In re Marriage of Nyland, No. 2006AP1059 (Wis. App. 5/31/2007)

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In re the Marriage of: Robin D. Nyland, Petitioner-Respondent, v. Scott E. Nyland, Respondent-Appellant.

No. 2006AP1059.

Court of Appeals of Wisconsin, District IV.

Opinion Filed: May 31, 2007.

APPEAL from a judgment of the circuit court for Dane County: ROBERT Dechambeau, Judge. Affirmed in part; reversed in part and cause remanded with directions.

Before Lundsten, P.J., Dykman and Vergeront, JJ.

¶ 1 DYKMAN, J

Scott Nyland appeals from a judgment adjudicating the divorce between Scott and Robin Nyland. Scott argues that the court erred by (1) awarding Scott and Robin joint legal custody and equal placement of the Nylands' daughter because the record does not support that decision; (2) ordering Scott to pay maintenance and child support because it did so on an erroneous determination of Scott's income; and (3) ordering the parties to sell their real estate to divide the marital properties because the record does not support that decision, and the court failed to allocate marital debt. We conclude that the court properly exercised its discretion in awarding the parties joint legal custody and equal placement of their daughter and dividing the marital estate, but erroneously exercised its discretion in determining whether and what amount of depreciation should be added back to Scott's reported income. We therefore affirm in part and reverse in part, and remand for proceedings consistent with this opinion.

Background

¶ 2 The following facts are taken from trial testimony and the circuit court's findings. Additional facts will be developed as needed in the discussion section. Scott and Robin Nyland were married in 1990. Shortly after Scott and Robin were married, Scott started his own business, which is now called S&R Remodeling. Scott and Robin were married for fifteen years and had one child, Destinee. Robin moved out of the house in February 2004 and filed this action three months later.

¶ 3 Initially, when the Nylands separated in February 2004, they agreed to divide time with Destinee equally. Several weeks after Robin filed this action, the family court commissioner held a hearing to determine temporary placement of Destinee pending final judgment in the Nylands' divorce. The commissioner gave primary placement to Scott, with Robin having placement with Destinee on Wednesdays and Sundays with no overnights. Robin testified at trial that she felt unprepared for the hearing and did not know in advance that the placement schedule was in dispute, and that she was distraught by the order limiting her time with her daughter.

¶ 4 Robin and Scott both testified at trial about problems in their relationship and about each other's shortcomings, presenting very different versions of their own and each other's parenting styles and involvement with Destinee. The guardian ad litem and family court counselor recommended Destinee be placed primarily with Scott, and that the parties should have joint custody but with impasse breaking authority going to Scott.

¶ 5 The parties also presented different versions of their property and respective incomes. Both offered personal and expert testimony supporting their views. The court awarded Scott and Robin joint legal custody and equal placement of Destinee and ordered Scott to pay Robin $800 in monthly maintenance and $496 in monthly child support. It awarded Scott the Nylands' marital home and Robin a duplex that was their previous home, and ordered the other properties sold and the profits divided equally. Scott appeals.

Standard of Review

¶ 6 Issues of maintenance and child support are within the circuit court's discretion. LeMere v. LeMere, 2003 WI 67, ¶13, 262 Wis. 2d 426, 663 N.W.2d 789. Similarly, a circuit court has discretion to determine child placement. Goberville v. Goberville, 2005 WI App 58, ¶6, 280 Wis. 2d 405, 694 N.W.2d 503. A discretionary determination is the product of a rational mental process, and is a reasoned and reasonable decision. Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). Questions of fact and law may underlie a discretionary decision. Factual findings by the circuit court will not be disturbed unless clearly erroneous. Lellman v. Mott, 204 Wis. 2d 166, 170-71, 554 N.W.2d 525 (Ct. App. 1996). A court's interpretation and application of administrative and statutory rules governing child support and maintenance are questions of law, which we review independently. See Sullivan v. Bautz, 2006 WI App 238, ¶9, ___ Wis. 2d ___, 724 N.W.2d 908.

Discussion

1. Custody and Placement

¶ 7 Scott contends that the circuit court did not properly exercise its discretion in determining placement and custody of Destinee. He argues that the record does not reflect the required demonstrated rational process to support an exercise of discretion, and that the court did not consider the relevant facts and law. Scott also argues that the facts in the record do not support the court's decision to award the Nylands equal placement and joint legal custody, and that the court was required to explain why it was not following the recommendation of the guardian ad litem and the family court counselor. We disagree with each of Scott's contentions, and conclude that the court properly exercised its discretion in awarding the Nylands joint placement and custody of Destinee.

¶ 8 Under WIS. STAT. § 767.24(5)(am) (2003-04),¹ a circuit court is required to consider the best interests of the child when exercising its discretion in determining child placement and custody. Among the enumerated factors the court is to consider in making its decision are the wishes of the child and the parents, the interaction between the child and the parents and the amount and quality of time each parent has spent with the child, the availability of child care to each parent, any evidence of interspousal abuse, whether either party has a significant drug or alcohol problem, and other factors the court deems relevant.

¶ 9 Scott cites Goberville, 280 Wis. 2d 405, and Guelig v. Guelig, 2005 WI App 212, 287 Wis. 2d 472, 704 N.W.2d 916, for the assertion that the circuit court's judgment on child placement and custody was not a proper exercise of its discretion. We conclude that Goberville and Guelig are distinguishable on their facts, and do not compel the result Scott urges.

¶ 10 In Goberville, 280 Wis. 2d 405, ¶6, we explained that a circuit court has wide discretion in determining child placement. A court is required to "articulate its findings and reasoning," although it "need not exhaustively analyze each piece of evidence." Id., ¶7. We also explained that we may "look to the record, if necessary, for reasons to support the court's exercise of discretion." Id. Because nothing in the circuit court's written judgment and order or oral statement of its decision, or the guardian ad litem recommendation on which the court relied, indicated which statutory factors or facts the court considered in reaching its decision, we remanded for the court to properly exercise its discretion. Id., ¶¶8-18. Further, the facts in the record did not support the court's decision based on the required statutory factors. Id. Thus, we concluded that "[b]ased on our scrutiny of the record, ... neither the trial court's own statements about the placement decision nor the evidence before the court are sufficient to establish that the decision reflected a reasonable exercise of discretion." Id., ¶18.

¶ 11 Similarly, in Guelig, 287 Wis. 2d 472, ¶44, we reiterated that "[a] circuit court has wide discretion in making a decision with respect to a child's physical placement." However, the only two statutory factors the record indicated the circuit court considered in Guelig were the wishes of the parents and the cooperation and communication between the parties. Id., ¶45. Our review of the record revealed no indication that the court considered those factors in terms of the best interests of the child, which is the required legal standard. Id., ¶¶45-49. We therefore reversed and remanded for the circuit court to consider all relevant statutory factors under the correct legal standard, and to articulate how its consideration of those factors resulted in the decision it reached. Id., ¶52.

¶ 12 Here, as Scott points out, the circuit court did not list the relevant statutory factors in its decision. The court did, however, specifically state that it received and considered the joint recommendation of the family court counselor and guardian ad litem. The joint recommendation specifically lists each WIS. STAT. § 767.24(5) factor and corresponding relevant findings. We have explained that a court may consider the recommendation of a guardian ad litem, and that we consider whether the guardian ad litem specifically references relevant facts and statutory factors. See Goberville, 280 Wis. 2d 405, ¶¶11-18. It does not follow, as Scott contends, that the court was required to explain why it was not following the guardian ad litem and family court counselor's recommendation.

¶ 13 Our review of the record indicates that the correct statutory factors were presented to the court and that the court had ample evidence to apply those factors to determine Destinee's best interests. The joint recommendation of the guardian ad litem and the family court counselor states that Destinee wanted more time with her mother and a little less time with her father. Further, the court found that both parties are fit to have custody of Destinee. Robin and Scott offered starkly different testimony as to their own and the other's parenting, and a circuit court is not required to believe or disbelieve any particular testimony; rather, evaluating the credibility of witnesses and determining the weight to give testimony is uniquely within the court's discretion. See Lellman, 204 Wis. 2d at 172. Robin testified that she was the primary caretaker of Destinee during her infancy and performed all of the routine baby care without help...