Jon Ronald Krueger v. Rachelle Siobhan Wharton ( 2022 )

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.
February 10, 2022
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. 2021AP51 Cir. Ct. No. 2019PA310PJ
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
IN RE THE PATERNITY OF M.K.W.:
JON RONALD KRUEGER,
PETITIONER-RESPONDENT,
V.
RACHELLE SIOBHAN WHARTON,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Dane County:
FRANK D. REMINGTON, Judge. Affirmed.
Before Blanchard, P.J., Graham, 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. 2021AP51
¶1 PER CURIAM. Jon Ronald Krueger filed this paternity action in an
attempt to establish his parental rights to, and legal responsibilities for, M.K.W.
The circuit court adjudicated him the father and made related rulings. M.K.W.’s
mother, Rachel Siobhan Wharton, has not disputed that Krueger is M.K.W.’s
biological father. Instead, on appeal Wharton challenges the following four circuit
court decisions: denial of her motion to remove the attorney acting as the guardian
ad litem (GAL) for M.K.W.; denial of her motion to dismiss this action, without a
paternity adjudication, on the ground that an adjudication would not be in
M.K.W.’s best interest; granting of Krueger’s request for joint custody; and
granting of Krueger’s request for partial placement. We affirm each challenged
ruling.
BACKGROUND
¶2 For a combination of reasons, litigation in this paternity case has
been unusually prolonged. The following summary includes only events that,
when considered together with additional facts referenced in the Discussion
section below, are necessary to understand the specific issues addressed in this
appeal and the grounds for our decisions.
¶3 Wharton and Krueger dated between September 2017 and February
2018. Wharton gave birth to M.K.W. in September 2018. Krueger filed this
paternity action in April 2019. See WIS. STAT. § 767.80(1)(d) (2019-20)
(categories of persons who may bring paternity action include “[a] male alleged or
alleging himself to be the father of the child).1 Krueger submitted supporting
1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
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affidavits and requested that a court commissioner hold a hearing to address “[t]he
issues of paternity, custody, placement, support, health insurance and payment of
birth expenses.” It is undisputed that Krueger and Wharton have never been
married and that neither was married to anyone else when M.K.W. was conceived.
¶4 Wharton moved to dismiss the action based on her averments that:
Krueger “has no relationship with the minor child,” meaning that he had no history
of interactions with M.K.W.; Krueger “sexually assaulted [Wharton] when he had
sexual intercourse with [her] without her permission after she repeatedly said no to
him and explained to him that she wanted to remain abstinent”; Krueger “harassed
[Wharton] during her pregnancy, which caused her extreme emotional distress”;
and Wharton had obtained a harassment injunction that was then in place against
Krueger.2 Based on these allegations, Wharton contended that proceeding to an
adjudication of paternity would not be in M.K.W.’s best interest and dismissal of
this action was appropriate under WIS. STAT. § 767.855.
¶5 Krueger opposed the motion to dismiss and urged the court
commissioner to hold an initial hearing to allow Krueger to present evidence
2
Regarding the sexual assault allegation, Wharton specifically alleged in later
proceedings that, during the course of their brief romantic relationship, Krueger had engaged in
conduct that would constitute one or more violations of WIS. STAT. § 940.225(3) by engaging in
sexual intercourse with her when she had not given consent, as that term is defined in
§ 940.225(4) (defining consent in pertinent part to mean “words or overt actions … indicating a
freely given agreement to have sexual intercourse.”). There was also reference to § 940.225(1)(a)
(sexual intercourse without consent causing pregnancy).
Regarding the harassment injunction, it is undisputed that, between M.K.W.’s birth and
the filing of this paternity action, Wharton obtained a four-year harassment injunction against
Krueger (lasting until February 11, 2023) in Dane County Circuit Court based on her allegations
that Krueger had harassed her over the course of the prior year and used the telephone and email
for abusive and threatening communications.
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supporting his position “that proceeding with a genetic determination of paternity
is in the child’s best interests.”
¶6 In June 2019, a commissioner appointed attorney John Louderman
as the GAL for M.K.W. and he conducted a preliminary investigation. The circuit
court took over the case from the commissioner.
¶7 At a circuit court hearing, Wharton did not dispute that Krueger is
M.K.W.’s biological father. Her argument was that, regardless of that fact, the
circuit court should consider evidence that she argued would establish that
Krueger had non-consensual sexual intercourse with her and, based on this
evidence, the court should dismiss the action pursuant to WIS. STAT. § 767.855.
That statute provides that the court may dismiss a paternity action if it determines
that making a paternity determination would not be in the child’s best interest.3
The GAL informed the court that Krueger and Wharton had given the GAL “two
entirely different” versions of historical events. For this reason, the GAL
indicated that the circuit court needed to conduct an evidentiary hearing and make
3
WISCONSIN STAT. § 767.855 provides in pertinent part:
[A]t any time in an action to establish the paternity of a child,
upon the motion of a party or guardian ad litem, the court or
supplemental court commissioner … may, if the court or
supplemental court commissioner determines that a judicial
determination of whether a male is the father of the child is not
in the best interest of the child, dismiss the action with respect to
the male, regardless of whether genetic tests have been
performed or what the results of the tests, if performed, were.
Notwithstanding [citing provisions not pertinent here], if genetic
tests have not yet been performed with respect to the male, the
court or supplemental court commissioner is not required to
order those genetic tests.
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relevant factual findings before the GAL could make properly informed
recommendations to the court about what would be in M.K.W.’s best interest.
¶8 Krueger filed a brief and affidavit with attachments purporting to
reflect communications between Wharton and Krueger intended to counter
Wharton’s allegations of non-consensual sexual intercourse and harassment.
Krueger also argued that he “has a constitutionally protected liberty interest in his
putative paternity” and that “a judicial determination of whether Krueger is
[M.K.W.’s] father is in [M.K.W.’s] best interest.” Wharton filed a new affidavit,
aimed at countering averments in Krueger’s affidavit.
¶9 At a hearing in October 2019, the circuit court took evidence from
two witnesses called by Wharton. Separately, the court made a referral to the
Family Court Services agency for a study by a family court counselor, which
would not be completed until August 2020, due in part to the emergence of the
pandemic.
¶10 As discussed in more detail in the Discussion section below, in
December 2019, immediately before a scheduled hearing for the resumption of
testimony, Wharton filed a motion requesting that the circuit court terminate
Louderman’s GAL appointment, accompanied by supporting affidavits from
Wharton and her attorney. The circuit court denied this motion.
¶11 Also in December 2019, at a resumed evidentiary hearing regarding
Wharton’s motion to dismiss, the circuit court heard testimony from Wharton,
Krueger, and others. The circuit court determined that dismissal of this action
would not be in M.K.W.’s best interest and denied the motion. The court
remanded the case to the commissioner with directions to enter a judgment of
paternity, which the commissioner did in February 2020. The paternity judgment
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awarded sole legal custody to Wharton on an interim basis. In March 2020, the
commissioner issued an interim order establishing prospective child support
payments that Krueger was obligated to pay and granting Krueger weekly
placement with M.K.W. in “a therapeutic setting” as arranged by the GAL.
¶12 In July 2020, Krueger filed a motion to change physical placement
“to be at least 50/50 ASAP,” and alleged that “placement as ordered is not taking
place.”
¶13 The author of the Family Court Services study concluded in August
2020 that she lacked sufficient information to recommend a specific placement
schedule. But she did recommend that Krueger continue to have regular,
supervised visits with M.K.W. at least once a week. The author opined that such
visits would further the goal of making Krueger a more regular part of M.K.W.’s
life, and not merely “a visitor” to the child, who was about to turn two.
¶14 At a continued evidentiary hearing in October 2020, the court heard
additional testimony from Wharton and Krueger, as well as testimony from: the
family court counselor who wrote the study; Krueger’s employer at a child day
care center where Krueger was then employed; an employee of a social service
agency where Krueger had supervised visits with M.K.W.; and Wharton’s partner,
who testified that he considered himself to be “a father figure” to M.K.W. At the
close of this hearing, the circuit court made rulings that included the following.
Applying the relevant terms of WIS. STAT. § 767.41(2), which guides
determinations of joint or sole custody, the court awarded the parties joint custody,
giving Wharton impasse authority regarding medical decisions. Regarding the
physical placement schedule, the court removed the condition that Krueger was
required to see M.K.W. only when under supervision by a third party. Instead, the
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court adopted (with slight modifications) the GAL’s detailed schedule
recommendation, essentially giving Wharton nine total days and Krueger five total
days in a repeating two-week schedule. The court also ordered child support
based on the standard guidelines for a shared placement schedule.
DISCUSSION
I. DENIAL OF MOTION TO REMOVE GAL
¶15 Wharton argues that the circuit court erroneously exercised its
discretion in denying her motion to remove attorney Louderman as the GAL
because the court should have made one or both of the following rulings:
(1) failing to remove the GAL would deprive Wharton of her substantive due
process right against arbitrary, wrong, or oppressive state action or (2) the GAL
would not, or could not, perform his statutory duties. Wharton’s underlying
argument is that the circuit court should have removed the GAL because, she
submitted, he had expressed outmoded attitudes and understandings on the topic of
sexual assault and demonstrated an unwillingness to consider Wharton’s
allegations that Krueger had sexually assaulted her. We agree with Krueger and
the GAL (who has submitted an appellate brief to address this issue exclusively)
that Wharton fails to establish that the circuit court erroneously exercised its
discretion based on either of the two grounds she raises.
¶16 We review a circuit court decision regarding the appointment of a
guardian for an erroneous exercise of discretion. See Tamara L.P. v. County of
Dane, 177 Wis. 2d 770, 774-75, 785-86, 503 N.W.2d 333 (Ct. App. 1993) (circuit
court erroneously exercised its discretion in appointing attorney as GAL for a
ward in temporary guardianship proceedings because the attorney had previously
acted as adversary counsel in the involuntary commitment proceedings; under the
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“substantial relationship” test, the circuit court was required as a matter of law to
disqualify the attorney based on a potential conflict of interest). We uphold a
circuit court’s 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.” Long v. Long, 196
Wis. 2d 691, 695, 539 N.W.2d 462 (Ct. App. 1995).
¶17 “Whether state action constitutes a violation of due process presents
a question of law, which this court decides independently.” State v. Neumann,
2013 WI 58, ¶32, 348 Wis. 2d 455, 832 N.W.2d 560.
¶18 Wharton purports to draw from Tamara L.P. the general proposition
that, as Wharton puts it, a circuit court erroneously exercises its discretion when
the court “declines to discharge a guardian ad litem who does not, or cannot,
perform his [or her] statutory duty.” For purposes of resolving this appeal we
accept that as a correct statement of the law.
A. Additional Background
¶19 Wharton’s motion to remove attorney Louderman was filed six
months after his appointment as GAL. It was based on the following averments in
affidavits that Wharton and her attorney submitted to the circuit court.
¶20 Wharton averred the following. She, her attorney, and Louderman
had an out-of-court, in-person conversation in December 2019. During this
conversation, the topic of the alleged sexual assault was discussed. Louderman at
one point said, “‘if it were a traditional rape, as in the case of a stranger, that might
affect my recommendation but…’” (ellipse in original). Wharton did not hear
what came next, either because she was too upset or because she left the room.
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¶21 In her motion to remove attorney Louderman, Wharton argued that
the implication of attorney Louderman’s alleged statement was that he
inaccurately believed that there is a distinction under Wisconsin law between a
sexual assault committed by a person known by the victim (more specifically, a
person in a domestic relationship with the victim) and the same act committed by a
stranger to the victim, and that this inaccurate understanding rendered attorney
Louderman unfit to be a GAL in this paternity case.
¶22 The second averment was made by Wharton’s counsel, based on
hard copies of two emails allegedly exchanged between counsel and attorney
Louderman. The first email was from Wharton’s counsel to attorney Louderman.
It states in its entirety (with the salutation and signature block removed):
I did not have the statute in front of me during our
interview, but [WIS. STAT. §] 767.407 provides that a
guardian ad litem does have a responsibility to investigate
whether there is evidence of domestic abuse:
[WIS. STAT. §] 767.407
(4) RESPONSIBILITIES. The guardian ad litem shall
be an advocate for the best interests of a minor child as to
paternity, legal custody, physical placement, and support.
The guardian ad litem shall function independently, in the
same manner as an attorney for a party to the action, and
shall consider, but shall not be bound by, the wishes of the
minor child or the positions of others as to the best interests
of the minor child. The guardian ad litem shall consider the
factors under s. 767.41(5)(am), subject to s. 767.41(5)(bm),
and custody studies under s. 767.45(14). The guardian ad
litem shall investigate whether there is evidence that either
parent has engaged in interspousal battery, as described in
s. 940.19 or 940.20(1m) or domestic abuse, as defined in
s. 813.12(1)(am), and shall report to the court on the results
of the investigation. The guardian ad litem shall review
and comment to the court on any mediation agreement and
stipulation made under s. 767.45(12) and on any parenting
plan filed under s. 767.41(1m). Unless the child otherwise
requests, the guardian ad litem shall communicate to the
court the wishes of the child as to the child’s legal custody
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or physical placement under s. 767.41(5)(am)2. The
guardian ad litem has none of the rights or duties of a
general guardian.
The second email accompanying counsel’s affidavit was a purported response by
attorney Louderman to the first email, which stated in its entirety (again, without
salutation or signature line):
I am in receipt of your email and the statutes. As I
believe I indicated to you multiple times in our meeting, I
have investigated and the results of my investigation will
be used in the issue of placement if your motion [to dismiss
the action without adjudication] is denied. I do not believe
that you can bootstrap the statute with regard to sexual
assault to this statute. Further, I am not the trier of fact and
I do not believe that there is a clear understanding of the
facts available to me.
Emphasizing the sentence that includes the word “bootstrap,” Wharton argued to
the circuit court that this “indicate[s] that he does not believe sexual assault is
domestic violence … and that it is not his job to investigate whether or not sexual
assault occurred.”
B. Circuit Court Ruling
¶23 Attorney Louderman failed to provide the circuit court with evidence
or explanation regarding the averments just summarized. The circuit court,
without making any factual findings on these topics, assumed without deciding
that the averments were accurate. Based on those assumptions, the court said that
it was “troubled” by statements attributed to attorney Louderman. However, the
court concluded that the following two factors weighed against granting the
motion: the need for the court to resolve the case in a timely fashion, and the
limited role of a GAL in a paternity action as compared with the responsibilities of
the court to understand all relevant facts and correctly apply the legal standards.
For these reasons, the court ruled that the specific concerns that Wharton raised
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regarding alleged attitudes and understandings of attorney Louderman did not
merit his removal.
C. Analysis
¶24 The purported substantive due process basis for Wharton’s argument
is unsupported and undeveloped. First, it depends on the sweeping, unsupported
assertion that allowing attorney Louderman to continue in his role “impermissibly
tainted the entire proceeding.” At best, Wharton asks us to speculate about a
pervasive taint that, in unidentified ways, might have flowed from attorney
Louderman’s alleged attitudes and understandings related to the topic of sexual
assault. Second, Wharton does not direct us to legal authority for the proposition
that a circuit court presiding over a paternity action is obligated under the
circumstances as she alleged them to terminate a GAL appointment to protect the
substantive due process rights of one parent. It is sufficient to note that Wharton
does not explain, based on legal authority, what substantive due process rights a
parent could have regarding the identity of the GAL, who represents the interests
of the child, not the rights of the parent. See WIS. STAT. §§ 767.407, 767.82(1);
Hollister v. Hollister, 173 Wis. 2d 413, 418, 496 N.W.2d 642 (Ct. App. 1992)
(“the guardian ad litem is first and foremost an advocate for the child’s best
interests”).
¶25 This leaves the argument that the circuit court erroneously exercised
its discretion because Wharton demonstrated that the GAL would not, or could
not, perform his statutory duties. We conclude that the record supports the
discretionary decision of the circuit court, which was based on factors that
Wharton fails to adequately address.
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¶26 We infer that the first alleged statement by the GAL, about
“traditional rape,” necessarily raised for the circuit court a legitimate issue as to
whether the GAL was willing and able to fulfill his statutory duties on the facts of
this case. However, as we explain further beginning in the next paragraph, this
alleged statement essentially stands alone as a basis for Wharton’s motion because
the GAL’s statements in the email were, at worst, ambiguous in suggesting
improper attitudes or understandings by the GAL. Given that interpretation of the
record, we conclude that the circuit court’s reasoning was sufficient to support
denial of the motion, even assuming a problematic attitude and understanding
reflected in the “traditional rape” comment.
¶27 It is not clear what the GAL meant in his email by stating, “I do not
believe that you can bootstrap the statute with regard to sexual assault to this
statute.” Wharton’s counsel apparently did not seek to clarify what the GAL
meant at the time of their communications. Further, whatever the precise meaning
of this “bootstrap” reference, it appears to have involved one or more legal
conclusions. As the circuit court noted, it had an independent duty to interpret the
law regardless of any legal conclusions reached by the GAL. Further, the court
held extensive evidentiary hearings to take testimony directly, not filtered through
the investigative lens of the GAL. Notably, in its discussion with the parties the
circuit court made clear that, whatever attorney Louderman intended to convey to
Wharton and her counsel in making the alleged “traditional rape” comment, the
court itself did not draw a false distinction between an act of sexual assault that is
committed by a stranger to the victim or instead committed by a non-stranger,
explaining correctly that it is “domestic abuse” to have sexual intercourse with a
woman who does not consent to it while in a domestic relationship.
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¶28 Turning to the investigation topic, the out-of-court references by the
GAL to the investigation topic might have been ambiguous. But in any case, they
did not make clear that attorney Louderman would not investigate or participate in
the investigation of alleged domestic violence. Wharton now suggests that the
circuit court was obligated to interpret the statements as demonstrating an
unwillingness to look into or consider her claim of domestic abuse through
nonconsensual sexual intercourse. But the GAL stated in the email that he had
investigated. Further, he suggested the view that his investigatory role as GAL
could be satisfied in pertinent part through his observation of testimony in court
hearings, as supplemented by fact finding by the circuit court. This view was
entirely consistent with our background summary above that the GAL urged the
circuit court to hold an evidentiary hearing to address conflicts between the
accounts given by Wharton and Krueger. It cannot reasonably be disputed that a
GAL in this context can sufficiently “investigate” through his or her participation
in evidentiary court hearings. Summing up on this point, one reasonable
interpretation of the GAL’s email was that he needed counsel for the parties to
elicit testimony in court, which he anticipated happening, before he could gain, as
he put it, “a clear understanding of the facts available to me.”
¶29 Finally on this topic, it significantly undermines Wharton’s
argument that her briefing fails to address the circuit court’s reasoning that the
delays that would necessarily result from granting the motion weighed against
granting it. This would have involved the time needed to identify and appoint a
new GAL and then to allow this person to duplicate all of attorney Louderman’s
work to get up to speed in a relatively complicated paternity action. The court
understandably wanted to avoid unnecessarily further prolonging a paternity
action involving a two-year-old child who had little or no familiarity with a
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biological father who was seeking a parental role through judicial process.
Through silence on the delay topic, Wharton now essentially concedes that, in
exercising its discretion, the circuit court could acknowledge concern about the
GAL’s attitudes or understanding of the law but ultimately place significant
weight on the need for the court, applying relevant facts to pertinent law, to
resolve the case in a timely fashion.
II. DENIAL OF WHARTON’S MOTION TO DISMISS THIS
PATERNITY ACTION
¶30 Wharton argues that the circuit court erred in denying her motion to
dismiss Krueger’s paternity action, rejecting her argument that adjudication “is not
in the best interest of the child” pursuant to WIS. STAT. § 767.855.
¶31 We review best-interest determinations in paternity proceedings by
accepting circuit court factual findings unless they are clearly erroneous, but we
determine the child’s best interest de novo. See Douglas L. v. Arika B., 2015 WI
App 80, ¶18, 365 Wis. 2d 257, 872 N.W.2d 357.
A. Circuit Court Explanation Of Ruling
¶32 The circuit court made statements that included the following in
support of its ruling denying the motion to dismiss.
¶33 Regarding the sexual assault allegations, the court said in part that it
believed that it was not “required to make a finding on whether there was a sexual
assault,” “nor will I make the legal conclusion,” but that the court had “considered
[what] I believe to be relevant [among] all the underlying facts.” When
considered in context with other comments made by the court, we interpret the
court’s observations as follows. In addressing the motion to dismiss, the court was
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not obligated to make a specific finding as to whether Krueger had sexually
assaulted Wharton, but the court had taken into account all of Wharton’s relevant
allegations, including those of sexual assault. The court proceeded to explain that,
regardless of whether Krueger had sexually assaulted Wharton, in some respects
Wharton “exemplif[ies] a classic case of a victim of domestic abuse.” The court
further said, “So I want to make very clear, nothing I say or do here should give
you the suggestion that I disagree or that I don’t understand your outlook. I do
understand your outlook.” The court further said to Wharton,
it does not seem to be in your best interest [for you] to have
any contact with Mr. Krueger. I do believe that you’ve
satisfied me that it’s more likely than not that your
relationship with him was one in which [there] was
relentless pressure to do the things that he wanted you to
do.
Thus, having clarified that it did not need to make a finding on the sexual assault
topic in order to resolve the motion to dismiss, the court essentially found that
Wharton’s testimony was truthful from her point of view and that Krueger had at
times applied “relentless pressure” on Wharton, although the court did not make a
finding of sexual assault through unconsented sexual intercourse.
¶34 On a related topic, at one point during the hearing, the circuit court
explicitly recognized that, if it denied the motion to dismiss (as it proceeded to
do), then in addressing the subsequent, separate issue of custody, the court would
be presented with the following consideration: whether Wharton, as an alleged
victim of domestic abuse, might have “the benefits of the … rebuttable
presumption of sole custody.” This was an unmistakable reference to the
rebuttable presumption in WIS. STAT. § 767.41(2)(d)1. Specifically, under
§ 767.41(2)(d)1., joint custody is rebuttably presumed to be “detrimental to the
child and contrary to the best interest of the child” if one party has committed acts
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of domestic abuse as defined in WIS. STAT. § 813.12(1)(am), which includes first
and third degree sexual assault. See supra note 2. In sum, and significant to our
discussion on a related topic below, the court explicitly recognized that, in denying
the motion to dismiss, the court created the necessity that it would eventually have
to determine in this case whether the rebuttable presumption applied when it
addressed the custody issue.
¶35 Having made these points, the court said that the ultimate issue
before it was not “about what’s in Ms. Wharton’s best interest,” but instead
“what’s in [M.K.W.’s] best interest.”
¶36 The court noted that Wharton had testified that she did not think that
Krueger should be in M.K.W.’s life due to what she contended were Krueger’s
histories of alcohol abuse, underemployment, “not respecting [Wharton’s]
boundaries,” mental health issues, and smoking. However, the court suggested,
these issues could potentially be addressed by Krueger and adequately managed
by him. Further, the court noted, the court itself could, through orders issued later
in the proceedings, help increase the odds that Krueger would address these issues.
That is, the court could address each of these concerns during later phases of the
case as they might specifically relate to the best interest of M.K.W. For example,
Krueger could be ordered to undertake a drug and alcohol assessment as a
condition of custody and placement, and if a problem were revealed he would
have to follow treatment recommendations.
¶37 The court said in part, “I can’t say that a man with an alleged alcohol
problem or depression or [who] smoke[s] cigarettes or [is] even a narcissist, just in
the abstract, it[’]s never in the best interest of a child to have contact with that
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person.” As part of this discussion, the court noted that “every day in family
court” conditions are placed on parents to advance the best interest of children.
[W]hat is in [M.K.W.’s] best interest? Not to have a parent
with an alcohol problem.
It’s in [M.K.W.’s] best interest to have parents who
are successfully employed so they can both provide for
financial support.
It’s in [M.K.W.’s] best interest, as [for] any child, to
be raised by parents who are seeking treatment for anxiety
or depression.
It’s never in children’s best interest to be around …
parents who smoke anything, tobacco or marijuana.
¶38 Addressing in particular Wharton’s concern about Krueger “not
respecting [Wharton’s] boundaries,” the court said that this concern was
premature. This was so, the court explained, because if the court were to deny the
motion to dismiss and then, in addressing custody, if it were to determine that
Krueger “didn’t have boundaries,” the court could award sole custody to Wharton,
in order to “relieve” her “of having the obligation to seek permission” on various
issues from Krueger. The court emphasized that it could ultimately award
Wharton “sole custody and primary placement without any visitation,” or instead
award “joint custody with equal placement,” depending on all of the information
before the court at later stages of the proceedings.
¶39 The circuit court made findings that Wharton and Krueger have a
“self-destructive relationship” and “can’t co-parent.” For these reasons, the court
said, it would be in M.K.W.’s best interest to proceed to adjudication of paternity
and then for Krueger, with direction contained in potential court orders, to take
steps to “moderate the abusive behavior, and to limit the exposure that creates a
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cycle of abuse, and that can be done by the family court after the family court gets
information as the [case] progresses through the system.”
¶40 The circuit court also determined that it is in M.K.W.’s “best interest
to know who his biological father is. He’s going to ask [who his father is]
some[]day.” Further, the court said, “what might be in [M.K.W.’s] best interest is
requiring his father to provide financial support.” If adjudicated the father,
Krueger would have “an obligation to provide financial support for his child
independent of custody and placement decisions, which come next,” and “an
obligation, where appropriate, to provide emotional support for his child.”
B. Analysis
¶41 Wharton purports to identify three sets of loosely related assertions
that she submits are grounds for reversing the circuit court decision denying her
motion to dismiss the action and not adjudicate fatherhood.4 None of the three is
well developed. She argues that: (1) the court “failed to consider that Krueger
had no existing right to parent M.K.W.”; (2) the court failed to recognize
“Wharton’s interest in maintaining the sanctity of her family, where the evidence
would have supported findings that Krueger sexually assaulted and harassed
Wharton”; and (3) the court interpreted the “best interest” in WIS. STAT. § 767.855
“so narrowly as to render irrelevant the evidence” that M.K.W. was “thriving”
under Wharton’s care, that Krueger sexually assaulted and harassed Wharton, that
4
To clarify, Wharton did not dispute in the circuit court, and she does not dispute now,
that if the court properly denied her motion to dismiss this action then the court should enter a
paternity judgment naming Krueger as the father.
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“Krueger abused alcohol, and that Wharton’s health and ability to parent
[M.K.W.] would suffer if she were forced to co-parent with Krueger.”
¶42 In her first set of assertions Wharton contends that the circuit court,
in explaining its decision, was obligated to explicitly state “at the outset of its
analysis” that it was taking into account the fact that Krueger had no history of
interactions with M.K.W. She purports to base this on the legal principle that, as
our supreme court has explained, “parental status that rises to the level of a
constitutionally protected liberty interest does not rest solely on biological factors,
but rather, is depend[e]nt upon an actual relationship with the child where the
parent assumes responsibility for the child’s emotional and financial needs.” See
Randy A.J. v. Norma I.J., 2004 WI 41, ¶16, 270 Wis. 2d 384, 677 N.W.2d 630.
¶43 The following are sufficient reasons to reject any potentially
developed aspects of these assertions. First, the issue before the circuit court was
not whether Krueger had or lacked a constitutionally protected fundamental liberty
interest in his parentage—or, if that should have been part of the analysis,
Wharton fails to explain why that is the case. As the circuit court appropriately
emphasized at the hearing, the specific issue was whether entering an adjudication
that Krueger is M.K.W.’s legal father would, in itself, not be in M.K.W.’s best
interest. See WIS. STAT. § 767.855. Second, the record is replete with evidence
that the circuit court was acutely aware of the lack of contact that had occurred
between Krueger and M.K.W. (it is referred to in numerous filings and discussions
in court). The circuit court was further aware of the undisputed fact that Wharton
had, to date, actively prevented any contact between Krueger and M.K.W., a fact
that Wharton makes no attempt to address in connection with this argument.
Wharton specifically testified that she never allowed Krueger to meet M.K.W. and
that she did not want Krueger to be a part of M.K.W.’s life.
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¶44 Wharton’s second set of assertions is especially difficult to track, but
we reject it at a minimum because it depends on an unsupported premise. The
unsupported premise is that the circuit court was obligated to determine that a
paternity adjudication would “disrupt the existing, positive relationships and
family structure in [M.K.W.’s] life.” As summarized above, the court explained
why it determined that Krueger could be expected to address and manage pertinent
issues that Wharton raised and also that the court would have ample opportunity,
when it made subsequent decisions in the case, to address all of the specific
potential disruptions to M.K.W.’s life and relationships that Wharton sought to
avoid. Wharton fails to address the court’s explanation for its ruling on its own
terms, showing why it is erroneous.
¶45 As part of the second set of assertions, Wharton may intend to argue
that it was error for the circuit court, in addressing the motion to dismiss, not to
state an explicit finding as to whether Krueger had sexually assaulted Wharton. If
she intends to make this argument, we reject it as undeveloped and insufficiently
tied to the focus of WIS. STAT. § 767.855, which turns entirely on the best interest
of the child. We also note that the circuit court made clear that in reaching its
decision it took into account all of Wharton’s testimony, including her specific
testimony, credited by the court, that Krueger had subjected her to “relentless
pressure to do the things that he wanted [her] to do,” albeit without finding that
this included sexual assault.
¶46 In Wharton’s third set of loosely related assertions she essentially
argues that the circuit court erred because it purported to base its decision denying
her motion to dismiss on its ability, at the time of future custody and placement
decisions, to address the issues she raised as primary objections to an adjudication
of fatherhood. She contends this was error because this approach rested on an
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overly narrow interpretation of WIS. STAT. § 767.855. The “too narrow” aspect of
the ruling, she contends, is that the court failed to consider “all factors” bearing on
M.K.W.’s best interests, because it considered some factors to be resolvable only
at later stages of the proceedings. See W.W.W. v. M.C.S., 161 Wis. 2d 1015,
1037, 468 N.W.2d 719 (1991) (“A determination of what is in the best interests of
the children must be made considering all factors which weigh upon the children’s
interests.”). Under the standard that the circuit court applied, Wharton contends,
courts would be obligated to reject virtually all arguments that a paternity
adjudication “is not in the best interest of the child” pursuant to WIS. STAT.
§ 767.855.
¶47 Wharton fails to persuade us that the circuit court misapplied WIS.
STAT. § 767.855 by failing to consider all relevant facts related to M.K.W.’s best
interest at the time of the adjudication decision. The court made a case-specific,
supported determination that all of the evidence showed that it would be in
M.K.W.’s best interest for there to be an adjudication of fatherhood, even if some
of that evidence tended to weigh against such an adjudication, and would have to
be explored further in determining custody and placement. This included
determining that Krueger could be expected to manage and minimize the issues
that were of concern to Wharton. Wharton fails to recognize that, in referring to
later decisions the court would have to make, the court was reasonably providing
broader context for its ultimate ruling regarding adjudication. That is, in the
course of explaining the ultimate conclusion regarding adjudication, the court
noted that an adjudication—in combination with later court decisions about
custody, physical placement, and support—would together result in the best
overall outcomes for M.K.W. That was not impermissibly narrowing the analysis.
The court was simply recognizing the results of all rulings that the court would be
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obligated to make and how, by their nature, the rulings would relate to M.K.W.’s
best interests in different ways. As part of this reasoning, the court was attempting
to reassure Wharton that adjudication in itself would not necessarily result in
shared custody or sole custody for Krueger or in any particular amount of physical
placement with Krueger. Put differently, Wharton fails to show that the court did
not address all relevant factors based on the evidence before the court at the time
of the challenged ruling, reasonably anticipating steps that the court could take to
address Wharton’s concerns in making later decisions in the case.
III. JOINT CUSTODY
¶48 Wharton argues that the circuit court was obligated to award her sole
custody because it should have made factual findings that “Krueger domestically
abused Wharton,” meaning subjected her to sexual intercourse without her
consent, “and erred when it awarded joint custody based on its finding that there
was a presumption of joint custody.” We reject this argument on two grounds.
First, the only reasonable way to interpret the record is that, in making its custody
ruling, the court determined that it could not find by a preponderance of the
evidence that Krueger had subjected Wharton to domestic abuse through acts of
sexual assault, as she claimed. Second, Wharton fails to establish that in making
this finding the circuit court committed clear error.
¶49 “‘Custody determinations are matters within the trial court’s
discretion and will be sustained on appeal where the court exercises its discretion
on the basis of the law and the facts of record and employs a logical rationale in
arriving at its decision.’” Jocius v. Jocius, 218 Wis. 2d 103, 110-11, 580 N.W.2d
708 (Ct. App. 1998) (quoted source omitted). On this issue, Wharton essentially
challenges the circuit court’s credibility findings. Determinations regarding
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witness credibility are left to the circuit court as the trier of fact. See State v.
Kimbrough, 2001 WI App 138, ¶29, 246 Wis. 2d 648, 630 N.W.2d 752.
A. Additional Background
¶50 The court explained that it would be guided on the custody issue by
the terms of WIS. STAT. § 767.41(2), which is a multi-faceted provision that we
need not quote at length, given the limited arguments presented by the parties.
Significantly for the issue raised on appeal, the court at the outset cited
§ 767.41(2)(am), which provides that the court is generally to presume that joint
legal custody is in the best interest of the child. This is significant because, in
explaining that it would apply the general statutory presumption, the circuit court
clearly signaled that it would not be applying the rebuttable presumption in
§ 767.41(2)(d)1. for which Wharton advocated. As previously noted, the
rebuttable presumption comes into play only if the court “finds by a
preponderance of the evidence that a party has engaged in … domestic abuse, as
defined in [WIS. STAT. §] 813.12(1)(am).” If the court had found that the
rebuttable presumption against joint custody applied it would not have made sense
to cite the general presumption in favor of joint custody.
¶51 Proceeding with our summary, the court noted that the GAL
recommended joint legal custody as being in M.K.W.’s best interest. The court
further said that, in “consider[ing] the statutory factors,” it had benefitted from the
Family Court Services report and recommendation, “which tracks the statutory
criteria.”
¶52 The circuit court said that it was “particularly troubled” that
Wharton was not “particularly interested in fostering a relationship between
[M.K.W.] and Mr. Krueger,” leaving Mr. Krueger alone “to fashion his own
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relationship with his child, frankly not counting on Ms. Wharton contributing
much to that endeavor.”
¶53 The court noted the pending harassment injunction that Wharton had
obtained against Krueger, which the court said could be a potential factor in
determining custody. However, the court further observed that the judge who had
issued the injunction specifically stated in the injunction that “issues of child
custody and placement will be determined by the family court,” raising a
“reasonable inference” that the issuing judge “did not intend that that injunction be
grounds for this Court making decisions on child custody and placement,” but
instead intended “the opposite.”
¶54 The court ordered the parties to use an identified shared parenting
tool for online communication, which the court noted is designed to control the
use of inappropriate language and to protect the a party from “intimidation and
abuse” by the other party.
¶55 The court observed that the “extremely capable and experienced
lawyers” for each side could alert the court if there were “abuses” “by either
party” that might call for “modifications of the order or contempt.”
¶56 The court declined “to order treatment for either parent,” noting that
“both parents have struggled and continue to struggle,” but that “I don’t doubt
both parents’ love … for [M.K.W.] and [appreciation of] the importance of
maintaining sobriety at all times.”
B. Analysis
¶57 We conclude that the circuit court properly exercised its discretion
on the custody issue on the basis of the facts and the law, supplying a logical set of
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rationales. This conclusion is based in part on the more specific conclusion that
the only reasonable interpretation of the record is that the circuit court determined
that there was insufficient evidence to support a finding of the factual predicate for
the rebuttable presumption claimed by Wharton: domestic abuse based on sexual
assault.
¶58 Wharton suggests that the circuit court committed reversible error in
making the joint custody decision because it failed to make factual findings as to
whether Krueger sexually assaulted Wharton. It would have been preferable for
the sake of clarity if the circuit court had explicitly stated that it did not find the
factual predicate for the rebuttable presumption. However, it is evident that, while
the court deemed aspects of Wharton’s testimony to be credible, in reaching its
custody decision the court deemed the factual predicate to be unmet. The
rebuttable presumption was specifically raised with prominence by Wharton
several times over the course of the proceedings—including in writing
immediately in advance of the hearing at which the court made the custody
decision. Further, as noted above, the circuit court acknowledged at an earlier
stage in the proceedings that it was aware that it would have to address the issue of
whether the rebuttable presumption applied.
¶59 To the extent that Wharton attempts to argue that the circuit court
erroneously exercised its discretion in failing to find the factual predicate, the
attempt is based on selective references to the record. We now provide a summary
that includes evidence that could undermine a finding that Krueger sexually
assaulted Wharton.
¶60 Pertinent testimony by Wharton included the following. During the
course of their six-month relationship, she consented to “cuddling, kissing,
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massages,” sending him nude pictures of herself, and “sexting” (exchanging
sexual comments in text messages). She told him that she wanted to refrain from
sexual intercourse until marriage, but after she told him that, he nevertheless had
sexual intercourse with her without her consent and after he coerced her. One
assault occurred in the first month they began dating. After that incident she
started spending most of her time at Krueger’s residence and travelled with him to
Europe. When they were in France she told him that she would have sex with him
if he would get them a hotel room instead of their having to sleep in a car, and he
got a hotel room and they had consensual intercourse. Over the course of their
relationship, Krueger sexually assaulted her a total of “between 10 and 15 times.”
¶61 The record before the circuit court included potentially relevant
statements by Krueger that included the following. During their romantic
relationship, Wharton told Krueger that she did not want to have sex before
marriage, but she was also “extremely sexually aggressive” and inconsistent in her
conduct regarding sexual intercourse. When Wharton told Krueger that she was
pregnant, she indicated that M.K.W. was likely conceived before Wharton and
Krueger took a trip to Europe between December 31, 2017, and January 15, 2018.
Wharton ended the relationship abruptly in February 2018 after becoming annoyed
with him while he was playing the guitar. Krueger denied that he had ever had
sexual intercourse with Wharton without her consent and said that Wharton never
alleged sexual assault until after their relationship ended.
¶62 On this record, the court could have reasonably determined that it
could not find that the factual predicate for the rebuttable presumption against
joint custody was met.
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¶63 This leaves Wharton’s assertion that the circuit court “erred when it
disregarded all of the evidence that Wharton introduced that Krueger had engaged
in abusive behavior,” which apparently rests heavily on the fact that Wharton
obtained a harassment injunction against Krueger in February 2019. However, as
summarized above, the court did not ignore the injunction in making its custody
decision. Instead, the court noted its existence and made an implicit finding that it
did not weigh significantly in the analysis. Wharton fails to develop an argument
that this constituted an erroneous exercise of discretion. Further, Wharton appears
to acknowledge that the existence of the injunction in itself did not trigger the
rebuttable presumption.
IV. FIVE DAYS OF PLACEMENT FOR KRUEGER EVERY
TWO WEEKS
¶64 The final issue does not require extensive discussion, because the
record reflects exhaustive, focused discussion on the physical placement topic by
the circuit court and the parties at the final evidentiary hearing and Wharton does
not develop an argument that the circuit court erroneously exercised its discretion
in making a decision that, it should be noted, awarded her the majority of the
placement time.
¶65 As with circuit court custody decisions, we review physical
placement decisions for an erroneous exercise of discretion. Rosecky v. Schissel,
2013 WI 66, ¶29, 349 Wis. 2d 84, 833 N.W.2d 634.
¶66 Wharton acknowledges that the circuit court properly referenced the
statutory factors as its touchstone. See WIS. STAT. § 767.41(5)(am). However, she
asserts that “nowhere did the court explain how its examination of the evidence
under the mandated factors led to its decision.” In support of this argument,
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Wharton cites to only two of the 14 pages of the transcript specially focused on
placement. Further, she fails to come to grips with the fact that the court adopted
the GAL’s placement recommendations, which itself was based on one of two
schedules proposed by Wharton herself.
¶67 Wharton makes an unclear argument about a statement of the circuit
court that we reject for at least the reason that, as far as Wharton develops the
argument, it depends on the inaccurate premise that the circuit court awarded
equal physical placement.
¶68 Wharton also briefly asserts that the circuit court did not comply
with WIS. STAT. § 767.41(6)(a), which requires that in final orders, “[i]f legal
custody or physical placement is contested, the court shall state in writing why its
findings relating to legal custody or physical placement are in the best interest of
the child.” However, she does not explain how a reasonable interpretation of
§ 767.41(6)(a), including any potential remedy or remedies that might be proper
based on a violation of that statute, should be applied to the circuit court’s actual
rulings in this case. To analyze this issue, we would at a minimum have to
develop these elements of an argument for Wharton.
CONCLUSION
¶69 For all these reasons, we reject each of the arguments that Wharton
advances on appeal and affirm the challenged circuit court rulings.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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