Document Info

DocketNumber: 2022AP002089

Filed Date: 11/16/2023

Status: Non-Precedential

Modified Date: 9/9/2024

  •        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.
    November 16, 2023
    A party may file with the Supreme Court a
    Samuel A. Christensen                  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.        2022AP2089                                                    Cir. Ct. No. 2016FA159
    STATE OF WISCONSIN                                             IN COURT OF APPEALS
    DISTRICT IV
    IN RE THE SUPPORT AND MAINTENANCE OF C.L.B.:
    VICTORIA S. KRZYKOWSKI,
    PETITIONER-APPELLANT,
    V.
    MATTHEW BENTIVEGNA,
    RESPONDENT-RESPONDENT.
    APPEAL from an order of the circuit court for Wood County:
    TODD P. WOLF, Judge. Affirmed.
    Before Kloppenburg, 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. 2022AP2089
    ¶1       PER CURIAM. Victoria Krzykowski appeals an order modifying
    physical placement and child support. The order in question maintained primary
    placement of the child with respondent Matthew Bentivegna, and reduced
    Krzykowski’s placement schedule to visitation at reasonable times and on
    reasonable notice. The order also modified child support accordingly.
    ¶2       Krzykowski argues that, because this modification order was made
    less than two years after the court issued an oral custody and placement order in
    August 2021, a substantial modification of placement was not permitted unless,
    quoting the statute that she relies on, “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) (2021-22)1.
    ¶3       By its own terms, this provision applies only to modifications within
    two years after “the final judgment determining legal custody or physical
    placement is entered under [WIS. STAT. §] 767.41.” Here, it is not clear that the
    August 2021 order was “the final judgment … under [§] 767.41,” or whether the
    final judgment was instead one that the circuit court issued earlier in the case, such
    as the placement order the court entered on September 5, 2017. This point is
    potentially significant; if the two-year period applies only to modification of the
    first order issued under § 767.41 but not to any subsequent modification orders,
    then the two-year period would not apply to the court’s August 2021 order.
    However, on appeal Bentivegna does not dispute that this provision applies here,
    1
    All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
    noted.
    2
    No. 2022AP2089
    and therefore we proceed on the assumption that it does, without deciding that it
    does.
    ¶4     Krzykowski argues that the evidence here was insufficient to show
    that the current custodial conditions were causing harm to the child. We conclude
    that it was sufficient.
    ¶5     The circuit court did not expressly find that the current conditions
    were harming the child, but such a finding is implicit in its analysis. The court
    heard evidence that the child, then fifteen years old, was refusing to go to her
    scheduled visitations with Krzykowski.          The guardian ad litem recommended
    placement be at reasonable times with reasonable notice.
    ¶6     As part of its decision, the court stated:
    And to say the Court should force her to go there
    when some of the placements looked like she locked
    herself in a room and stayed there the whole time, even if I
    would have a forced situation, that’s gonna be the end
    result. She’s gonna go in a room and just sit there and be
    upset with everyone involved, maybe crying her eyes out
    and everything else, not being able to do anything.
    I have in the past … not all that long ago ordered a
    younger child to [go to scheduled visitations] and [the
    child] refused to get out of the car … and I held that child
    in contempt and had the child actually put in secure
    detention for a few days here for not following the court
    order. I’m not going down that road, not with this child at
    this age.
    ….
    And me just indicating to law enforcement or
    someone should [forcibly transport the child to
    Krzykowski’s house] is gonna absolutely accomplish
    nothing. If anything, it’s gonna draw a huger wedge
    between the parties than … already might exist here.
    3
    No. 2022AP2089
    ¶7   We understand this discussion to be a statement by the court that the
    current placement order, if enforced, was emotionally harmful to the child. On
    appeal, Krzykowski does not dispute that the child was refusing to visit her. Nor
    does she offer an explanation of how the current placement conditions could have
    been enforced in a way that would not have been emotionally harmful to the child.
    Accordingly, we are satisfied that a substantial modification of placement within
    two years after the August 2021 order was permitted under WIS. STAT.
    § 767.451(1)(a), because the current conditions were emotionally harmful to the
    child.
    ¶8   Krzykowski also argues that the circuit court erred by not timely
    deciding several motions that she filed seeking enforcement of the visitation order
    and a finding that Bentivegna was in contempt. She argues that such motions
    should have been heard within thirty days of filing, pursuant to WIS. STAT.
    § 767.471(5)(a). As relief, she asks that we order the circuit court to hear these
    motions and to consider awarding additional days of placement to her.
    ¶9   As we read the record, the circuit court decided these motions at the
    same hearing that the change in placement was ordered. The court acknowledged
    the contempt motions, stated that the court had indicated that it would decide those
    once it heard evidence on physical placement, and then the court concluded that
    there had “been absolutely no evidence here today that shows that [Bentivegna]
    has himself been [in] willful and egregious violation of a court order.”          We
    understand this to be a finding that, in the terms used in WIS. STAT.
    § 767.471(5)(b), Krzykowski failed to prove that Bentivegna “intentionally and
    unreasonably denied … or interfered with” her placement. Without a finding in
    her favor on that point, no relief on Krzykowski’s motions was available,
    4
    No. 2022AP2089
    including an order granting additional periods of physical placement to replace
    those denied or interfered with. See § 767.471(5)(b)1.a.
    ¶10    On appeal, Krzykowski does not appear to dispute the conclusion
    that Bentivegna did not improperly deny or interfere with her placement. Instead,
    she argues that she was prejudiced by the circuit court’s delay in deciding her
    motions, and she suggests that the court conditioned a decision on those motions
    on her payment of guardian ad litem fees. However, with the conclusion on the
    motions ultimately not being in Krzykowski’s favor, we are unable to see any
    sense in which this delay itself, regardless of the reason, caused her prejudice.
    CONCLUSION
    ¶11    For the reasons stated, we affirm.
    By the Court.—Order affirmed.
    This    opinion   will   not       be   published.   See   WIS. STAT.
    RULE 809.23(1)(b)5.
    5