, 869 N.W.2d 796(internal citations and quotations marks omitted). Our task as the reviewing court
is to search the record for reasons to sustain the circuit court’s exercise of
discretion, but when the contention is that the court erroneously exercised its
3
All references to the Wisconsin Statutes are to the 2019-2020 version unless otherwise
noted.
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No. 2020AP574
discretion because it applied the incorrect legal standard, we review that issue
independently. Hughes v. Hughes, 223 Wis. 2d 111, 120, 588 N.W.2d 346(1998).
II. Reliance on Evidence of Circumstances at December 2019 Hearing
¶20 As stated, Megan argues that the circuit court “misapplied” WIS.
STAT. § 767.451(1)(a) when it denied her motion to modify placement based on
the circumstances that existed at the time of the December 2019 hearing rather
than on the circumstances that existed in July 2019 when Megan filed her motion.
As we explain, we conclude that the circuit court properly exercised its discretion
in relying on evidence of the current custodial conditions at the December 2019
hearing and rejecting Megan’s argument that additional hearings were warranted.
¶21 Megan moved to modify placement within two years of the divorce
judgment pursuant to WIS. STAT. § 767.451(1)(a), which provides in pertinent part
that a court may not grant a motion that seeks to substantially alter the time a
parent may spend with his or her child unless the party seeking the modification
“shows by substantial evidence that the modification is necessary because the
current custodial conditions are physically or emotionally harmful to the best
interest of the child.” Sec. 767.451(1)(a).
¶22 We briefly summarize the pertinent background.
¶23 After Megan learned of the June 20, 2019, incident described above,
she withheld placement for two days. Daniel responded by filing a petition to
enforce the placement order on June 26, 2019. Megan resumed placement on June
28, 2019. On July 9, 2019, Megan filed a motion to modify placement, requesting
that the circuit court “restrict Daniel’s placement time in an appropriate manner
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No. 2020AP574
until and unless Daniel has made genuine progress in treatment of his AODA and
mental health conditions.”
¶24 The circuit court held a “Temporary Placement Hearing” on July 18,
2019, for the purpose of, as stated by the court, developing “some means of
getting control of” the situation on a temporary basis until the situation could be
resolved on a more permanent basis. Megan’s counsel responded that getting
“control of the situation in a way that is for the welfare of the children at least on
an interim basis, that would be great.”
¶25 Based on the testimony and evidence presented at the hearing, the
circuit court found that Megan’s two-day withholding of placement was
reasonable and denied Daniel’s petition to enforce placement. The court also
temporarily reduced placement to give Daniel time to be properly diagnosed and
get proper treatment and clarified that the reduced placement schedule was to be
short-term, depending on Daniel’s “getting control of” his mental health. The
court reiterated in its “Interim Order” that:
[u]ntil progress is made by Daniel in assessing and
treating the issues identified above, it is in [S.]’s best
interest that his placement be modified. Such modification
is intended to be temporary in nature, with Daniel’s
participation and progress in treatment the primary
determinant of when some or all of his placement can
appropriately be restored.
After a status conference in late August 2019, the court issued a revised interim
order that slightly increased placement.
¶26 On December 20, 2019, the circuit court held a “Placement
Hearing,” at which Megan’s counsel argued that, given the seriousness of and
danger presented by Daniel’s bipolar disorder and his conduct in June 2019, the
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No. 2020AP574
court should at the least keep oversight of the situation by scheduling a review in
120 days, as recommended by the guardian ad litem, and, “[i]f it looks like
[Daniel] is continuing to make progress, we will try to work out the next step.” At
the conclusion of the hearing, the court acknowledged the danger that placement
with Daniel presented in June and July 2019, when Megan filed her motion and
“[t]here were some interim things that needed to be addressed,” but denied
Megan’s motion based on the circumstances existing at the time of the hearing in
December, including Daniel’s progress since June and July 2019 in addressing his
mental health, drinking, and sleeping issues. The court concluded that those
circumstances did not meet the statutory “physically or emotionally harmful”
standard.
¶27 We first interpret WIS. STAT. § 767.451(1)(a) and then explain why
we conclude that the circuit court did not erroneously exercise its discretion by
“misapplying” the statute when it denied Megan’s motion to modify placement at
the conclusion of the December hearing. When interpreting a statute, our analysis
begins with the statutory text. State ex rel. Kalal v. Circuit Ct. for Dane Cnty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. We give statutory language
its common, ordinary and accepted meaning. Id. We also interpret statutory
language “in the context in which it is used; not in isolation but as part of a whole;
in relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.” Id., ¶46. “If this process of
analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the
statute is applied according to this ascertainment of its meaning.” Id. (citation
omitted).
¶28 As explained, the statute states that the party seeking to modify
placement within two years of the divorce judgment must “show[] by substantial
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No. 2020AP574
evidence that the modification is necessary because the current custodial
conditions are physically or emotionally harmful to the best interest of the child.”
WIS. STAT. § 767.451(1)(a). The directive to “show[] by substantial evidence”
that “current custodial conditions” are harmful unambiguously requires the
moving party to meet his or her burden at an evidentiary hearing at which
evidence of the conditions existing at the time of the hearing is presented. It
would be absurd and unreasonable to construe this language as requiring the
circuit court to consider only a motion’s allegations of the custodial conditions and
to ignore the evidence of the existing conditions presented at a hearing on the
motion. The statute speaks in terms of “evidence,” not “allegations,” and in terms
of “current,” not “previous” conditions. Thus, we conclude that under the plain
language of § 767.451(1)(a), the evidence presented at a hearing, not a party’s
filings, governs the court’s modification decision.
¶29 Megan argues that it would be unreasonable for the moving party to
have to allege that the conditions at some unknown time in the future, depending
on the circuit court’s calendar, will be harmful. This argument disregards the
plain language of the statute, which as stated requires proof of current conditions,
not allegations of previous conditions, and misrepresents what the circuit court did
here.
¶30 The circuit court did not arbitrarily calendar the December hearing
or pre-determine that the December hearing would be the “final” hearing. As
shown above, the court held an initial hearing promptly after Megan filed her
motion, determined that the conditions proved at the hearing were harmful but also
that Daniel was taking steps to address those conditions, and determined that the
situation was not amenable to a quick resolution and therefore temporary
restrictions on placement and periodic revisiting of the situation were warranted
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No. 2020AP574
for the coming months. The court then relaxed the placement restrictions after a
status conference one month later and set another evidentiary hearing four months
after that. At that December 2019 hearing, Megan asked the court to continue
with a temporary placement order to be reviewed yet three months later. The
court implicitly rejected that request, determining that the evidence presented at
that hearing proved that custodial conditions were no longer harmful so as to
warrant modification, and, accordingly, denied Megan’s motion.
¶31 Megan focuses her argument on the facts proven at the July hearing,
asserts that those facts proved that custodial conditions were then harmful, and
argues that she was not required to again prove that custodial conditions were
harmful at the December hearing. The circuit court agreed that custodial
conditions were harmful when she filed her motion. Megan faults the court for
“delaying” the final hearing, but the record shows that the court did just what she
requested in her motion—modify placement based on the harmful circumstances
that existed when she filed her motion “until and unless” Daniel made “genuine
progress” in addressing the issues that made those circumstances harmful at that
time. Megan points to no language in the statute that prevented the court from
doing just that, based on the evidence before it in July 2019, when Daniel admitted
to his various issues and testified that he had begun treatment for them, and based
on the evidence before it in December 2019, when Daniel showed that he had
made “genuine progress” in addressing those issues. On the contrary, the circuit
court did just what the statute envisions—it modified placement immediately and
temporarily based on the harmful custodial conditions proven at the time Megan
filed her motion and reinstated placement as scheduled in the divorce judgment
based on the court’s finding that, five months later, the custodial conditions were
no longer harmful.
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¶32 Megan attempts to couch her argument in terms of the circuit court’s
authority, citing Gregory L.S. v. Gregory L.S., 253 Wis. 2d 563, 643 N.W.2d 890(Ct. App. 2002) for the proposition that, in the context of a juvenile court CHIPS
petition, the court’s jurisdiction is determined based on the circumstances existing
at the time the petition is filed. However, Megan cites no authority supporting her
argument that we should apply the law that governs juvenile court proceedings to
post-divorce judgment proceedings in family court. Moreover, Megan’s analogy
to juvenile court proceedings where, according to Megan, the court takes
jurisdiction based on the circumstances stated in the petition but determines the
disposition based on post-petition developments, is just what she argues should not
have happened here, where the court exercised its authority to temporarily limit
placement based on the circumstances proven at the time her motion was filed but
determined whether to permanently modify placement based on evidence of post-
motion developments.
¶33 We have ruled that, pursuant to WIS. STAT. § 767.451(1)(a), once the
circuit court has determined that the placement ordered in the divorce judgment
was not harmful to the child, the court “had no authority to modify the placement
order” within two years of the divorce judgment. Trost v. Trost, 2000 WI App
222, ¶5, 239 Wis. 2d 1, 619 N.W.2d 105 (citing Paul M.J. v. Dorene A.G., 181
Wis. 2d 304, 311, 510 N.W.2d 775 (Ct. App.1993). The circuit court acted
consistent with that principle here.
¶34 Ultimately, Megan’s argument that the circuit court “misapplied” the
statute is not that the court applied the wrong legal standard, but that the court
reached the wrong result based on the evidence before it at the December hearing.
That is precisely a challenge to the court’s exercise of discretion that we will not
disturb on appeal, where, as here, the record shows that “the court examined the
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No. 2020AP574
relevant facts, applied a proper standard of law and, using a demonstrated rational
process, reached a conclusion a reasonable judge could reach.” Glidewell, 364
Wis. 2d 588, ¶22.
¶35 In sum, Megan’s argument that the circuit court was required to
consider only the conditions alleged at the time of her motion is inconsistent with
the statutory language and with what she herself repeatedly asked the court to do:
in her motion, at the July hearing, and at the December hearing. For the reasons
explained above, her argument fails.
III. “Government Hands-Off” Policy
¶36 Megan argues that the circuit court erroneously applied a
“government hands-off” policy to Megan’s post-divorce judgment motion.
Specifically, Megan argues that the court erroneously reasoned that governmental
involvement is statutorily allowed only in juvenile court proceedings, ignored that
the government is involved when parties file a divorce action and that such
involvement continues when the parties file post-divorce judgment motions, and
improperly denied the motion instead of remaining involved in the post-divorce
litigation. This argument fails because it considers the court’s remarks in isolation
and out of context.
¶37 The record shows that Megan’s counsel first introduced the idea of
governmental involvement in his argument at the December 2019 hearing, in two
respects. First, he noted that a parent’s alcoholism, which he suggested is less
severe than the bipolar disorder suffered by Daniel here, can be a basis for the
government to remove a child from the parent’s home where the government
establishes that the child is in need of protection or services, and that in such a
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No. 2020AP574
case, “when a parent suffers from alcoholism, we have conditions of six months or
a year of sobriety before there’s a return home to any extent.”
¶38 Second, counsel stated as follows:
One of the failings of family court, in my opinion, is
that it is designed to end. It is designed to result in final
orders that the parties live with for potentially years
thereafter. Unlike juvenile cases where there is constant
supervision, ongoing jurisdiction, anticipation of extensions
or revisions and modifications. There's a temptation in
family law to say here's what I see before me today, I'm
going to assume that will continue indefinitely, and here's
your order.
¶39 Counsel then concluded that, building on these aspects of his
argument, the circuit court should at the least keep oversight of the situation by
scheduling a review in 120 days, as recommended by the guardian ad litem, and,
“[i]f it looks like [Daniel] is continuing to make progress, we will try to work out
the next step.”
¶40 At the start of its decision, the court stated:
[Counsel’s] point about the frustrations with family law is
well taken. But that statutory scheme is founded in the idea
that families who do not require ongoing government
intervention are left to decide how to operate their families.
Ongoing government intervention is only permitted if there
is a finding that a child is in need of protection or services,
or a juvenile in need of protection or services or
adjudicated delinquent. We don't have that here.
And the idea then is, as much as possible, a
government hands-off. I'm the government. I am
convinced that the only correct lawful answer on this
record is to deny the motion to modify placement.
¶41 Megan quotes these remarks, but without the very first and the very
last sentences. The first sentence establishes that the circuit court referenced the
idea of governmental involvement in response to counsel’s remarks and sought to
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No. 2020AP574
distinguish the highly intrusive step of removal of a child from a parent’s home on
the government’s initiative from the court’s role in divorce and post-divorce
litigation initiated by the parties. The last sentence establishes that the court
properly relied on the statutory standard here, which requires a final decision on a
motion to modify placement based on “current custodial conditions” and requires
that the court not step in unless those conditions are shown to be physically or
emotionally harmful to the child’s best interest.
¶42 The circuit court’s remarks as a whole establish that the court did not
shirk from its responsibility as “the government” to review the evidence presented
and decide Megan’s motion by applying the statutory standard—whether current
custodial conditions are physically or emotionally harmful to S’s best interest—to
that evidence.
¶43 In sum, Megan fails to show that the circuit court erroneously
applied a “government hands-off” policy here.
IV. Changed Circumstances
¶44 Megan argues that the circuit court “improperly focused on changed
circumstances” when it observed that Daniel’s mental health and drinking issues at
the time of the December 2019 hearing were no worse, and probably better, than
they were when the divorce judgment was entered. Specifically, Megan argues
that the “substantial change of circumstances” standard does not apply because her
motion to modify placement was filed within two years of the divorce judgment.
See WIS. STAT. § 767.451(1)(a) (applying to motions filed within two years of the
final divorce judgment the “necessary because the current custodial conditions are
physically or emotionally harmful to the best interest of the child” standard) and
(b) (applying to motions filed more than two years after the final divorce judgment
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No. 2020AP574
the “substantial change of circumstances” standard). Her argument continues that,
under the proper standard in WIS. STAT. § 767.451(1)(a), if she showed that the
placement schedule was physically or emotionally harmful to S, the circuit court
was required to modify placement regardless of whether or not the circumstances
had changed from the time of divorce.
¶45 In the alternative, and perhaps inconsistently, Megan argues that the
circuit court erroneously determined that she failed to show a substantial change of
circumstances at the time when she filed her motion.
¶46 Megan bases both arguments on the undisputed facts at the time she
filed her motion.
¶47 Both arguments fail for at least the following reasons. First, the
circuit court did not base its decision denying Megan’s motion to modify
placement on either the absence of a change in circumstances or on Megan’s
failure to show a substantial change of circumstances. Rather, it was expressly
because she failed to show that the current custodial conditions were physically or
emotionally harmful to S’s best interest that the court denied her motion.
¶48 As with her “government hands-off” argument, Megan relies on
certain of the court’s remarks in isolation and out of context. The court did state,
as Megan notes, the following:
The record is that his drinking problem precedes
Ms. Ballweg, through their marriage, during their marriage,
since their marriage; as does his marijuana use; as does his
bipolar; as does his sleep issues. These are not new. We
did have … the one very frightening incident. And the
mothers took appropriate action and Mr. Blank took
appropriate action. And we are now restored to as good as,
and probably better than, we were on October 9 of 2018, at
the divorce trial in this matter where the Court approved a
stipulation of the parties for shared placement.
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No. 2020AP574
If Mr. Blank was good enough to have shared
placement then, he's good enough to have shared placement
now.
The context of these remarks indicates that the court was focusing on the
“restoration” of the situation with respect to Daniel’s mental health, sleeping, and
drinking issues, in terms of whether that situation as it existed in December 2019
was physically or emotionally harmful to S., as compared with the undeniably
“harmful” situation that existed in June and July 2019. The court explained that
there was the one “harmful event” on the night of June 20, 2019, but that the
custodial conditions relating to Daniel’s mental health, drinking and sleeping
issues had improved and were “better than they have been,” because the treatment
Daniel sought and was still undergoing “appears at some level to be working.”
The court stressed how important it was that Daniel continue with his treatment so
as to prevent the custodial conditions from becoming harmful, as they were in
June and July 2019. The focus of the court’s reasoning was on the progress Daniel
had made since June 2019, in terms of what that progress meant as to whether the
custodial conditions in December 2019 were harmful to S.
¶49 Second, the circuit court acknowledged that Megan properly brought
her motion in July 2019, when the custodial conditions were harmful for S. Thus,
her arguments here amount to no more than a repackaging of her first argument
that the court erroneously based its final decision denying Megan’s motion on the
circumstances at the time of the December 2019 hearing rather than on the
circumstances when she filed her motion in June and July 2019. We have already
rejected that argument above.
¶50 Before concluding, we observe that, to the extent that Megan
indicates that she is raising her alternative argument now because the “substantial
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No. 2020AP574
change of circumstances” standard will apply if we remand insofar as more than
two years have elapsed since the divorce judgment here, her argument based on
the July 2019 circumstances is of no consequence because, just as the new
standard would apply should she now seek to modify placement, so would there
also be new evidence of whatever circumstances now exist.
CONCLUSION
¶51 For the reasons stated above, we conclude that the circuit court
properly exercised its discretion when it denied Megan’s motion to modify
placement.
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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