Mark Jason Anderson v. Erica Jean Lindquist

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.
September 28, 2021
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. 2020AP1816 Cir. Ct. No. 2017FA8

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE MARRIAGE OF:

MARK JASON ANDERSON,

PETITIONER-RESPONDENT,

V.

ERICA JEAN LINDQUIST A/K/A ERICA JEAN ANDERSON,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Dunn County:
JAMES M. PETERSON, Judge. Affirmed.

Before Stark, P.J., Hruz 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. 2020AP1816

¶1 PER CURIAM. Erica Lindquist appeals an order granting
Mark Anderson’s motion to modify physical placement of the parties’ minor
children. Lindquist argues the circuit court erred by determining that the last order
substantially affecting physical placement was the parties’ July 2017 divorce
judgment, rather than a subsequent order entered in August 2018 that permitted
Lindquist to move to Minnesota and exercise physical placement there. In the
alternative, Lindquist argues that even if the July 2017 divorce judgment was the
last order substantially affecting physical placement, Anderson failed to establish
that a substantial change in circumstances had occurred since that time. Finally,
Lindquist argues that the court erroneously exercised its discretion by determining
that Anderson’s proposed modification of physical placement would be in the
children’s best interest. We reject each of these arguments and affirm.

BACKGROUND

¶2 Lindquist and Anderson were married in October 1998, and
Anderson petitioned for divorce in January 2017. A judgment of divorce was
entered in July 2017, at which time the parties’ two minor children were ages five
and six, respectively.

¶3 The divorce judgment incorporated a marital settlement agreement
(MSA), which provided that the parties would have joint legal custody of the
children and would exercise physical placement “as set forth in the attached
Exhibit A.” Exhibit A, a calendar for the year 2017, reflected that the parties
would have equal physical placement of the children during the summer, but
during the school year Lindquist would have physical placement approximately
two-thirds of the time. The parties’ respective periods of physical placement
during the school year did not always follow a predictable pattern but were instead

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structured to accommodate Lindquist’s need to travel for work. The MSA stated
that after 2017, “the schedule of time between the parents shall remain the same;
however, the specific schedule for the following year will be agreed upon between
the parties by November of the current year, or as soon thereafter as possible.”

¶4 At the time of the divorce, both parties lived in Menomonie,
Wisconsin. However, in May 2018, Lindquist filed a notice of her intent to move
to Baytown Township, Minnesota, which is approximately fifty-five miles from
Menomonie. Anderson initially objected to the move, but the parties ultimately
entered into a stipulation regarding the move and several related issues.

¶5 As relevant here, the stipulation provided that: (1) Lindquist could
move to Baytown Township and exercise her physical placement of the parties’
children at her residence there; (2) unless agreed to by the parties or ordered by the
circuit court, the children would attend school in the Menomonie School District;
(3) each party would be responsible for ensuring that the children arrived at school
on time on their respective placement days; (4) both parties would adhere to
school district attendance policies and would notify the other parent of any
absences from school; (5) during the winter months, the parties would monitor and
communicate about forecasted inclement weather insofar as it affected their ability
to transport the children; and (6) the parties would confer and agree on the
children’s participation in school-sanctioned extracurricular activities if those
activities affected the other parent’s placement, and each party would be allowed
to enroll the children in activities that did not affect the other parent’s placement.
The court entered an order approving the parties’ stipulation in August 2018.

¶6 In February 2020, Anderson filed a motion to modify physical
placement. As grounds for the motion, Anderson alleged that the parties had been

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unable to cooperate to develop a yearly placement schedule, as required by the
MSA. Anderson further alleged that the parties’ circumstances had changed since
they entered into the MSA because: (1) Lindquist had changed jobs and was no
longer required to travel frequently for work; (2) Lindquist had stopped allowing
Anderson to exercise additional placement time with the children while she was
traveling; (3) the children were older than at the time the divorce judgment was
entered; and (4) Lindquist had moved to Minnesota, which required the children to
travel for significant amounts of time on Lindquist’s placement days to attend
school in Menomonie. Under these circumstances, Anderson contended it would
be in the children’s best interest to “implement a more traditional and consistent
shared placement schedule.” Anderson therefore asked the circuit court to modify
physical placement to provide for equal placement during the school year,
according to a “week-on, week-off placement schedule.”

¶7 The circuit court held a hearing on Anderson’s motion to modify
physical placement, at which both Anderson and Lindquist testified. Following
their testimony, the children’s guardian ad litem recommended that the court grant
Anderson’s motion and implement an equal placement schedule during the school
year.

¶8 The circuit court ultimately granted Anderson’s motion to modify
physical placement in an oral ruling. First, the court concluded that the last order
substantially affecting physical placement was the July 2017 divorce judgment,
which incorporated the parties’ MSA. Second, the court concluded that there had
been a substantial change in circumstances since the entry of the divorce judgment
because Lindquist was no longer required to travel frequently for work, and
because she had moved to a different community that was approximately fifty-five
miles away from the children’s school. Third, after considering the factors set

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forth in WIS. STAT. § 767.41(5)(am) (2019-20),1 the court determined that it would
be in the children’s best interest to adopt an equal placement schedule during the
school year, with Anderson and Lindquist having alternating weeks of placement.
The court subsequently entered a written order memorializing its oral ruling, and
Lindquist now appeals. Additional facts are included below as necessary.

DISCUSSION

¶9 Motions to modify physical placement are governed by WIS. STAT.
§ 767.451. If more than two years have elapsed since the entry of a final judgment
determining physical placement, a court may modify physical placement in a way
that substantially alters the time a parent may spend with his or her child if the
court finds that: (1) there has been a substantial change in circumstances since the
entry of the last order substantially affecting physical placement; and (2) the
modification is in the child’s best interest. Sec. 767.451(1)(b)1. There is a
rebuttable presumption that it is in a child’s best interest to continue his or her
physical placement with the parent with whom the child resides for the greater
period of time. Sec. 767.451(1)(b)2.b.

¶10 In this appeal, Lindquist argues the circuit court erred by concluding
that: (1) the July 2017 divorce judgment was the last order substantially affecting
physical placement; (2) a substantial change in circumstances had occurred since
the divorce judgment was entered; and (3) Anderson’s requested modification of
physical placement was in the children’s best interest.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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I. Last order substantially affecting physical placement

¶11 Physical placement determinations are committed to the circuit
court’s sound discretion and will be sustained on appeal if the court exercised its
discretion based on the law and the facts of record and employed a logical
rationale in arriving at its decision. Culligan v. Cindric, 2003 WI App 180, ¶7,
266 Wis. 2d 534, 669 N.W.2d 175. We independently review any legal questions
underlying a circuit court’s discretionary decision. Covelli v. Covelli, 2006 WI
App 121, ¶13, 293 Wis. 2d 707, 718 N.W.2d 260. The determination of which
prior order constitutes the last order substantially affecting physical placement for
purposes of WIS. STAT. § 767.451(1)(b) is a question of law for our independent
review. See Culligan, 266 Wis. 2d 534, ¶¶8-15.2

¶12 Lindquist contends the circuit court erred by determining that the
July 2017 divorce judgment was the last order substantially affecting physical
placement, rather than the August 2018 order, following the parties’ stipulation,
that permitted Lindquist to move to Minnesota. She argues the August 2018 order
substantially affected physical placement because it allowed her to exercise her
physical placement of the children at her new residence in Minnesota. She also
asserts that the August 2018 order substantially affected physical placement
because it “specifically addressed where the children would attend school, [and]
addressed school transportation needs and the children’s participation in
school-sanctioned extracurricular activities.”

2
Culligan v. Cindric, 2003 WI App 180, ¶1 & n.1, 266 Wis. 2d 534, 669 N.W.2d 175,
interpreted and applied WIS. STAT. § 767.325(1)(b) (2001-02). That statute was later renumbered
as WIS. STAT. § 767.451(1)(b). See 2005 Wis. Act 443, § 160.

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¶13 Lindquist’s arguments are foreclosed by our decision in Culligan.
There, we concluded that the ordinary meaning of the term “affect” is “to act
upon” or “to produce an effect upon.” Id., ¶14 (citation omitted). We therefore
held that an order affects physical placement when it “produces an effect on the
periods of physical placement awarded the parties, which effect a court may
enforce at a later date.” Id. We further stated that, “[i]n practical terms, a revision
of a placement order produces an effect on physical placement by requiring a
different placement allocation.” Id. (emphasis added).

¶14 The circuit court’s August 2018 order did not require a different
placement allocation between the parties. Nothing in that order changed the
amount of physical placement to which each party was entitled. Instead, the order
merely allowed Lindquist to establish her residence in Minnesota and to exercise
her periods of physical placement there. None of the order’s other provisions had
any effect on the allocation of physical placement between the parties. Thus,
under Culligan, the August 2018 order did not affect—much less substantially
affect—physical placement.

¶15 Lindquist argues that the August 2018 order must have affected
physical placement because the circuit court later cited her move to Minnesota as
one of the grounds for its determination that a substantial change in circumstances
had occurred. This argument fails because whether an order affected physical
placement for purposes of WIS. STAT. § 767.451(1)(b) is a separate inquiry from
whether a particular set of facts constitutes a substantial change in circumstances.
As already discussed, the former inquiry requires a determination of whether the
order in question required a different placement allocation. See Culligan, 266
Wis. 2d 534, ¶14. Here, for the reasons explained above, we conclude the
August 2018 order did not. Under the test set forth in Culligan, the fact that the

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order allowed Lindquist to move to Minnesota and exercise physical placement
there—which the court ultimately determined to be a substantial change in
circumstances—does not compel a conclusion that the order affected physical
placement.

¶16 In her reply brief, Lindquist appears to suggest that the August 2018
order affected physical placement because her move to Minnesota resulted in
significant additional travel time for the children. That additional travel time,
however, did not affect the allocation of physical placement between the parties.
Lindquist had the same amount of physical placement both before and after the
August 2018 order was entered. Following the August 2018 order, she was simply
required to spend an increased amount of her placement time transporting the
children to and from school. That result does not constitute an effect on physical
placement under Culligan.

¶17 Lindquist also asserts in her reply brief that Anderson “admitted”
during his testimony that the August 2018 order was the last order substantially
affecting physical placement. However, we are not bound by a party’s concession
of law. Cramer v. Eau Claire Cnty., 2013 WI App 67, ¶11, 348 Wis. 2d 154, 833
N.W.2d 172. In any event, while Lindquist quotes a portion of Anderson’s
testimony on cross-examination during which he agreed that the August 2018
order permitting Lindquist to move to Minnesota was the “last substantial change
of the placement schedule,” Anderson later clarified on redirect examination that
the August 2018 order did not actually change the placement schedule. Thus,
contrary to Lindquist’s assertion, Anderson did not concede during his testimony
that the August 2018 order was the last order substantially affecting physical
placement.

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II. Substantial change in circumstances

¶18 Lindquist next argues that even if the circuit court properly
determined that the July 2017 divorce judgment was the last order substantially
affecting physical placement, the court erred by concluding that a substantial
change in circumstances had occurred since that judgment was entered. Whether a
party seeking to modify physical placement has established a substantial change in
circumstances is a question of law that we review independently. Shulka v.
Sikraji, 2014 WI App 113, ¶25, 358 Wis. 2d 639, 856 N.W.2d 617. In doing so,
however, we give weight to the circuit court’s decision “because the determination
is heavily dependent upon an interpretation and analysis of underlying facts.”
Id. (citation omitted). A substantial change in 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., ¶24 (citation omitted).

¶19 We agree with the circuit court that in this case, the facts changed
between the entry of the divorce judgment in July 2017 and the filing of
Anderson’s motion to modify physical placement in February 2020, and the
change was sufficient to justify the court’s consideration of whether to modify
physical placement. First, it is undisputed that Lindquist changed jobs after the
divorce judgment was entered, and that her new position required less travel. The
original physical placement schedule set forth in the MSA was designed to
accommodate Lindquist’s work-related travel and therefore resulted in an
inconsistent placement schedule that did not always follow a set pattern.
Moreover, the MSA required the parties to confer and agree upon a new placement
schedule every year. The court could reasonably conclude that because Lindquist
was no longer required to travel as frequently for work, the unorthodox physical

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placement schedule that the parties originally agreed upon was no longer
necessary, and a more regular schedule could be adopted that would provide
greater consistency for the parties’ children.

¶20 Second, Anderson testified that at the time the parties entered into
the MSA, and during the year after the divorce, Lindquist allowed him to exercise
additional physical placement of the children during times when she was traveling
for work. As a result, Anderson testified that he actually had physical placement
of the children close to fifty percent of the time during the year after the divorce.
He further testified, however, that after Lindquist moved to Minnesota, she
stopped offering to let him take the children while she traveled. Lindquist
disputed Anderson’s assertion that his placement during the school year was ever
close to fifty percent. Nevertheless, she conceded that she had previously allowed
Anderson to exercise additional placement during periods when she was traveling,
and that Anderson had not received any such additional placement during 2019
and 2020. The fact that Anderson was receiving at least some additional
placement time when the judgment of divorce was entered—beyond that allocated
to him by the MSA—but was no longer receiving that additional time in 2020
further supports a conclusion that a substantial change in circumstances occurred.

¶21 Third, it is undisputed that Lindquist moved from Menomonie to
Minnesota in 2018. Despite Lindquist’s move, the parties agreed that the children
would continue attending school in Menomonie, which is approximately fifty-five
miles from Lindquist’s current home. Thus, following Lindquist’s move, for the
two-thirds of the school year during which Lindquist had physical placement, the
children were required to travel approximately 110 miles per day to and from
school. The circuit court could reasonably conclude that this increased travel time

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was a hardship for the children and therefore warranted revisiting the issue of
physical placement.

¶22 Lindquist argues, for several reasons, that the facts discussed above
are insufficient to constitute a substantial change in circumstances. For instance,
she correctly notes that a change in “economic circumstances” does not qualify as
a substantial change in circumstances for purposes of modifying physical
placement. See WIS. STAT. § 767.451(1)(b)3. She therefore suggests that a
“change in jobs” cannot constitute a substantial change in circumstances.
However, neither the circuit court nor this court has concluded that Lindquist’s
change in jobs gave rise to a substantial change in circumstances because it altered
Lindquist’s economic circumstances. Instead, we have concluded that Lindquist’s
change in employment gave rise to a substantial change in circumstances because
it affected the amount of time that Lindquist spent traveling for work, which in
turn affected the parties’ ability to implement a more consistent placement
schedule. As such, our decision is not inconsistent with § 767.451(1)(b)3.

¶23 Lindquist also argues that her change in employment did not warrant
a modification of physical placement that reduced her placement time because her
decreased work travel has actually made her more available to care for the
children, not less. In a similar vein, Lindquist argues that Anderson’s work
schedule has not changed since the time of divorce, in that he continues to work
long hours on weekdays and is therefore less available to care for the children and
help them with their school work. Lindquist emphasizes that during the
COVID-19 pandemic, Anderson’s work schedule made it impossible for him to
help the children with their remote learning during his placement time, and that
task instead fell to Anderson’s girlfriend. Lindquist further asserts that the
unequal allocation of school-year physical placement in the MSA was based on

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Lindquist’s “work flexibility, the need for a stable home environment during the
school year and [Lindquist’s] concern with academics.” She contends that those
circumstances have not changed since the parties signed the MSA.

¶24 The circumstances that Lindquist cites do not negate our conclusion
that a substantial change in circumstances occurred for the reasons explained
above. Again, the record shows that because Lindquist is now traveling less for
work, the inconsistent and unorthodox physical placement schedule that the parties
agreed to in the MSA is no longer necessary. The record also shows that
Anderson is now receiving fewer additional placement days than he did at the time
of the divorce. Finally, the record shows that Lindquist’s move to Minnesota has
resulted in increased travel time for the children during Lindquist’s school-year
placement. Taken together, these facts are sufficient to constitute a substantial
change in circumstances. The fact that other circumstances have not changed—
specifically, Anderson’s work schedule and Lindquist’s involvement in the
children’s academics—does not compel a conclusion that a substantial change in
circumstances has not occurred. Furthermore, while Lindquist’s increased
availability to care for the children due to her change in employment was a factor
that the circuit court could consider in determining whether a modification of
physical placement was in the children’s best interest, it does not affect whether
the factors set forth above constitute a substantial change in circumstances.

¶25 Lindquist also contends the fact that she no longer gives Anderson
the first opportunity to take the children when she is unavailable to exercise
physical placement does not constitute a substantial change in circumstances
because the MSA does not contain a right-of-first-refusal provision and Anderson
never asked for the inclusion of such a provision. Lindquist also notes it is
undisputed that Anderson has always received the amount of placement to which

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he is entitled under the MSA. Be that as it may, Anderson expressly testified—
and Lindquist does not dispute—that at the time the parties signed the MSA and
during the year after the divorce judgment was entered, Anderson received at least
some additional placement time with the children during times when Lindquist
traveled for work. It is also undisputed that since Lindquist’s move to Minnesota,
Anderson no longer receives any additional placement time. Thus, regardless of
whether Anderson was entitled to additional placement time under the MSA, the
record shows that a change in circumstances has occurred with respect to his
ability to exercise such additional placement.

¶26 Lindquist also argues that because Anderson stipulated that she
could move to Minnesota and that the children would remain in school in
Menomonie, he cannot now argue that her move constitutes a substantial change
in circumstances warranting a modification of physical placement. We disagree.
Lindquist does not cite any legal authority in support of the proposition that
Anderson’s stipulation to Lindquist’s move now prevents him from arguing that
the move, in conjunction with other factors, has given rise to a substantial change
in circumstances. We need not address arguments that are unsupported by
references to legal authority. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992).

¶27 Lindquist further argues that although the parties stipulated in the
MSA that “the parenting time schedule may change from year to year,” they did
not stipulate that the “amount of time each parent is allocated” would change as a
result of that yearly review. This argument misses the mark. The circuit court did
not modify physical placement based on the yearly-review provision in the MSA.
Rather, the court determined that a modification of physical placement was
warranted under WIS. STAT. § 767.451(1)(b)1. because a substantial change in

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circumstances had occurred and modification was in the children’s best interest.
Nothing in the MSA prevented the court from modifying physical placement on
the grounds set forth in the statute. As explained above, we conclude the court
properly determined that a substantial change in circumstances had occurred,
justifying the court’s consideration of whether to modify physical placement.3 See
Shulka, 358 Wis. 2d 639, ¶24.

III. Best interest of the children

¶28 Finally, Lindquist argues that even if the circuit court properly
concluded that a substantial change in circumstances had occurred since the
July 2017 divorce judgment, the court erroneously exercised its discretion by
determining that Anderson’s proposed modification of physical placement was in
the children’s best interest.4 In particular, Lindquist argues the court failed to
apply the rebuttable presumption in WIS. STAT. § 767.451(1)(b)2.b. that it would
be in the children’s best interest to continue their physical placement with the
parent with whom they resided for the greater period of time—i.e., Lindquist.

3
Anderson suggested in the circuit court that a substantial change in circumstances had
occurred because the parties were unable to agree on a yearly placement schedule, as required by
the MSA. On appeal, Lindquist cites a provision of the MSA stating that if the parties cannot
resolve a dispute pertaining to physical placement, either party may request that the matter be
referred to mediation. Lindquist then asserts that Anderson never requested mediation of any
dispute as to the development of a yearly placement schedule. Anderson’s failure to request
mediation is irrelevant, however, as our decision that a substantial change in circumstances
occurred is not based on the parties’ inability to agree to a yearly placement schedule.
4
Lindquist repeatedly uses the phrase “abuse of discretion.” Our supreme court changed
the terminology used in reviewing a circuit court’s discretionary decisions from “abuse of
discretion” to “erroneous exercise of discretion” in 1992. See State v. Plymesser, 172 Wis. 2d
583, 585 n.1, 493 N.W.2d 367 (1992).

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¶29 This argument fails because the circuit court expressly referenced
the statutory presumption during its oral ruling. Then, after considering the factors
set forth in WIS. STAT. § 767.41(5)(am), the court nevertheless concluded that it
would be in the children’s best interest to modify physical placement. The court
therefore implicitly determined that Anderson had overcome the statutory
presumption, and its failure to expressly state the same does not require reversal.
See, e.g., State v. Gary M.B., 2004 WI 33, ¶26, 270 Wis. 2d 62, 676 N.W.2d 475
(recognizing that “magic words” are not required, and that we may affirm a circuit
court’s decision where the record indicates that the court implicitly made the
required determination).

¶30 Moreover, the circuit court did not erroneously exercise its
discretion by determining that Anderson had overcome the statutory presumption
and that his requested modification of physical placement would be in the
children’s best interest. As required by WIS. STAT. § 767.451(5m)(a), the court
considered each of the relevant factors in WIS. STAT. § 767.41(5)(am) when
assessing the best interest of the children.5 First, the court considered the wishes
of the parents, see § 767.41(5)(am)1., noting that Anderson wanted increased time
with the children and a more consistent placement schedule, whereas Lindquist
“would like to keep the same amount of time that she has.”

¶31 The circuit court next considered the wishes of the children, see WIS.
STAT. § 767.41(5)(am)2., noting that both children had told the guardian ad litem

5
The legislature amended WIS. STAT. § 767.41(5)(am) in May 2021, but the new version
of the statute will not go into effect until December 1, 2021, and will first apply to physical
placement orders issued on that date. See 2021 Wis. Act 37, §§2-4, 7-8. The amended version of
the statute is therefore inapplicable to this appeal. Accordingly, like the circuit court, we refer to
the factors that existed under the 2019-20 version of the statute.

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that they wanted to have more time with their father. The court concluded it was
appropriate to give weight to the children’s wishes, given that the younger child
was eight years old and the older child would be turning ten the following day.
The court expressly rejected Lindquist’s argument that the children were “too
young to have meaningful input.”

¶32 The circuit court then considered the children’s interaction and
interrelationships with their parents and other people in the parents’ respective
households. See WIS. STAT. § 767.41(5)(am)3. The court concluded that factor
was “pretty much a draw,” as the children had good relationships with both of
their parents, with Lindquist’s husband and his children, and with Anderson’s
significant other. The court stated that both parents “bring something a little bit
different to the table,” but “that’s a positive for both parents.”

¶33 Next, the circuit court considered the amount and quality of time that
each parent had spent with the children in the past, any necessary changes to the
parents’ custodial roles, and any reasonable lifestyle changes that either parent
proposed to make in order to spend time with the children. WIS. STAT.
§ 767.41(5)(am)4. Again, the court concluded this factor did not significantly
favor either parent, as both parents had spent quality time with the children. While
the court acknowledged that Lindquist had spent significant time with the children
“in teaching and making sure that they get an education,” it expressly found that
Anderson had also spent quality time with the children “to the extent that he’s
able.” The court also noted that although Anderson’s work schedule was not as
flexible as Lindquist’s, he did have the benefit of a “predictable schedule.”

¶34 The circuit court then considered the children’s adjustment to home,
school, religion, and community. See WIS. STAT. § 767.41(5)(am)5. The court

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observed that the children had adjusted to traveling back and forth between
Lindquist’s home in Minnesota and their school in Menomonie. The court stated,
however, that it was “contemplating … the fact that we could make this just a little
bit simpler.”

¶35 The circuit court next considered the children’s ages and educational
needs. See WIS. STAT. § 767.41(5)(am)6. The court again noted that the children
were ages eight and nearly ten, respectively. The court then observed that because
the children were attending school in Menomonie but spent the majority of their
school-year placement time in Minnesota, “they don’t have the opportunity quite
as much to be involved in some extracurricular activities with the same kids they
go to school with.” The court also noted there was evidence in the record that the
current placement schedule had made it difficult for the parties’ son to be involved
in Cub Scouts in Menomonie. The court reasoned that having more predictability
in the placement schedule “may allow there to be more opportunity for some of
those extracurricular activities.”

¶36 The circuit court further observed that there was a dispute between
the parties as to whether the children’s educational needs would be better served
by remaining in public school in Menomonie or by enrolling in a private school in
Minnesota. The court noted, however, that the parties had agreed the children
would remain in school in Menomonie, and “at this point that is not going to
change.”

¶37 Turning to the mental and physical health of the parties, see WIS.
STAT. § 767.41(5)(am)7., the circuit court observed that it was not aware of any
issues related to either party’s mental or physical health, and both Anderson and
Lindquist “appear to be healthy and well-adjusted adults.” The court then

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addressed the need for regularly occurring and meaningful periods of physical
placement to provide predictability and stability for the children. See
§ 767.41(5)(am)8. The court observed that both parents had spent meaningful
time with the children in the past, but Anderson’s proposed modification of
physical placement would “bring a level of predictability and stability” that had
not existed before. The court also noted that even if it granted Anderson’s motion,
the children would still have regularly occurring and meaningful periods of
physical placement with both parents.

¶38 The circuit court also considered the parties’ communication and
cooperation with one another, and whether each party could support the other’s
relationship with the children. See WIS. STAT. § 767.41(5)(am)10.-11. The court
found that although there had been minor concerns regarding the parties’
communication and cooperation, “overall the communication has been pretty
good,” and “both parents have done really an excellent job under the
circumstances.” The court further stated that both parents had been “supportive”
of each other, that they had “worked together as well as they could under all of the
circumstances,” and that neither parent was “likely to unreasonably interfere with
the [children’s] continuing relationship with the other party.”

¶39 The circuit court determined that the remaining statutory factors
were not relevant to its decision because: (1) the availability of child care was not
an issue; (2) there was no evidence of any abuse or neglect of the children,
domestic abuse or interspousal battery, or drug or alcohol abuse; and (3) there was
no evidence that any person residing in either parent’s household had a criminal
record. See WIS. STAT. § 767.41(5)(am)9., 12.-14. The court then concluded,
based on all of the factors discussed above, that it would be in the children’s best
interest to grant the parties equal physical placement during the school year,

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pursuant to a predictable “week on, week off” schedule. The court stated the
“tipping point” for purposes of its decision was the children’s expressed desire to
spend more time with Anderson. The court also noted that it would be beneficial
to the children to “reduce the amount of travel to some extent” and to make the
placement schedule “more predictable.”

¶40 The circuit court’s extensive oral ruling shows that it considered the
relevant statutory factors and determined that the vast majority of those factors did
not strongly favor either party’s position. The court ultimately concluded,
however, that Anderson’s proposed modification of physical placement would be
in the children’s best interest based on the children’s desire to spend more time
with Anderson, the added consistency that Anderson’s proposed modification
would provide, and the decreased travel time to and from the children’s school.
The court considered the facts of record, applied the correct legal standard, and
used a logical rationale to reach its conclusion. As such, the court did not
erroneously exercise its discretion. See Culligan, 266 Wis. 2d 534, ¶7.

¶41 In arguing to the contrary, Lindquist essentially contends that the
circuit court did not give enough weight to certain factors—for instance, her
flexible work schedule and her resulting ability to spend time helping the children
with their school work—and gave too much weight to other factors—particularly,
the children’s wishes and their ability to participate in extracurricular activities.
Lindquist’s arguments, however, ignore our standard of review. “A [circuit]
court’s consideration and weighing of factors to determine what course of action is
in a child’s best interests is an exercise of discretion, and we may not substitute
our own judgment for the [circuit] court’s properly exercised discretion.” Green
v. Hahn, 2004 WI App 214, ¶27, 277 Wis. 2d 473, 689 N.W.2d 657. As such,
Lindquist’s belief that the court should have weighed various factors differently

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No. 2020AP1816

when determining whether to modify physical placement provides no basis for us
to reverse the court’s discretionary decision.

By the Court.—Order affirmed.

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

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