F.P.R. v. J.M.

LOUIS J. CECI, J.

{dissenting). The emotional appeal of the majority opinion cannot be denied. However, I believe that the court of appeals, in its published decision, provides the correct interpretation of the plain, unambiguous, and clear provisions of sec. 767.245, Stats. This court has stated that, in determining the legislative intent of a statute, "first resort must be to the language of the statute itself.” Ball v. District No. 4, Area Board, 117 Wis. 2d 529, 538, 345 N.W.2d 389 (1984). This court may attempt to ascertain the legislative intent by delving into the scope, history, subject matter, and context of the statute only if the language of the statute is ambiguous or unclear.

The court of appeals properly stated that visitation is controlled by sec. 767.245, Stats., and that the plain language of that statute limits those entitled to visitation. Those who may be entitled to visitation are the parents, grandparents, and greatgrandparents.1

It is my view that the statute is clear and unambiguous on its face and permits a grant of visitation rights only to those specified. Since the statutory meaning is clear and unambiguous, this *392court may not resort to extrinsic sources to aid in its interpretation of the statute. The legislature’s failure to specifically confer authority on the court to grant visitation to persons other than those specified is evident, especially if one applies the doctrine of expressio unius est exclusio alterius.

The majority erroneously contends that the visitation provision contained in sec. 247.24(l)(c), Stats. 1975,2 was not meant to apply exclusively to grandparents and relies on the holdings in Weichman v. Weichman, 50 Wis. 2d 731, 184 N.W.2d 882 (1971), and Ponsford v. Crute, 56 Wis. 2d 407, 202 N.W.2d 5 (1972), for support. Those holdings were codified by sec. 247.24(1)(c). See, Draftsman’s Note for the Legislative Reference Bureau, LRB-366-1, dated November 7, 1974; majority opinion at page 387. However, the majority reads Weichman and Ponsford as establishing a body of law permitting visitation to a broad category of "other parties” and contends that that body of law continues in full force today. A broad reading of Weichman and Ponsford is not warranted, given the narrowness of the issues in each of those cases.

In Weichman, then Chief Justice Hallows set forth the sole issue on review in that case: "[T]he *393issues were narrowed to whether the court abused its discretion in granting visitation rights to the paternal grandparents.” 50 Wis. 2d at 734. (Emphasis added.)

In Ponsford, the court characterized the dispute as one "between the natural father and the maternal grandparents for the custody of a small child.” 56 Wis. 2d at 409. The court was unambiguous in that case when it specifically defined the issues as follows:

"1. In child custody cases does the doctrine of the best interests of the child prevail over the right of a parent to the custody of the child?
"2. Was there sufficient credible evidence to support the finding that the father is a fit and proper person to have the care and custody of his minor child?
"3. Did the trial court have legal authority to grant visitation rights to the grandparents?
"...” Id. at 411-12.

In Ponsford, the court quoted from the dicta set forth in Welchman, which stated that, "'There is no statutory or common-law rule which forbids a court in a divorce action from granting visitation rights to parents or to others.’” Id. at 415, quoting Welchman, 50 Wis. 2d at 734. It is upon the use of such dicta that the majority attempts to build its case to permit, over the objection of the natural parents, an order for visitation of an aunt who had previously had custody of the child for six years, by stipulation of the parents.

Reliance on that dicta is inappropriate for two reasons. First, as noted above, both Welchman and Ponsford involved visitation and/or custody disputes between a natural parent and a grandparent. Neither Welchman nor Ponsford can be construed to apply to a broad category of individuals, given the narrowness of the statement of the issues and holdings in both of *394those cases. The reference to "others” is pure dicta and hardly provides support for an expansive reading of the current visitation statute.

Second, at the time Weichman and Ponsford were decided, there was no statute exclusively governing visitation. It was not until 1977, when provisions of the Family Code were substantially amended, that this court was provided with any explicit legislative guidance with respect to visitation rights. See, sec. 247.245(4), Stats. 1977. Section 247.245(4) (now 767.245(4)) additionally included greatgrandparents within the ambit of individuals covered by the visitation statute. I view this section as a definitive and exclusive expression of the legislature’s intent on visitation matters.

Section 247.24, Stats. 1975, never spoke solely or even primarily to the question of visitation. Rather, its focus was on "the care, custody, maintenance and education of the minor children of the parties” ("the parties” obviously referring to the parents). Section 247.24(l)(a). The reference to visitation which is contained in sec. 247.24(l)(c) is merely ancillary to the custody portions of the statute. Yet the majority continues to rely heavily on sec. 247.24(l)(c) to support its position. I believe that the court errs in so doing.

In any case, even assuming that extrinsic sources such as sec. 247.24(l)(c) and the Weichman and Ponsford cases are relevant due to an arguable ambiguity in the current sec. 767.245(4), the majority’s reading of those sources is surprisingly selective. Section 247.24(l)(b), Stats. 1975, states, in part, that:

"... if the interest of any such child demands it, and if the court finds either that the parents are unable to adequately care for any such child or are *395not fit and proper persons to have the care and custody thereof, [the court] may declare such child a dependent and give the care and custody of such child to a relative (as defined in ch. 48) of the child, a county agency specified in s. 48.56(1), a licensed child welfare agency, or the department of health and social services. ...”

A relative, as currently defined in ch. 48, means

"... parent, grandparent, stepparent, brother, sister, first cousin, nephew, niece, uncle or aunt. This relationship may be by consanguinity or direct affinity." Section 48.02(15), Stats.3

It is my view that any purported ambiguity in sec. 767.245(4) can be resolved by reference to this section, for it seems obvious that the legislature could very easily have inserted the word "relative” in the current visitation statute, just as it did in sec. 48.02(15). With the insertion of the word "relative,” visitation for an aunt would have been explicitly provided for. Instead, the current statute is limited to parents, grandparents, and greatgrandparents.

In addition, the same statutory section which supplies a definition of "relative” also supplies a definition of parent, as follows:

'"Parent’ means either a biological parent, a husband who has consented to the artifcial insemination of his wife under s. 891.40, or a parent by adoption. If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60, 'parent’ includes a *396person adjudged in a judicial proceeding to be the biological father. 'Parent’ does not include any person whose parental rights have been terminated." Section 48.02(13), Stats.4

If the majority is confused with respect to the definition of the word "parent,” rather than looking to a secondary definition in a dictionary, it should look to sec. 48.02(13) for guidance. When reading the definitions of "parent" and "relative" contained in sec. 48.02, it becomes evident that aunts, uncles, cousins, et al. have received separate recognition by the legislature. It is equally evident that relatives, beyond those specifically noted, have not received separate legislative recognition in the current visitation statute, sec. 767.245. Therefore, even if the visitation statute is viewed as ambiguous, reference to outside sources such as sec. 247.24, Stats. 1975, (and, in turn, sec. 48.02), does not help the majority to reach the result it advocates here. Rather, these sources militate against the majority's interpretation of the statute.

For these reasons, I dissent. I am authorized to state that JUSTICE ROLAND B. DAY joins in this dissenting opinion.

Section 767.245 provides, in part, as follows: "(1) A parent is entitled to reasonable visitation rights unless ... visitation would endanger the child’s ... health ... (4) The court may grant reasonable visitation privileges to a grandparent or greatgrand-parent... if the court determines that it is in the best interests ... of the child. ...”

Section 247.24(l)(c), Stats. 1975, provided:

"247.24 Judgment: care and custody of minor children. (1) In rendering a judgment of annulment, divorce or legal separation, the court may:
" (c) Grant reasonable visitation privileges to a grandparent of any minor child if the court determines that it is in the best interest and welfare of the child and issue any necessary order to enforce the same.'1

Prior to the 1977 amendment to the Family Code, a relative was defined as "a parent, grandparent, brother, sister, uncle or aunt. ...” Section 48.02(12), Stats. 1975.

The 1975 version, sec. 48.02(11), provided that, "Parent’ means either a natural parent or a parent by adoption. If the child is born out of wedlock but not subsequently legitimated or adopted, 'parent’ means the natural mother and a person adjudged in a court proceeding to be the natural father.”