Abbas v. Palmersheim

LUNDSTEN, J.

¶ 36. (concurring). I agree with much of the lead opinion. I join the conclusions that there was a substantial change in circumstances in this case and that there is no equal protection violation. Regarding the construction of the status quo language found in Wis. Stat. § 767.325(1)(b)2,1 join the conclusion that the status quo presumption that applies to *334custody modification requests is unaffected by the creation of § 767.325(5m). I write separately, however, because I differ in how I reach that conclusion. Unlike the lead opinion, I conclude that the statutes are unambiguous.

¶ 37. The asserted conflict between the different custody presumptions arises in cases where a prior order gives sole custody to one parent and, later, the other parent requests modification of the order to joint custody. Here, the mother has had sole custody since 1992 and the father, Palmersheim, seeks modification to joint custody. Palmersheim argues that the joint custody presumption in Wis. Stat. § 767.24(2) (am) trumps the status quo presumption in Wis. Stat. § 767.325(l)(b)2 because § 767.325(5m) states that modifications to custody and placement orders "shall" be made in a "manner consistent with" § 767.24, and § 767.24 contains the joint custody presumption.

¶ 38. My review of the legislative history leads me to conclude that there is nothing in that history that reliably demonstrates whether the many legislators who voted for the changes encompassed in 1999 Wis. Act 9 intended that one of those changes be that the status quo presumption applicable to modification proceedings take a back seat to the joint custody presumption. In any event, we need not engage in an effort to discern the subjective intent of legislators because the statutes at issue are unambiguous.

¶ 39. The joint custody presumption applies to initial custody decisions. Typically, at the time of an initial custody decision, change for the children is unavoidable. At this initial stage, the legislature has provided that courts "shall presume that joint legal custody is in the best interest of the child." Wis, Stat. § 767.24(2)(am). Obviously, the legislature has deter*335mined that, in the aftermath of a parting of the ways of parents, children benefit from the active involvement of both parents. No ambiguity here.

¶ 40. Just as plainly, the legislature recognizes that children benefit from continuity. Thus, under Wis. Stat. § 767.325(l)(b), the modification of a custody order must be "in the best interest of the child" and "there is a rebuttable presumption that... Continuing the current allocation of decision making under a legal custody order is in the best interest of the child." No ambiguity here either.

¶ 41. Palmersheim argues, and the lead opinion agrees, that Wis. Stat. § 767.325(5m) introduces ambiguity. I disagree. Section 767.325(5m) reads, in pertinent part: "In all actions to modify legal custody. . . the court. . . shall make its determination in a manner consistent with s. 767.24." There is, however, nothing inconsistent between the joint custody presumption applied at the time of an initial custody decision and the status quo presumption applied two or more years later, the time after which the status quo presumption applies.

¶ 42. As the lead opinion points out, when courts construe statutes, specific language controls general language. See Brown County v. State Pub. Defender, 167 Wis. 2d 168, 174, 482 N.W.2d 665 (Ct. App. 1992) ("[W]hen a general and a specific statute relate to the same subject matter, the specific statute controls."). Here, Wis. Stat. § 767.325(1)(b)2 is specific and clear, whereas § 767.325(5m) is general and, as it relates to this topic, at best ambiguous. I agree with the lead opinion's statement that "[i]f a sufficient number of legislators had reached agreement that the status quo presumption should not apply when an existing custody order is for sole custody, then surely the legislature *336would have chosen a means less obscure than § 767.325(5m) to achieve that result." Lead opinion at ¶ 27. Stated differently, there is no ambiguity because the unambiguous specific language of § 767.325(l)(b)2 controls over the ambiguous general language found in § 767.325(5m).

¶ 43. The dissent proposes a creative solution not suggested by either party. However, I agree with the view expressed by the lead opinion that applying both presumptions simultaneously is not a viable interpretation of the statutes. I offer a few more words on that topic.

¶ 44. It is not hard to imagine how the dissent's proposal would be received by parties and trial court judges. Putting myself in the place of a trial court judge attempting to apply the dissent's proposal, I might ask the following:

Now let me get this straight. The mother here has sole custody because of the 1999 order. The father wants a switch to joint custody. There is a lot of credible evidence both for and against maintaining the status quo. Do I have this right? Is the court of appeals telling me I must apply both the presumption of continued sole custody and the presumption that I should switch to joint custody? I guess I am supposed to decide which presumption gets more weight, but how should I do that?

The dissent's proposal has the effect of nullifying both presumptions in cases in which a presumption is needed most, that is, close cases where it is not clear whether the current custody arrangement should be maintained or modified.

¶ 45. Finally, I note that the dissent weaves into its discussion a topic not emphasized by the parties or the lead opinion: the maximization-of-placement-time directive found in Wis. Stat. § 767.24(4)(a)2. The allocation of placement time often has a greater effect on *337children and parents than decision-making authority conferred by custody allocation orders. It seems to me that Palmersheim's argument in this regard is weaker still because, as the dissent explains, in contrast to custody, there is no presumption of equal physical placement. See Lofthus v. Lofthus, 2004 WI App 65, ¶ 14, 270 Wis. 2d 515, 678 N.W.2d 393, review dismissed, 2004 WI 50, 271 Wis. 2d 113, 679 N.W.2d 547 (No. 03-1754); Arnold v. Arnold, 2004 WI App 62, ¶ 2, 270 Wis. 2d 705, 679 N.W.2d 296, review denied, 2004 WI 50, 271 Wis. 2d 112, 679 N.W.2d 547 (No. 03-1547), cert. denied, 125 S.Ct. 112 (2004); Keller v. Keller, 2002 WI App 161, ¶ 12, 256 Wis. 2d 401, 647 N.W.2d 426. If I am wrong in my conclusion that there is no conflict between the joint custody presumption applicable to initial custody decisions and the status quo presumption applicable to modification proceedings, then an important question arises as to whether there is a conflict between the maximization-of-placement-time directive (which is something less than an equal placement presumption) and the continuity presumption.

¶ 46. It would be hard to overstate the importance of the subjects we address today: decision-making authority of parents and placement time. I readily admit I do not know whether the legislature subjectively intended to eliminate or modify the status quo presumption in cases like the one before us. I only know that it failed to do so. At the same time, this court does not have the final word on the topic. The dissent recommends that the supreme court accept this case for review if a petition is filed, and I join in that recommendation. Further, if the legislature's intent was to eliminate or modify the status quo presumption, the lead, dissenting, and concurring opinions in this case should leave no doubt as to how that goal can be achieved.