Jerry D. Young v. Anna M. Young

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.
December 10, 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. 2020AP357 Cir. Ct. No. 2018FA183

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

JERRY D. YOUNG,

PETITIONER-RESPONDENT,

V.

ANNA M. YOUNG,

RESPONDENT-APPELLANT.

APPEAL from a judgment of the circuit court for Columbia County:
W. ANDREW VOIGT, Judge. Reversed and cause remanded with directions.

Before Fitzpatrick, P.J., Blanchard, 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. 2020AP357

¶1 PER CURIAM. Anna Young appeals a divorce judgment arguing
that the circuit court erroneously exercised its discretion by making a prospective
and contingent legal custody award contrary to Koeller v. Koeller, 195 Wis. 2d
660, 536 N.W.2d 216 (Ct. App. 1995). We agree with Young, and accordingly we
reverse and remand for the circuit court to exercise its discretion in a manner
consistent with Koeller.

¶2 Anna and her now ex-husband Jerry Young entered into a partial
marital settlement agreement, with the legal custody of their minor child
remaining in dispute. Anna sought sole legal custody, and Jerry sought joint legal
custody. The guardian ad litem recommended sole legal custody to Anna based on
the existence of no-contact orders that included a criminal bond condition
prohibiting Jerry from having any form of contact with Anna.

¶3 As set forth in the divorce judgment, the circuit court awarded Anna
sole legal custody, determining that the no-contact conditions would substantially
interfere with the exercise of joint legal custody. However, the judgment also
stated that, “[a]t such time as these no contact conditions are no longer in effect,
the parties shall have joint legal custody.”

¶4 “‘Custody determinations are matters within the trial court’s
discretion and will be sustained on appeal where the court exercises its discretion
on the basis of the law and the facts of record and employs a logical rationale in
arriving at its decision.’” Jocius v. Jocius, 218 Wis. 2d 103, 110-11, 580 N.W.2d
708 (Ct. App. 1998) (quoting Koeller, 195 Wis. 2d at 663-64). “‘A court
erroneously exercises its discretion, however, when it bases its determination on
an error of law.’” Id. at 111 (quoting Koeller, 195 Wis. 2d at 664).

2
No. 2020AP357

¶5 Anna argues that the circuit court’s legal custody award is a
prospective and contingent custody order, contrary to Koeller and subsequent case
law based on Koeller. She contends that, under Koeller, the circuit court lacked
authority to make a legal custody award that could automatically change custody
at some unknown time in the future. We agree.

¶6 In Koeller, this court overturned a custody order that would have
transferred custody and placement upon the death or incapacitation of a parent
diagnosed with terminal cancer. See Koeller, 195 Wis. 2d at 662-63. In reversing
the order, we stated that neither the statute governing custody determinations, “nor
any other relevant statute or case states, or even suggests, that a change in custody
may be ordered contingent upon the occurrence of some anticipated event.” See
id. at 665. Rather, we stated, the applicable statutes “must be read to embody a
sense of contemporaneity in custody determinations, whether in original or
modification proceedings.” Id. at 666. We concluded: “We do not see how the
power to order a change of custody that is to take place at some unknown time in
the future, upon the occurrence of some stated contingency, may be necessarily
implied or inferred from the authority granted to the court.” Id. at 667; see also
Culligan v. Cindric, 2003 WI App 180, ¶13, 266 Wis. 2d 534, 669 N.W.2d 175
(“It is well settled that a circuit court lacks the statutory authority at divorce to
order a change of physical placement that is both prospective and contingent on
the occurrence of some anticipated event.”).

¶7 We acknowledged in Koeller that “[t]he trial court’s concern for the
children’s welfare in the unfortunate event that their mother becomes incapacitated
or dies during their minority is understandable.” See Koeller, 195 Wis. 2d at 668.
Nonetheless, we reversed because the prospective and contingent custody award
went beyond the court’s statutory authority. See id.

3
No. 2020AP357

¶8 Similarly here, although the circuit court’s legal custody award was
undoubtedly well-intended and made with the child’s best interest in mind, we
reverse because the award went beyond the court’s authority. In the words of
Koeller, the award impermissibly provided for “a change of custody that is to take
place at some unknown time in the future, upon the occurrence of some stated
contingency.” See id. at 667.1

¶9 Anna requests that we direct the circuit court to enter an order that
grants her sole legal custody without a prospective provision for joint custody.
We conclude that the better approach is to remand for the circuit court to exercise
its discretion in a manner consistent with Koeller.

By the Court.—Judgment reversed and cause remanded with
directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2017-18).

1
Jerry appears to assert that the date he will resume contact with Anna is certain, being
set to occur in January 2021. However, Jerry does not provide a record citation to support this
assertion. Regardless, at the time that the circuit court decided legal custody, the court found that
the date was unknown, as shown by the following exchange at the hearing on custody:

MR. YOUNG: Just so I understand, if I get the bond
conditions amended, then we go to shared custody in 67 days?
Or whenever it does happen?

THE COURT: I don’t know when. Frankly, it could
happen in a week, or it could happen a year from now. I don’t
know, but unless I enter a different order, then joint legal
custody starts on the day the bond conditions end.

4