Lacey Dawn McGhee v. Ivan J. McGhee, III

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.
May 11, 2023
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. 2022AP365 Cir. Ct. No. 2020FA39
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
LACEY DAWN MCGHEE,
PETITIONER-RESPONDENT,
V.
IVAN J. MCGHEE, III,
RESPONDENT-APPELLANT.
APPEAL from a judgment of the circuit court for Sauk County:
WENDY J.N. KLICKO, Judge. Affirmed.
Before Fitzpatrick, 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. 2022AP365
¶1 PER CURIAM. Ivan McGhee appeals from a judgment of divorce,
challenging the circuit court’s order awarding Lacey McGhee sole custody and
primary physical placement of their three children. Ivan1 argues that the court
erred in awarding sole legal custody to Lacey because there was insufficient
evidence to overcome the presumption under WIS. STAT. § 767.41(2)(am) (2019-
20)2 that joint custody is in the best interest of the children. He also argues that
the court erred in failing to maximize his placement time with the children and in
failing to provide specific findings to justify placement with him of less than
twenty-five percent. We reject each of these arguments and affirm.3
BACKGROUND
¶2 Ivan and Lacey were married in Wisconsin in 2006 and have three
children together. After residing in Florida for several years, the family moved
back to Wisconsin in 2012 and lived in Lacey’s mother’s home in Lodi, along
with other extended family members. In 2018, the family moved to Plain,
Wisconsin. In early 2019, Lacey stopped living in the parties’ home. The parties
dispute what prompted her departure. From the time Lacey stopped living at the
1
Because the parties share the same last name, we refer to them by their first names.
2
Unless otherwise noted, all references to the Wisconsin Statutes are to the 2019-20
version that existed at the time the circuit court issued its order on custody and placement. We
note that the legislature modified WIS. STAT. § 767.41(5)(am) in May 2021, and that the new
version of the statute went into effect December 1, 2021, after the circuit court’s July 12, 2021
custody and placement order. See 2021 Wis. Act 37, §§ 2-4, 7-8. Although the final judgment of
divorce incorporating the July 12, 2021 order was not entered until February 18, 2022, the record
does not reflect that Ivan brought this statutory change to the circuit court’s attention or requested
that the court revisit its order in light of this statutory change. On appeal, Ivan applies the factors
in § 767.41(5)(am) as they existed at the time of the July 12, 2021 order and we follow his lead.
3
Lacey did not file a response brief in this matter. We considered whether summary
reversal was warranted as a result of the failure to file a brief and concluded at conference that it
was not.
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parties’ home until the children began residing with Lacey approximately thirteen
months later, Ivan was the primary caretaker of the children.
¶3 Lacey filed for divorce in early 2020. Shortly after doing so, Lacey
sought a temporary restraining order against Ivan on behalf of the children. As is
typical in such proceedings under WIS. STAT. § 813.122, a temporary restraining
order was granted in March 2020 without an evidentiary hearing. The temporary
restraining order allowed Ivan supervised placement with the children every other
Saturday from 8:00 a.m. to 6:00 p.m. Upon the advice of counsel, Ivan agreed to
the temporary restraining order remaining in effect while the family court matter
was pending.
¶4 At some point after filing for divorce, Lacey moved to Stoughton,
Wisconsin. The children resided with her and attended school in Stoughton
through the remainder of the divorce proceedings.
¶5 The circuit court held a hearing on the contested custody and
physical placement issues, at which Lacey, Ivan, and several other witnesses
testified regarding the parties’ interaction and relationship with the children and
with each other. Each party introduced testimony that the other party had engaged
in acts of interspousal abuse, and Lacey also introduced testimony that Ivan had
engaged in abuse of the children. A court-appointed guardian ad litem (GAL) also
participated in the hearing.
¶6 Lacey testified that the children are doing well in the Stoughton
school system and have made friends. She also testified that she does not believe
that she and Ivan are able to cooperate and communicate with one another with
respect to the children. She testified that whenever she “message[s] him in regards
to the kids, it always turns into something else. It turns into [Ivan] calling [her]
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names.” Lacey introduced into evidence text messages between her and Ivan, in
which they discussed the divorce proceedings as related to the children. In these
messages, Ivan called Lacey derogatory names, and made threats as to what would
occur in the court proceedings. Lacey also testified that Ivan’s messages would
switch from saying he was “done with the kids” and “moving back to Florida” to
saying that he would “fight for the kids.” She testified, “So there is no
communication that is possible … with him in regards to the kids.” Ivan did not
present any contrary evidence on these topics.
¶7 Following the hearing, the parties submitted written arguments.
Lacey requested sole legal custody and primary placement of the children, with
Ivan continuing to have the placement set forth in the restraining order, i.e.,
supervised visitation every other Saturday. Ivan requested, at a minimum, joint
legal custody or, in the alternative, sole legal custody to him. As to placement,
Ivan’s written and oral requests differed. In his written arguments, Ivan requested
primary and unsupervised placement. However, at the evidentiary hearing, he
requested “substantial” unsupervised placement “in the range of 36 to 50 percent,”
with placement for a majority of the summer, and approximately three out of four
weekends during the school year. This latter position on placement is the position
he takes on appeal.
¶8 The GAL also submitted a written report that discussed all of the
factors relevant to custody and placement set forth in WIS. STAT. § 767.41(5)(am).
The GAL recommended that Lacey receive sole legal custody. The GAL based
this recommendation on the text messages between the parties, coupled with
Lacey’s testimony, which, according to the GAL, “establishes that Ivan cannot or
will not effectively communicate with [Lacey] regarding the children.” The GAL
further stated that “[i]t’s difficult to imagine that the parties’ cooperation and
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communication … could be any worse, considering the text messages,” and that
“[n]o testimony or evidence was offered to rebut that impression.” As to
placement, the GAL recommended that Lacey have primary placement and that
Ivan have unsupervised placement every other weekend, from Friday evening
through Sunday evening, and that they divide their major holidays equally,
alternating years. The GAL recommended that Ivan have access to the children’s
school, medical, counseling and dental records, and the authority to discuss the
children’s educational needs with school staff and participate in their education.
¶9 The circuit court issued an oral ruling on June 24, 2021, and a
written order on July 12, 2021, that followed the GAL’s recommendations. In
making its determination on custody and physical placement, the court took into
consideration the factors set forth in WIS. STAT. § 767.41(5)(am).
¶10 The circuit court awarded sole legal custody to Lacey, concluding
that joint legal custody would not be appropriate due to the “manner in which
[Ivan] has communicated with Lacey.” The court stated, in reference to Ivan’s
communication with Lacey, that “no one should be subjected to that type of
language or behavior” and that “[i]t is not apparent … that [Lacey] returned that
type of behavior.” The court determined that “under the current circumstances,
the children are receiving the most stability and predictability in regard to legal
decisions and custodial decisions being made for them by [Lacey].”
¶11 The circuit court also awarded Lacey primary placement of the
children. The court awarded Ivan unsupervised placement every other weekend
throughout the year, including the summer months, and divided the major holidays
as recommended by the GAL, with additional placement with Lacey every
Mother’s Day and placement with Ivan every Father’s Day.
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No. 2022AP365
¶12 On February 18, 2022, the circuit court entered the final judgment of
divorce, which incorporates the custody and placement order. Additional material
facts are included below.
DISCUSSION
I. Standard of Review for Custody and Physical
Placement Determinations
¶13 “Custody determinations are matters within the [circuit] court’s
discretion.” Koeller v. Koeller, 195 Wis. 2d 660, 663-64, 536 N.W.2d 216 (Ct.
App. 1995). Similarly, a circuit court “has ‘wide discretion in making physical
placement decisions.’” Goberville v. Goberville, 2005 WI App 58, ¶6, 280
Wis. 2d 405, 694 N.W.2d 503 (quoted source omitted). “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 that a reasonable judge could reach.” Id., ¶7.
II. Legal Custody
¶14 Ivan argues that the circuit court erred in granting sole legal custody
to Lacey because the evidence was insufficient to overcome the presumption that
joint legal custody is in the best interest of the children. Specifically, he argues
that the evidence is insufficient to support the court’s conclusion that the parties
could not cooperate with respect to the children. He also contends that the court
improperly relied on a single factor to assess the best interest of the children. For
the reasons set forth below, we reject these arguments.
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No. 2022AP365
A. Inability to Cooperate
¶15 Under Wisconsin law, there is a presumption that “joint legal
custody is in the best interest of the child,” subject to exceptions not applicable
here.4 WIS. STAT. § 767.41(2)(am). Pertinent in this case, the circuit court may
grant a party joint or sole legal custody of a child “based on the best interest of the
child and after considering the factors under [§ 767.41](5)(am).”
Sec. 767.41(2)(a); see also § 767.41(5)(am) (stating that “in determining legal
custody and periods of physical placement, the court shall consider all facts
relevant to the best interest of the child,” and listing factors to be considered in
making that determination). When, as here, one of the parties requests sole legal
custody and the other party opposes that request, the court may grant sole legal
custody only if it finds that doing so is in the child’s best interest, and if the court
specifically finds any of the following: (1) “[o]ne party is not capable of
performing parental duties and responsibilities or does not wish to have an active
role in raising the child”; (2) “[o]ne or more conditions exist at that time that
would substantially interfere with the exercise of joint legal custody”; or (3) “[t]he
parties will not be able to cooperate in the future decision making required under
an award of joint legal custody.” Sec. 767.41(2)(b)2.
¶16 In concluding that sole legal custody should be awarded to Lacey,
the circuit court relied on the third ground in WIS. STAT. § 767.41(2)(b)2., Ivan’s
inability to cooperate in future decision making. This factor is also included in the
list of factors a court must consider in making legal custody and placement
4
These exceptions involve incidents of domestic abuse. See WIS. STAT.
§ 767.41(2)(am). As discussed later in this opinion, the circuit court did not find domestic abuse.
7
No. 2022AP365
determinations under § 767.41(5)(am). See § 767.41(5)(am)10. (court must
consider “the cooperation and communication between the parties and whether
either party unreasonably refuses to cooperate or communicate with the other
party”). As the court summarized, “The reason for sole custody here is not in
regards to [Ivan’s] treatment of the children but his inability to discuss matters
with [Lacey].”
¶17 The circuit court’s determination is supported by Lacey’s testimony
and the content of Ivan’s messages to Lacey. Lacey testified that whenever she
messaged Ivan in regard to the children, “it always turns into something else. It
turns into [Ivan] calling [her] names.” In the messages introduced into evidence,
Ivan called Lacey a “selfish cold hearted bitch” and told her, “Fuck off cow I
fucking hate you and I will never fucking forgive you” and that he was glad the
relationship was over because he “won[’]t have to deal with having sex with a
smelly nasty girl anymore.” He also made threats with respect to the court
proceedings, saying that “this means war,” that the courts would take the children
from her, that she “will look stupid in court,” and that she would “[e]nd up in jail.”
Moreover, Lacey testified that Ivan would switch from saying that he was “done
with the kids” and “moving back to Florida” to saying he would “fight for the
kids,” further making “no communication … possible” with respect to the
children.
¶18 Ivan argues that the evidence presented is insufficient proof that the
two parents could not cooperate for the benefit of the children. Specifically, he
argues that the text messages were not related to the children and are not sufficient
to overcome the statutory presumption of joint custody. We disagree.
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No. 2022AP365
¶19 Contrary to Ivan’s assertion and as demonstrated above, Ivan’s texts
are clearly related to the children. Moreover, Ivan has failed to present any viable
argument that the circuit court erred in determining that this evidence
demonstrates an inability to cooperate in future decision making regarding the
children. As Ivan acknowledges, the parties’ inability to cooperate is a proper
basis for overcoming the presumption of joint custody and awarding sole custody
under WIS. STAT. § 767.41(2)(b)2.
B. The Children’s Best Interest as to Custody
¶20 As noted, legal custody determinations must be made “based on the
best interest of the child and after considering the factors under [WIS. STAT.
§ 767.41](5)(am).” Sec. 767.41(2)(a). Ivan argues that the circuit court
“improperly used a single factor to gauge the best interest of the children,
effectively changing the analysis into a question of which parent was the most
recent caretaker of the children.” The factor at issue is § 767.41(5)(am)8., which
requires the court to consider “[t]he need for regularly occurring and meaningful
periods of physical placement to provide predictability and stability for the child.”5
We construe Ivan’s argument to consist of two subparts: first, an assertion that the
court relied on a single factor; and, second, that the court misapplied that factor.
For the reasons set forth below, these arguments fail.
5
As a result of the modifications to WIS. STAT. § 767.41 discussed in supra note 2, this
factor is no longer one of the factors delineated in § 767.41(5)(am), although it was a factor at the
time the circuit court made its custody and placement determinations. As stated in note 2, the
record does not reflect that Ivan brought these statutory changes to the court’s attention, nor did
he argue that the modified version of the statute should apply. Ivan likewise does not argue on
appeal that the circuit court erred in applying this factor.
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No. 2022AP365
1. Single Factor
¶21 Under WIS. STAT. § 767.41(2)(a), a custody award must be based on
the best interest of the child after consideration of the factors set forth in
§ 767.41(5)(am). Ivan acknowledges that the circuit court “went through the
factors set forth in … § 767.41(5)(am).” Nevertheless, he asserts that the circuit
court “improperly used a single factor” under § 767.41(5)(am) to determine the
best interests of the children, namely, the eighth factor: “[t]he need for regularly
occurring and meaningful periods of physical placement to provide predictability
and stability for the child.” See § 767.41(5)(am)8.
¶22 Given his acknowledgment that the circuit court considered the
factors in WIS. STAT. § 767.41(5)(am), the basis for Ivan’s assertion that the court
relied solely on the eighth factor is unclear. Ivan’s assertion appears to be based
on the court’s statement that this factor was “the fundamental factor for the court
in this case.” However, Ivan provides no authority for the proposition that when,
as here, the record shows that the court considered the other statutory factors, a
court is not permitted to place more weight on one factor than others. Indeed, in
discussing placement issues, Ivan acknowledges that “the factors listed in …
§ 767.41(5)(am) have different weights for every situation.”
¶23 To the extent that Ivan means to suggest that the circuit court did not
actually consider other factors, this argument fails because, as set forth below, the
record plainly shows that the court considered all of the relevant factors under
WIS. STAT. § 767.41(5)(am) in reaching its determinations on custody and
placement based on the children’s best interest.
¶24 The circuit court began with the first factor, “[t]he wishes of the
[children’s] parent or parents,” see WIS. STAT. § 767.41(5)(am)1. The court
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No. 2022AP365
discussed the following. Ivan requested joint custody or, if the court determined
there should be sole custody, sole custody to him. As to placement, Ivan
requested “unsupervised placement three of four weekends and holiday placement
on an odd/even rotation.”6 Lacey requested “sole custody and primary placement
of the children.” She also asked that Ivan’s placement “be supervised, every other
Saturday from 8:00 a.m. to 6:00 p.m.”
¶25 As to the wishes of the children, under WIS. STAT.
§ 767.41(5)(am)2., the circuit court conveyed the information obtained from the
GAL as follows. The first time the GAL spoke with the children, the children
requested to live with their mother and see their father every other Saturday from
8:00 a.m. to 6:00 p.m. During a second interview with the two younger children,
they repeated that request. The placement identified by the children is the
placement that had been provided as a result of the temporary restraining order.
¶26 The circuit court also considered “[t]he interaction and
interrelationship of the [children] with [their] … parents, siblings, and any other
person who may significantly affect the [children’s] best interest.” See WIS. STAT.
§ 767.41(5)(am)3. The court found:
During the course of the marriage[,] the children and the
parties experienced many different living arrangements and
there was a lot that happened in the years leading up to the
6
The circuit court did not specifically mention Ivan’s request for more placement than
Lacey during the summer. However, in discussing this factor during its oral decision, the court
stated that it would not repeat the parties’ positions, which the court stated were set forth at the
evidentiary hearing and in the parties’ briefs. At the evidentiary hearing, Ivan asked to
“maximize” placement in the summer. In his reply brief, he requested placement for the
“majority” of summer if primary placement was given to Lacey during the school year. As
previously mentioned, the court awarded him placement every other weekend throughout the
year.
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No. 2022AP365
divorce both between the parents, between the parents and
the children, and those they were living with. The time
period where the family lived together intact was chaotic
and certainly there were toxic relationships with Ivan,
Lacey, and extended family members.
¶27 Next, the circuit court considered “[t]he amount and quality of time
that each parent has spent with the [children] in the past, any necessary changes to
the parents’ custodial roles and any reasonable life-style changes that a parent
proposes to make to be able to spend time with the [children] in the future.” See
WIS. STAT. § 767.41(5)(am)4. The court found:
Each parent has had times where they have been the
primary caretaker for the children. Most recently, the
children have been with Lacey. That is where they have
been attending school for the past year and that has been
the stability and predictability for them. There was a
period of time however when Ivan had that role and Lacey
was absent.
¶28 In considering “[t]he [children’s] adjustment to the home, school,
religion and community,” see WIS. STAT. § 767.41(5)(am)5., the circuit court
found: “The kids seem to do well when they are with either parent. Things don’t
go well when everyone is together under the same roof.” The court further found
that the children “seem to be doing well in school.”
¶29 The circuit court also considered “[t]he age of the [children] and the
[children’s] developmental and educational needs at different ages.” See WIS.
STAT. § 767.41(5)(am)6. The court did not specifically mention the children’s
ages. However, the GAL’s report, which the court stated it had reviewed and used
as a guide, states that the children’s ages are nine, ten, and eleven. The court
found that “[t]here does not appear to be any particular special needs in regard to
the children’s development and educational needs other than the court looking for
stability and predictability for the children.”
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¶30 The circuit court next addressed “[w]hether the mental or physical
health of a party, minor child, or other person living in a proposed custodial
household negatively affects the [children’s] intellectual, physical or emotional
well-being.” See WIS. STAT. § 767.41(5)(am)7. The court found that there was no
specific testimony in regard to “any diagnosed mental or physical health of parents
or persons that would negatively affect the children’s well-being.”
¶31 The circuit court also discussed the eighth factor, “[t]he need for
regularly occurring and meaningful periods of physical placement to provide
predictability and stability for the [children],” see WIS. STAT. § 767.41(5)(am)8.,
which Ivan argues was the single factor on which the court relied. The court
stated that “[t]his is the fundamental factor for the court in this case.” Relevant to
this factor, the court found that, during the course of the marriage, the children had
“experienced many living arrangements.” The court further found that “stability
and predictability is what these children need. They lived in quite chaotic and
toxic environments while the parents lived together.” The court found that
awarding sole legal custody to Lacey would “provide the most stability and
predictability for [the] children” with respect to “having appropriate legal [and]
custodial decisions being made for them.”
¶32 In discussing “[t]he cooperation and communication between the
parties,” see WIS. STAT. § 767.41(5)(am)10., the circuit court stated that it agreed
with the GAL that the manner in which Ivan communicated with Lacey showed
that joint legal custody would not be appropriate under the circumstances. The
court further found that “no one should be subjected to that type of language or
behavior,” that “[i]t is not apparent … that [Lacey] returned that type of behavior,”
and that Ivan demonstrated an “inability to discuss matters with [Lacey].”
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¶33 The circuit court discussed at some length whether Ivan engaged in
abuse of the children. See WIS. STAT. § 767.41(5)(am)12.7 The court stated that,
although it did not find that any witnesses had purposely fabricated information,
some of the testimony regarding Ivan’s alleged abuse of the children is “less
reliable or potentially suspect when it is rote, meaning the exact same phrase is
used by more than one witness and it is repeated,” giving the court “some pause as
to the validity of those statements.” This finding echoed the GAL’s statement that
“Lacey, her mother and sister all testified nearly verbatim, that Ivan would hit the
children ‘…when they didn’t move fast enough or didn’t do something the way he
wanted.’” (Alteration in original.) But the court also stated, “That doesn’t mean it
couldn’t have happened. However, it is not very specific, and it does give the
court some question to whether or not the court can find that it did in fact occur.
But the issue is out there.”
¶34 The circuit court also found that there were no allegations of child
abuse during the time Ivan had the children alone for thirteen months, that “[s]uch
issues surfaced only when the family lived together,” and that “[t]here was not a
criminal record of anyone engaging in abuse or neglect—just the restraining
order.” As to the restraining order, the court agreed with the GAL that it was not
“very instructive or informative.” The court based this conclusion on the fact that
“no testimony was taken” in the injunction proceedings and that instead, “[t]here
was the stipulation to a temporary restraining order, which is not the same … as
stipulating that there were grounds to enter an injunction.” The court added,
“Nevertheless, the issue does present itself.”
7
There were no allegations that Lacey abused the children.
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¶35 The circuit court also discussed the pertinent aspects of WIS. STAT.
§ 767.41(5)(am)12m., specifically, whether “[a] person who resides, has resided,
or will reside regularly or intermittently in a proposed custodial household” has a
criminal record or has engaged in child abuse or neglect. See
§ 767.41(5)(am)12m.b. In addition to the injunction and other allegations of child
abuse discussed above, the court found that “[t]here was some history for Ivan in
regards to disorderly conduct” but that there was “no criminal complaint or
judgment of conviction that was offered” at the hearing.
¶36 The circuit court additionally considered “[w]hether there is
evidence of interspousal battery … or domestic abuse.” See WIS. STAT.
§ 767.41(5)(am)13. The court found that there was testimony presented by Lacey
that Ivan engaged in interspousal battery against her, which Ivan denies, and that
“there was also testimony from a witness [who] observed Lacey hit Ivan over the
head with an object,” with “no rebuttal to that testimony.” The court found that
Lacey had not proved that interspousal battery had occurred, so as to change the
rebuttable presumption of joint legal custody. See WIS. STAT. § 767.41(2)(d).
¶37 The circuit court addressed “[w]hether either party has or had a
significant problem with alcohol or drug abuse,” see WIS. STAT.
§ 767.41(5)(am)14., finding that “there was some testimony that Ivan smokes
marijuana, but there was nothing more substantial than that.”
¶38 The circuit court did not specifically discuss three of the statutory
factors in its ruling: “[t]he availability of public or private child care services”;
“[w]hether each party can support the other party’s relationship with the
[children]”; and “[t]he reports of appropriate professionals if admitted into
evidence.” See WIS. STAT. § 767.41(5)(am)9., 11., 15. However, the court stated
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No. 2022AP365
at the beginning of its oral ruling that it was using the GAL’s written report as a
guide in addressing and considering the necessary factors in order to make its
determination on custody and placement. In his report, the GAL went through all
of the factors, including these three. The GAL noted that the parties had help from
extended family to assist with the children, there was no testimony that either of
the parents unreasonably interfered with the children’s relationship with the other
parent, and there were no reports from professionals offered or admitted into
evidence. Thus, the court took into consideration all the factors under
§ 767.41(5)(am) to make its decision on legal custody.
¶39 In sum, the record does not support Ivan’s argument that the circuit
court relied only on a single factor, stability and predictability, in awarding sole
legal custody to Lacey. Instead, following an evidentiary hearing at which the
court heard the parents’ testimony and the testimony of numerous other witnesses,
the court considered all of the factors in WIS. STAT. § 767.41(5)(am). The court
further determined that predictability and stability were paramount to the
children’s best interest. Ivan presents no authority or cogent argument that would
allow this court to second-guess the court’s determinations on this point. See State
v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we need not
address undeveloped arguments and arguments unsupported by authority).
2. Misapplication of WIS. STAT. § 767.41(5)(am)8.
¶40 Ivan argues that the circuit court “rephras[ed]” WIS. STAT.
§ 767.41(5)(am)8., and applied “its own stability and predictability standard.”
These assertions are unsupported. As it did with other factors pertinent to the
children’s best interest listed in § 767.41(5)(am), the court, in analyzing this
factor, recited the statutory language verbatim and made findings with respect to
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No. 2022AP365
that factor: “(8) The need for regularly occurring and meaningful periods of
physical placement to provide predictability and stability for the child. This is the
fundamental factor for the court in this case.” See § 767.41(5)(am)8. As noted
above, the court explained its reasons for emphasizing this factor and made
findings related to that factor. Thus, the basis for Ivan’s assertion that the court
misapplied the statutory language is unclear.
¶41 Ivan states, “The natural reading of this factor suggests that the
primary focus is for the court to provide meaningful and regularly occurring
periods of physical placement. Then, as a result, that schedule will provide
predictability and stability for the child.” Again, Ivan has not shown that the
circuit court misapplied this factor. First, as stated, the record makes clear that the
court understood and applied the correct standard. In addition to the court reciting
the exact statutory language of this factor, the court also made clear it had
reviewed the GAL’s report, which, in recommending that the court reject Lacey’s
placement request and instead order placement every other weekend with Ivan,
states: “Placement for a parent on every other Saturday from 8:00 a.m. until 6:00
p.m.[,] as requested by Lacey, may be regularly occurring but it is not meaningful
placement. It is in the best interest of the children that they be able to engage in
the activities with their father as they did in the past.” Thus, the court was aware
of the statutory requirement of “regularly occurring and meaningful” placement
and was also aware of the GAL’s view that placement every other weekend with
Ivan (which the court ordered) was meaningful. The record therefore does not
support Ivan’s assertion that the court misapplied WIS. STAT. § 767.41(5)(am)8.
¶42 Second, this court has previously rejected the argument that Ivan
appears to be advancing here. In Helling v. Lambert, 2004 WI App 93, ¶10, 272
Wis. 2d 796, 681 N.W.2d 552, this court noted that the circuit court “focused on
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No. 2022AP365
the factor enumerated in WIS. STAT. § 767.[41(5)(am)8.], the ‘need for regularly
occurring and meaningful periods of physical placement to provide predictability
and stability for the child.’” Lambert, 272 Wis. 2d 796, ¶10 (statutory provision
altered to reflect numbering in effect at the time of the custody and placement
order in this case). The appellant in Lambert argued that the circuit court “erred in
interpreting this provision as a general requirement for predictability and stability
in the child’s life, rather than a preference for regularly occurring periods of
physical placement.” Id. We rejected this argument, concluding, “Even if we
were to read that factor as [the appellant] urges, however, we are persuaded that
predictability and stability would still be permissible factors for a court to consider
as relevant to the child’s best interest under the catchall provision” in
§ 767.41(5)(am)16. Id.
¶43 The “catchall provision” referred to in Lambert allows a court to
consider “[s]uch other factors as the court may in each individual case determine
to be relevant.” See id., ¶¶8, 10; see also, WIS. STAT. § 767.41(5)(am)16. Thus,
consistent with Lambert, even if the circuit court in this case placed more
emphasis on “predictability and stability” than on “regularly occurring and
meaningful placement” with Ivan, Ivan has not shown that this would amount to
an erroneous exercise of discretion, given the court’s latitude to consider
predictability and stability under the catch-all provision.
¶44 In sum, we conclude that, in awarding sole legal custody to Lacey,
the circuit court considered the facts of record, applied the correct legal standard,
and used a logical rationale to reach its conclusion. Accordingly, Ivan has not
shown that the court erroneously exercised its discretion. See Koeller, 195
Wis. 2d at 663-64.
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No. 2022AP365
III. Physical Placement
¶45 As stated, the circuit court awarded primary placement of the
children to Lacey and placement to Ivan every other weekend throughout the year,
with major holidays divided equally. Ivan challenges the court’s exercise of
discretion regarding placement on two grounds. First, he argues that the court
failed to maximize his placement time as required under WIS. STAT.
§ 767.41(4)(a)2. Second, he contends that the placement awarded to him amounts
to twelve-and-one-half percent placement time8 and that, because this is less than
twenty-five percent, the court was required to make a specific finding under the
current version of WIS. STAT. § 767.41(6) (2021-22). We discuss and reject these
arguments, in turn.
A. Maximizing Placement
¶46 Ivan argues that the circuit court failed to maximize the children’s
placement as required by WIS. STAT. § 767.41(4)(a)2. Section 767.41(4)(a)2.
provides the method by which courts are required to allocate physical placement:
In determining the allocation of periods of physical
placement, the court shall consider each case on the basis
of the factors in sub. (5)(am) …. The court shall set a
placement schedule that allows the child to have regularly
occurring, meaningful periods of physical placement with
each parent and that maximizes the amount of time the
child may spend with each parent, taking into account
geographic separation and accommodations for different
households.
8
Because it does not bear on our determination in this case, we have not confirmed the
accuracy of this twelve-and-one-half percent figure and instead assume without deciding that it is
accurate.
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No. 2022AP365
¶47 Our supreme court has interpreted this statutory language in the
context of modification to a placement schedule to mean that the general directive
of “maximiz[ing] the amount of time the child may spend with each parent …
does not trump the other considerations specifically required in the statute.”
Landwehr v. Landwehr, 2006 WI 64, ¶¶14, 18, 291 Wis. 2d 49, 715 N.W.2d 180.
(first alteration in original; emphasis omitted). The circuit court must attempt to
maximize a child’s time with each parent “within the context of the various other
considerations the court is instructed to contemplate under [WIS. STAT. § 767.41].”
Id., ¶20. “The term ‘maximize’ does not supersede the [circuit] court’s discretion
to construct a schedule it determines is in the best interest of the child and
otherwise in conformity with the intricate dictates of § 767.[41].” Id.
¶48 Here, the circuit court articulated its reasoning and consideration of
the statutory factors set forth in WIS. STAT. § 767.41(5)(am) to determine the best
interests of the children as required by § 767.41(4)(a)2. The record therefore does
not support Ivan’s argument that the court failed to maximize his placement time.
¶49 Although not entirely clear, Ivan’s argument appears to be
predicated on the following assertions. First, according to Ivan, the circuit court
awarded him just twelve-and-one-half percent placement time, less than what he
requested. Second, the court found that both parents had been primary caregivers
at different points and that “[t]he kids seem to do well when they are with either
parent.” Third, the court did not explicitly address the legislative mandate to
maximize placement time with each parent and instead overemphasized
predictability and stability in awarding placement, as it did in awarding sole legal
custody to Lacey. These arguments fail to persuade.
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No. 2022AP365
¶50 As he does when discussing the circuit court’s reliance on stability
and predictability in the context of legal custody, Ivan offers no authority for the
proposition that, in considering the factors under WIS. STAT. § 767.41(5)(am) for
purposes of placement, a court cannot weigh one factor more heavily than another.
Indeed, as previously noted, Ivan concedes that “[t]he factors listed in …
§ 767.41(5)(am) have different weights for every situation.” He further
acknowledges that “[w]hat a court should do to comply with the requirement to
maximize placement is highly fact dependent.”
¶51 As previously discussed, in making its physical placement
determination, the circuit court determined that the children needed “stability and
predictability” because of the fact that “[t]hey lived in quite chaotic and toxic
environments while the parents lived together.” The court also noted that during
the course of the marriage the children had “experienced many living
arrangements” and that primary placement with Lacey was warranted so that the
children could continue to attend school in Stoughton. Moreover, in adopting the
GAL’s recommendation to award unsupervised placement every other weekend
instead of Lacey’s request for supervised placement every other Saturday, the
court evidently agreed with the GAL’s assessment that Lacey’s request would not
allow for sufficiently “meaningful” placement under the circumstances.
¶52 In sum, Ivan has failed to show that the circuit court erroneously
exercised its discretion by “failing to maximize placement.”
B. Less Than Twenty-Five Percent Placement
¶53 Ivan argues that the circuit court failed to enter specific findings of
fact to justify its award of less than twenty-five percent of placement time, as
required by the current version of WIS. STAT. § 767.41(6) (2021-22). Section
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No. 2022AP365
767.41(6) was amended during the course of the divorce proceedings, at the same
time WIS. STAT. § 767.41(5)(am) was amended. 2021 Wis. Act 37, §§ 5, 7-8.
These amendments went into effect December 1, 2021—after the court entered its
order on custody and placement on July 12, 2021, but before entry of the court’s
February 18, 2022 final judgment of divorce incorporating the custody and
placement order. The amendments to § 767.41(6) added the following statutory
requirement: “If the court grants physical placement to one parent for less than 25
percent of the time, … the court shall enter specific findings of fact as to the
reasons that a greater allocation of physical placement with that parent is not in the
best interests of the child.” Sec. 767.41(6)(a) (2021-22).
¶54 However, Ivan does not argue, nor does the record suggest, that he
raised this argument in the circuit court (for example, in a motion for
reconsideration) before the court entered its final judgment of divorce. Therefore,
this argument is deemed forfeited. See Northbrook v. City of Niagara, 2014 WI
App 22, ¶20, 352 Wis. 2d 657, 843 N.W.2d 851; State v. Rogers, 196 Wis. 2d 817,
827, 539 N.W.2d 897 (Ct. App. 1995) (“We will not ... blindside trial courts with
reversals based on theories which did not originate in their forum.”).9
9
To the extent that Ivan suggests the circuit court was required, sua sponte, to revisit its
custody and placement order based on this new statutory provision prior to incorporating the
order into its final judgment of divorce, Ivan offers no authority or developed argument in support
of this position. We therefore do not consider this argument. See State v. Pettit, 171 Wis. 2d
627, 646, 492 N.W.2d 633 (Ct. App.1992). We further point out that, throughout Ivan’s briefing
of the other issues on appeal, Ivan applies the 2019-20 version of WIS. STAT. § 767.41 that
existed at the time the court issued its order on custody and placement. He changes course,
however, when it comes to § 767.41(6), arguing that the 2021-22 version of the statute should be
applied.
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No. 2022AP365
CONCLUSION
¶55 For the reasons stated, we affirm the circuit court’s custody and
placement order and the court’s final judgment of divorce.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
23