Mary L. Fabian v. Andrew T. Fabian

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.
July 9, 2020
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. 2019AP1366 Cir. Ct. No. 2012FA154

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

MARY L. FABIAN,

PETITIONER-APPELLANT,

V.

ANDREW T. FABIAN,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Sauk County:
MICHAEL P. SCRENOCK, Judge. Affirmed.

Before Blanchard, 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. 2019AP1366

¶1 PER CURIAM. Mary Grogan appeals a circuit court order that
denied Grogan’s motion to modify child placement.1 Grogan contends that the
court erred by denying the motion on the ground that Grogan failed to show a
substantial change in circumstances. Specifically, Grogan asserts that: (1) there
was a disputed issue of fact as to whether Grogan had altered her conduct since the
last hearing; and (2) the circuit court failed to specifically address the other factual
allegations that Grogan made in support of the motion. For the reasons set forth in
this opinion, we conclude that the circuit court properly denied the motion to
modify placement and accordingly we affirm.

¶2 Andrew Fabian and Grogan were divorced in April 2014. The
divorce judgment awarded equal periods of placement for the parties’ four
children, A.F., B.F., M.F., and J.F. In July and August 2015, the parties filed
cross-motions to modify child placement, each seeking primary placement of the
children. The parties stipulated that Grogan’s move 100 miles away was a
substantial change in circumstances that rendered the equal placement untenable,
but disputed which parent should have primary physical placement. The court
found, based on testimony and evidence presented at a February 2016 hearing, that
Grogan’s conduct was causing a deterioration in Fabian’s relationship with M.F.
and that M.F.’s placement with Grogan was detrimental to M.F.’s physical and
emotional health. Accordingly, the court entered an order on February 18, 2016,
that awarded primary placement to Fabian with periods of placement with Grogan.

1
Grogan’s name appears in the caption of this appeal as “Mary L. Fabian,” but she refers
to herself as “Grogan,” and we follow suit.

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No. 2019AP1366

¶3 In August 2018, Grogan again moved to modify placement, arguing
that there had been a substantial change in circumstances since the prior order.
The circuit court held a hearing and heard arguments from the parties. The court
determined that the facts alleged by Grogan did not establish a substantial change
in circumstances. The court denied the motion without taking any evidence, but
assuming in Grogan’s favor all of her allegations of fact. Grogan appeals.

¶4 Under WIS. STAT. § 767.451(1)(b) (2017-18),2 a court may modify
child placement if there has been a substantial change of circumstances since the
entry of the last order and modification would be in the child’s best interest. The
first step in the circuit court’s review of a motion to modify placement is whether
the moving party has shown a substantial change of circumstances since the entry
of the last order. Shulka v. Sikraji, 2014 WI App 113, ¶24, 358 Wis. 2d 639, 856
N.W.2d 617. “A substantial change of circumstances ‘requires that the facts on
which the prior order was based differ from the present facts, and the difference is
enough to justify the court’s considering whether to modify the order.’” Id.
(quoted source omitted).

¶5 The circuit court does not move to the second step of considering
whether modification would be in the child’s best interest unless the court first
determines that there has been a substantial change in circumstances. Id. Here,
the circuit court determined that Grogan’s motion did not allege facts that showed
a substantial change in circumstances, and therefore did not move on to the best
interests inquiry.

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP1366

¶6 “Whether a party seeking to modify an existing physical placement
order has established a substantial change in circumstances is a matter of law we
review de novo.” Id., ¶25. However, we give weight to the court’s substantial
change in circumstances decision “‘because the determination is heavily
dependent upon an interpretation and analysis of underlying facts.’” Id. (quoted
source omitted).

¶7 Grogan argues that the circuit court erred by denying her motion to
modify child placement.3 She contends that her motion alleged the following facts
that established a substantial change in circumstances: (1) an improvement in
M.F.’s relationship with Fabian; (2) Fabian’s new employment schedule outside of
the home and romantic relationship with a woman who lives some distance away,
hindering his ability to supervise the children and attend to their medical needs;
(3) B.F.’s recent behavioral issues, including use of alcohol and drugs and viewing
pornography; and (4) M.F.’s desire to attend high school near Grogan’s residence.
Grogan contends that the court erred by denying her motion to modify placement
without an evidentiary hearing because, she asserts, there is a disputed issue of
fact as to whether she has changed her behavior since the last hearing. In support,

3
Fabian moved to dismiss Grogan’s motion to modify placement. The circuit court
stated that it would treat the motion as one for summary judgment because the parties had
submitted evidence. The court then granted summary judgment to Fabian and denied Grogan’s
motion on the ground that the allegations in Grogan’s motion did not set forth a substantial
change in circumstances. On appeal, the parties do not address whether summary judgment could
be a proper mechanism for resolving a motion to modify placement. See, e.g., WIS. STAT.
§ 802.08(1) (summary judgment available on any claim, counterclaim, cross claim or third-party
claim). Because we conclude that the allegations in Grogan’s motion did not show a substantial
change in circumstances, even assuming all of her allegations of fact are true, and that the circuit
court properly denied the motion without holding an evidentiary hearing on that basis, we do not
need to, and do not, reach the issue whether summary judgment could be a proper mechanism for
resolving a motion to modify placement.

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No. 2019AP1366

Grogan asserts that the improved relationship between M.F. and Fabian strongly
suggests the inference that Grogan has altered the behavior that the court found
had been causing the deterioration in the relationship between Fabian and M.F.
She also contends that the court erred by failing to specifically address Grogan’s
other allegations that Grogan argued established a substantial change in
circumstances. We disagree.

¶8 To begin, we reject Grogan’s contention that there was a dispute as
to whether Grogan had changed the conduct that the court had found was causing
a deterioration in M.F.’s relationship with Fabian. At the hearing on Grogan’s
motion to modify placement, Grogan expressly conceded that she was not alleging
any change in her own behavior since the last placement hearing as a substantial
change in circumstances. Moreover, Grogan does not point to any facts in her
motion alleging a change in her behavior. Rather, she argues that the
improvement in the Fabian-M.F. relationship strongly supports an inference that
Grogan’s behavior has changed. However, we are not persuaded that the
improvement in M.F.’s relationship with Fabian amounts to an allegation that
Grogan has altered her conduct. Accordingly, the circuit court did not err by
determining that Grogan did not allege any change in her own conduct since the
prior placement hearing.

¶9 Next, we are not persuaded that the circuit court erred by failing to
specifically address each of the factual allegations in Grogan’s motion to modify
placement. At the hearing on Grogan’s motion to modify placement, the circuit
court confirmed with Grogan that she was making the following allegations of fact
and presenting them as support for a substantial change in circumstances: (1) an
improved relationship between M.F. and Fabian; (2) Fabian’s change in
employment from working at home to working outside of the home, and his
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No. 2019AP1366

relationship with a woman who lived some distance from his residence, so that he
had less time at home to supervise the children; (3) M.F.’s admission into an
academically prestigious high school near Grogan; and (4) B.F.s citation for
underage drinking and Fabian’s allegedly complicit parenting regarding B.F.’s
year-long experimentation with alcohol, marijuana, vaping, and on-line dating.4
The court allowed Grogan the opportunity to argue why she believed each of those
facts showed a substantial change in circumstances. The court then explained that
it would accept Grogan’s allegations as true on any point that appeared to
represent a factual dispute between the parties. On that basis, the court determined
that Grogan had not alleged facts that showed a substantial change in
circumstances. That is, after confirming with Grogan the specific allegations that
she asserted showed a substantial change in circumstances, the court determined
that those allegations were insufficient to meet the first step of the court’s analysis
under WIS. STAT. § 767.451(1)(b).

4
Grogan also alleged in the circuit court that Fabian’s financial situation had gotten
worse and that M.F. and J.F. preferred primary school week placement with Grogan. While
Grogan now alleges facts related to Fabian’s finances in her Statement of the Case, she does not
develop any argument related to those allegations in the argument section of her brief on appeal.
Additionally, while Grogan asserts on appeal that M.F. wishes to attend high school near Grogan,
she develops no other argument on appeal related to her claim that M.F. and J.F. desire weekday
placement with her. We therefore do not address those specific allegations further. To the extent
that Grogan alleged other facts in her motion to modify placement but has not developed any
argument based on those facts on appeal, we deem any argument based on those facts abandoned.

Separately, we note that, at the April 11, 2019 hearing on Grogan’s motion to modify
placement, the parties agreed that B.F. had already turned eighteen and that the court therefore
did not have authority to modify placement as to her. On appeal, Grogan acknowledges that a
decision by this court will not affect B.F., but argues that Grogan’s contentions as to Fabian’s
parenting of B.F. establish a substantial change in circumstances warranting a change in
placement as to the other children.

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No. 2019AP1366

¶10 We agree with the circuit court that Grogan failed to show a
substantial change in circumstances, even assuming all of her allegations to be
true. As noted above, Grogan conceded in the circuit court that she was not
alleging any alteration in her behavior that the court had determined was causing a
deterioration in M.F.’s relationship with Fabian, and which the court explained
was the reason it awarded primary placement to Fabian in February 2016. We
conclude that, in light of the undisputed fact that Grogan did not allege any change
in her behavior that was the basis for the court’s prior order, the changes Grogan
alleged as to M.F.’s relationship with Fabian, Fabian’s time outside the home, and
the children’s behavior and school preferences were not “‘enough to justify the
court’s considering whether to modify the order.’” Shulka, 358 Wis. 2d 639, ¶24
(quoted source omitted). Accordingly, the court properly denied the motion to
modify placement on the ground that Grogan failed to meet her burden under the
first step of WIS. STAT. § 767.451(1)(b) to show a substantial change in
circumstances.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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