Julie C. Valadez v. Ricardo Valadez ( 2021 )

2022 WI APP 2
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2020AP1006
Complete Title of Case:
IN RE THE MARRIAGE OF:
JULIE C. VALADEZ,
PETITIONER-APPELLANT,
V.
RICARDO VALADEZ,
RESPONDENT-RESPONDENT.
Opinion Filed: December 29, 2021
Submitted on Briefs: October 14, 2021
JUDGES: Gundrum, P.J., Neubauer and Grogan, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the petitioner-appellant, the cause was submitted on the
briefs of Malinda J. Eskra of Reinhart Boerner Van Deuren s.c.,
Milwaukee, Jay C. Johnson (admitted pro hac vice) of Venable LLP,
Washington, D.C., and Elizabeth Vogel (admitted pro hac vice) and
Alexandra Drobnick (admitted pro hac vice) of DV LEAP, Washington,
D.C.
Respondent and On behalf of the respondent-respondent, the cause was submitted on the
Guardian ad Litem joint brief of Kurt M. Schuster of Schuster Law, S.C., Waukesha and on
ATTORNEYS: behalf of the Guardian ad Litem, the cause was submitted on the joint
brief of Molly J. Jasmer of Grady, Hayes & Neary, LLC, Waukesha.
2022 WI App 2COURT 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.
December 29, 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. 2020AP1006 Cir. Ct. No. 2018FA296
STATE OF WISCONSIN IN COURT OF APPEALS
IN RE THE MARRIAGE OF:
JULIE C. VALADEZ,
PETITIONER-APPELLANT,
V.
RICARDO VALADEZ,
RESPONDENT-RESPONDENT.
APPEAL from a judgment of the circuit court for Waukesha County:
MICHAEL J. APRAHAMIAN, Judge. Reversed and cause remanded with
directions.
Before Gundrum, P.J., Neubauer and Grogan, JJ.
¶1 NEUBAUER, J. Julie C. Valadez appeals from a judgment of
divorce terminating her marriage to her former husband, Ricardo Valadez. As
No. 2020AP1006
relevant to our disposition of this appeal, Julie1 argues that the circuit court erred in
awarding sole legal custody of their children to Ricardo based on its erroneous
conclusion that Ricardo overcame the statutory presumption against custody by
proving that he received batterer’s treatment from a certified treatment program or
a certified treatment provider. See WIS. STAT. § 767.41(2)(d)1.a. (2019-20).2
Because of the court’s finding that Ricardo engaged in a pattern of domestic abuse
against Julie, she similarly takes issue with the court’s decision granting the parties
shared placement without making the safety of Julie and the children the court’s
paramount concern, as required by § 767.41(5)(bm). For the reasons stated, we
reverse and remand with the directions specified below.
BACKGROUND
¶2 The following facts were found by the circuit court after a five-day
trial. We recite here only the findings that pertain to our analysis on appeal.
¶3 Julie and Ricardo were married in 2004 and had been married for
approximately sixteen years at the time of their divorce trial. They have four minor
children together, two of whom have been diagnosed with autism.
¶4 In late 2017, Ricardo was arrested and charged with a misdemeanor
for domestic abuse against Julie. Julie petitioned for divorce a few months after
Ricardo’s arrest and subsequently sought a domestic abuse injunction. Ricardo
stipulated to the entry of a four-year injunction, which prohibited him from
contacting Julie or entering the marital home, where Julie and the kids were living
1
For ease of reading, we use first names to refer to the parties because they share the same
surname.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
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at the time. After the injunction was issued, the circuit court entered a temporary
order which, among other things, gave Julie sole legal custody and primary
placement of the children and awarded Ricardo periods of supervised placement.
¶5 At some point after the injunction was issued, Ricardo entered the
marital home in contravention of the injunction. After the incident, Julie moved out
of the house and enrolled in the Wisconsin Department of Justice’s “Safe at Home”
program, which offers victims of domestic abuse and other crimes a legal substitute
address that can be used for public and private purposes. See Safe at Home:
Wisconsin’s Address Confidentiality Program, WIS. DEP’T OF JUST.,
https://www.doj.state.wi.us/ocvs/safe-home (last visited Dec. 13, 2021).
¶6 In early 2019, the state agreed to amend Ricardo’s misdemeanor
domestic abuse charge to disorderly conduct upon payment of restitution and
successful completion of alcohol and other drug abuse and domestic abuse
treatment. Julie was present at the sentencing hearing and objected to the
amendment of the charge because she did not believe that the counseling Ricardo
had completed with his licensed professional counselor, Tyler Loomis, was specific
to domestic violence. Nonetheless, the court (not the same judge who presided over
the injunction and divorce hearings) approved the amended charge, accepted
Ricardo’s plea of no contest thereto, and sentenced Ricardo accordingly.
¶7 While the divorce was pending and after the resolution of the domestic
abuse case, the guardian ad litem (GAL) submitted a proposed temporary order
modifying placement. The GAL believed that it was in the best interest of the
children to modify the existing order to allow Ricardo longer periods of placement
with the children. The court approved of the modification over Julie’s objection. A
couple of months before trial, the GAL submitted another proposed order to modify
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placement, this time proposing equal placement, which the court again granted over
Julie’s objection.
¶8 Both Julie and Ricardo testified and presented arguments to the court
at their divorce trial. Julie argued at trial that the court should not award custody to
Ricardo due to his history of domestic abuse against Julie. Julie asserted that
Ricardo failed to prove that he successfully completed a certified treatment program
aimed at combatting domestic abuse or saw a certified batterer’s treatment provider
such that he was able to overcome the presumption against custody. Ricardo argued
that he received counseling from Loomis that was aimed at dealing with Ricardo’s
abuse issue and that this was sufficient to overcome the presumption against
custody. The GAL agreed with Ricardo and asked the court to award Ricardo sole
legal custody.
¶9 The circuit court determined that Ricardo had engaged in a pattern of
domestic abuse and therefore the statutory presumption against awarding him
custody applied. See WIS. STAT. § 767.41(2)(d)1. Notwithstanding, the court
concluded Ricardo had rebutted the statutory presumption because he “successfully
completed domestic abuse treatment[,]” explaining as follows:
Although he did not complete a certified treatment program,
§ 767.41(2)(d)1. expressly contemplates equivalent
treatment from a certified treatment provider. Based on a
review of the treatment he received in [the domestic abuse
case], the Court finds that Mr. Valadez obtained equivalent
treatment from Tyler Loomis, who as a licensed professional
counselor (“LPC”) qualifies as a certified treatment
provider. In fact, the State in that case itself recognized that
this treatment was equivalent and satisfactory in accepting
the treatment and amending the charge.
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No. 2020AP1006
The court awarded sole legal custody of all four children to Ricardo. The court
further ordered “equal shared [physical] placement, with a weekly rotating
schedule.”
¶10 Julie appeals. We include additional facts as necessary below.
DISCUSSION
The Circuit Court Erred in Concluding Ricardo Rebutted the Presumption Against
Awarding Him Sole or Joint Custody
¶11 In determining custody, the circuit court found that Ricardo engaged
in a pattern of domestic abuse pursuant to WIS. STAT. § 767.41(2)(d)1., triggering a
rebuttable presumption that an award of joint or sole legal custody to Ricardo would
be “detrimental to the child[ren] and contrary to the best interest of the child[ren].”
The court determined that Ricardo rebutted the presumption by presenting evidence
that he “successfully completed treatment for batterers provided through a certified
treatment program or by a certified treatment provider,” see § 767.41(2)(d)1.a., and
that an award of sole legal custody to Ricardo was in the children’s best interest, see
§ 767.41(2)(d)1.b. Julie argues that the court erroneously determined that Ricardo
rebutted the statutory presumption against joint or sole custody.
¶12 Child custody and placement determinations are committed to the
sound discretion of the circuit court. Gould v. Gould, 116 Wis. 2d 493, 497, 342
N.W.2d 426 (1984). We will sustain a discretionary decision if the court examined
the relevant facts, applied a proper standard of law, and using a demonstrated
rational process, reached a conclusion that a reasonable judge could reach. Liddle
v. Liddle, 140 Wis. 2d 132, 136, 410 N.W.2d 196 (Ct. App. 1987). In addition, we
affirm the circuit court’s findings of fact unless they are clearly erroneous, WIS.
STAT. § 805.17(2), but we independently review any questions of law, Clark v.
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No. 2020AP1006
Mudge, 229 Wis. 2d 44, 50, 599 N.W.2d 67 (Ct. App. 1999). A court erroneously
exercises its discretion if it applies the wrong legal standard. Brown County v.
Shannon R., 2005 WI 160, ¶37, 286 Wis. 2d 278, 706 N.W.2d 269.
¶13 WISCONSIN STAT. § 767.41(2)(d)1. creates a rebuttable presumption
that a parent who commits domestic violence against the other parent is not entitled
to joint or sole custody of the children. It provides in relevant part as follows:
[I]f the court finds by a preponderance of the evidence that a
party has engaged in a pattern or serious incident of
interspousal battery, ... or domestic abuse, ... there is a
rebuttable presumption that it is detrimental to the child and
contrary to the best interest of the child to award joint or sole
legal custody to that party. The presumption under this
subdivision may be rebutted only by a preponderance of
evidence of all of the following:
a. The party who committed the battery or abuse has
successfully completed treatment for batterers provided
through a certified treatment program or by a certified
treatment provider and is not abusing alcohol or any other
drug.
b. It is in the best interest of the child for the party who
committed the battery or abuse to be awarded joint or sole
legal custody based on a consideration of the factors under
sub. (5)(am).
Sec. 767.41(2)(d)1.a.-b.
¶14 None of the parties to this appeal challenges the circuit court’s finding
that Ricardo engaged in a pattern of domestic abuse such that the presumption
against custody applies to him.3 See WIS. STAT. § 767.41(2)(d)1. Where they
disagree is whether Ricardo rebutted the statutory presumption by proving that he
3
Ricardo and the GAL submitted a joint brief on appeal. Therefore, when we refer to the
arguments made by Ricardo, they also encompass the GAL’s position.
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No. 2020AP1006
successfully completed “a certified treatment program” or other “treatment for
batterers … by a certified treatment provider.” See § 767.41(2)(d)1.a.
¶15 The resolution of this issue requires us to interpret WIS. STAT.
§ 767.41(2)(d)1. The “purpose of statutory interpretation is to determine what the
statute means so that it may be given its full, proper, and intended effect.” State ex
rel. Kalal v. Circuit. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681
N.W.2d 110. Statutory interpretation begins with the language of the statute. If the
meaning of the words are plain and unambiguous, a court’s inquiry ends and there
is no need to consult extrinsic sources of interpretation, such as legislative history.
Id., ¶¶45, 46. Statutory language is given its “common, ordinary, and accepted
meaning, except that technical or specially-defined words or phrases are given their
technical or special definitional meaning.” Id., ¶45.
¶16 Statutes are “read where possible to give reasonable effect to every
word, in order to avoid surplusage.” Id., ¶46. When courts interpret a statute, they
are not at liberty “to disregard the plain, clear words of the statute.” Id. (citation
omitted). “If the meaning of the statute is plain,” courts “ordinarily stop the inquiry
and give the language its ‘common, ordinary, and accepted meaning.’” Noffke ex
rel. Swenson v. Bakke, 2009 WI 10, ¶10, 315 Wis. 2d 350, 760 N.W.2d 156(citation omitted). “A dictionary may be utilized to guide the common, ordinary
meaning of words.” Id.¶17 Ricardo testified that as part of the plea deal in his criminal case, he
received “counseling for domestic abuse, anger and drinking through my counselor,
Tyler [Loomis].” But Loomis did not testify, and Ricardo offered no other
information about his counselor or the nature of his treatment. As we now explain,
that is not enough evidence to establish that Ricardo received “treatment for
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No. 2020AP1006
batterers provided through a certified treatment program or by a certified treatment
provider.” See WIS. STAT. § 767.41(2)(d)1.a.
¶18 In finding that Ricardo had “successfully completed domestic abuse
treatment,” the circuit court took “judicial notice” of the amended criminal charge.
The court reasoned that because the state had “accepted” Ricardo’s treatment in a
criminal plea deal, that same treatment sufficed to rebut WIS. STAT. § 767.41(2)(d)’s
presumption against awarding custody to an abuser. Ricardo suggests that we, like
the circuit court, should review the CCAP entries in Ricardo’s criminal case and
rely on the fact that the district attorney’s office approved Ricardo’s treatment to
conclude that he has met his burden of presenting evidence sufficient to overcome
the presumption against custody. However, Ricardo fails to explain why it matters
in this case that a prosecutor accepted his treatment for purposes of entering a plea
agreement in a case that did not have a statute with the same requirements as §
767.41, which requires “treatment for batterers provided through a certified
treatment program or by a certified treatment provider” to rebut the presumption.
See id. Whether Loomis’ counseling and credentials met that standard is a statutory
interpretation question that cannot be answered by looking to a plea deal in a
separate criminal case involving a different set of statutes and different
considerations, when nothing suggests it met the statutory requirements at issue
here.
¶19 In accepting Ricardo’s argument that if the treatment was sufficient
for the plea deal, it is sufficient under the custody statutes, the circuit court
specifically acknowledged that Ricardo did not participate in a certified treatment
program. However, without citing to any controlling cases or other legal support,
the court determined that WIS. STAT. § 767.41(2)(d) allows for something other than
certified programs or providers, concluding that any licensed professional counselor
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No. 2020AP1006
can be considered a “certified” provider for purposes of rebutting the statutory
presumption. As defined in our statute addressing licensed professionals,
professional counseling covers a wide range of methods and models aimed at
“achiev[ing] mental, emotional, physical, social, moral, educational, spiritual,
vocational or career development and adjustment.” WIS. STAT. § 457.01(6).
Section 767.41(2)(d), on the other hand, is aimed at something more specific:
“treatment for batterers provided through a certified treatment program or by a
certified treatment provider.” In that context, “certified” would imply a certification
to treat batterers, not the more generalized work of a licensed professional
counselor.
¶20 In rendering its decision here, the circuit court read words into the
statute that are not there, indicating that the statute “expressly contemplates
equivalent treatment” and ignored words that are there—“treatment for batterers
provided through a certified treatment program or by a certified treatment provider.”
See WIS. STAT. § 767.41(2)(d). Courts “are bound to apply the plain language of
the statute enacted by the legislature.” Keller v. Kraft, 2003 WI App 212, ¶17, 267
Wis. 2d 444, 671 N.W.2d 361. As a fundamental tenet of statutory interpretation,
where possible, we render no word in a statute surplusage, but instead give meaning
to every word. See Enbridge Energy Co. v. Dane County, 2019 WI 78, ¶28, 387
Wis. 2d 687, 929 N.W.2d 572 (Statutory construction should not “create[] an
avoidable surplusage problem[;]” rather, “[i]f possible, every word and every
provision is to be given effect …. None should be ignored. None should needlessly
be given an interpretation that causes it ... to have no consequence.” (citation
omitted)).
¶21 We see nothing in the statute indicating that it contemplates treatment
that is not aimed at batterers and provided by a certified program or provider. We
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No. 2020AP1006
must assume that the legislature chose to specify certified programs and providers
by design and for a reason. We cannot ignore these words or assume that the
legislature included them without assigning any meaning to them. See Kalal, 271
Wis. 2d 633, ¶46.
¶22 WISCONSIN STAT. § 767.41 does not define “certified treatment
program” or “certified treatment provider” or even “certified.” As such, we may
look to the common meaning of the term. “Certified” commonly means “endorsed
authoritatively: guaranteed or attested as to quality, qualifications, fitness or
validity.” Certified, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (3d ed.
1993). To provide an example of when “certified” may be properly used in the
context of a profession, Webster’s defines a “certified public accountant” in relevant
part as “an accountant … who has met the requirements of a state law and has been
granted a state certificate.” Certified Public Accountant, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (3d ed. 1993). It follows from these definitions that
a certified treatment provider for batterers would be a treatment provider “who has
met [certain] requirements” to justify granting him or her “a certificate” indicating
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No. 2020AP1006
that he or she has been “endorsed authoritatively” as qualified and fit to treat
batterers.4
¶23 Applying these principles and common definitions, we conclude that
the words enacted by the legislature mean that one may only overcome the
presumption against sole or joint custody set forth in WIS. STAT. § 767.41(2)(d)1.
by successfully completing treatment designed for batterers and provided by a
certified program or provider. We cannot ignore the plain language of the statute
that so requires, nor can we assume that the words are mere surplusage. We
therefore conclude that the circuit court erred in deciding that Ricardo overcame the
presumption against custody on this ground and remand to the court because
§ 767.41 does not allow Ricardo to be awarded custody until he has successfully
completed the proper treatment. See Schwantes v. Schwantes, 121 Wis. 2d 607,
622, 360 N.W.2d 69 (Ct. App. 1984) (courts have no power to award custody of
minor children other than as provided by statute).5 We note that the court ordered
4
Given Ricardo’s failure to establish that he successfully completed a certified batterer’s
treatment program, we need not address the particulars of what precisely is required to qualify. We
note, however, that Wisconsin has a special set of batterer’s treatment standards and a special
organization—the Wisconsin Batterers Treatment Providers Association—that certifies providers
who apply those standards. See WISCONSIN BATTERERS TREATMENT PROVIDER ASSOCIATION,
https://thewbtpa.com (last visited Dec. 13, 2021). As the Domestic Abuse Guidebook for
Wisconsin Guardians Ad Litem explains, the term “Certified Batterer Treatment
refers to certification through the Wisconsin Batterer Treatment Provider Association (WBTPA)”
and “[t]he WBTPA is the only statewide organization that provides this certification.” Governor’s
Council on Domestic Abuse & End Domestic Abuse Wisconsin, Domestic
Abuse Guidebook for Wisconsin Guardians Ad Litem at 95 (March 2017),
https://www.wicourts.gov/publications/guides/docs/galguidebook.pdf. The Domestic Abuse
Guidebook for Wisconsin Guardians Ad Litem is found on the court’s website at www.wicourts.gov
and contains a list of current certified treatment providers.
5
Because our decision as to Ricardo’s failure to demonstrate that he participated in a
certified treatment program or was treated by a certified provider is dispositive, we do not address
the parties’ other arguments surrounding the circuit court’s custody determination. See Sweet v.
Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (if we resolve an appeal based on one
issue, we need not decide the other issues).
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No. 2020AP1006
many conditions when awarding custody, such as requiring Ricardo to maintain
absolute sobriety, identifying required communications regarding custody
decisions, input on custody decisions, keeping the children in and with their same
schools and doctors, and therefore we remand to the circuit court to reconsider its
custody decision in light of our decision.
Given Ricardo’s Pattern of Domestic Abuse, the Circuit Court Failed to Address
the Applicable Statutory Requirement When Ordering Placement
¶24 As with custody determinations, we review a circuit court’s decisions
regarding physical placement under an erroneous exercise of discretion standard and
“affirm the circuit court’s decisions when the court applies the correct legal standard
and reaches a reasonable result.” Landwehr v. Landwehr, 2006 WI 64, ¶7, 291
Wis. 2d 49, 715 N.W.2d 180. Julie argues that here the circuit court erroneously
exercised its discretion by failing to consider, or even mention, the standard set forth
in WIS. STAT. § 767.41(5)(bm), which applies when a court finds that one parent
has engaged in a pattern of domestic abuse, when ordering shared placement of the
children for Julie and Ricardo. Ricardo fails to even refer to § 767.41(5)(bm) when
attempting to defend the circuit court’s placement decision in direct response to
Julie’s criticism thereof, thereby conceding Julie’s argument on this point. See
United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578 (arguments not refuted may be deemed conceded).
¶25 “Courts … have no power in awarding placement other than that
provided by statute.” Wolfe v. Wolfe, 2000 WI App 93, ¶17, 234 Wis. 2d 449, 610
N.W.2d 222. WISCONSIN STAT. § 767.41(5)(bm) provides that when a court finds
a pattern of domestic abuse, “the safety and well-being of the child and the safety
of the parent who was the victim of the ... abuse shall be the paramount concerns in
determining legal custody and periods of physical placement.” This is not a
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rebuttable presumption, like the one addressing legal custody. The court’s finding
that Ricardo engaged in a pattern of domestic abuse against Julie automatically
makes the safety of Julie and her children the most important factor in any physical
placement determination.
¶26 The circuit court made no mention of WIS. STAT. § 767.41(5)(bm)
when it ordered “equal shared placement.” As stated above, Ricardo effectively
concedes this failure by the court. Given our reversal based on the court’s erroneous
conclusion that Ricardo overcame the statutory presumption that he successfully
completed the proper treatment, we decline to search the record to support the circuit
court’s decision. While the court made extensive findings regarding the parties’
allegations and credibility, and placed various conditions in its order designed to
ensure safety, we would be speculating as to the role the court’s erroneous custody
decision had in its placement decision. Thus, we remand to the court to reconsider
its placement determination.6
CONCLUSION
¶27 For the foregoing reasons, we conclude that the circuit court erred in
determining that Ricardo proved by a preponderance of the evidence that he rebutted
the presumption against custody by successfully completing treatment aimed at
batterers provided through a certified treatment program or by a certified treatment
provider and that the court failed to explicitly apply the proper legal standard set
forth in WIS. STAT. § 767.41(5)(bm) requiring the court to make Julie’s safety and
6
Julie also argues that the court erroneously exercised its discretion in failing to equally
divide the parties’ retirement accounts. We agree with Ricardo that the court appears to have
appropriately taken into account all retirement accounts. However, both parties agree that the court
awarded Ricardo $2600 more than Julie from this asset class. Because the court divided the
property on an asset by asset class basis, and stated an intention to equally divide the assets but
failed to explain the deviation, the court should address on remand what appears to be a mistake.
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No. 2020AP1006
that of her children a paramount concern in determining placement. Accordingly,
we reverse and remand to the circuit court to conduct further proceedings consistent
with this opinion.
By the Court.—Judgment reversed and cause remanded with
directions.
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