Victoria S. Krzykowski v. Matthew Bentivegna

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.
November 16, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP2089 Cir. Ct. No. 2016FA159

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE SUPPORT AND MAINTENANCE OF C.L.B.:

VICTORIA S. KRZYKOWSKI,

PETITIONER-APPELLANT,

V.

MATTHEW BENTIVEGNA,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Wood County:
TODD P. WOLF, Judge. Affirmed.

Before Kloppenburg, P.J., 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. 2022AP2089

¶1 PER CURIAM. Victoria Krzykowski appeals an order modifying
physical placement and child support. The order in question maintained primary
placement of the child with respondent Matthew Bentivegna, and reduced
Krzykowski’s placement schedule to visitation at reasonable times and on
reasonable notice. The order also modified child support accordingly.

¶2 Krzykowski argues that, because this modification order was made
less than two years after the court issued an oral custody and placement order in
August 2021, a substantial modification of placement was not permitted unless,
quoting the statute that she relies on, “the modification is necessary because the
current custodial conditions are physically or emotionally harmful to the best
interest of the child.” WIS. STAT. § 767.451(1)(a) (2021-22)1.

¶3 By its own terms, this provision applies only to modifications within
two years after “the final judgment determining legal custody or physical
placement is entered under [WIS. STAT. §] 767.41.” Here, it is not clear that the
August 2021 order was “the final judgment … under [§] 767.41,” or whether the
final judgment was instead one that the circuit court issued earlier in the case, such
as the placement order the court entered on September 5, 2017. This point is
potentially significant; if the two-year period applies only to modification of the
first order issued under § 767.41 but not to any subsequent modification orders,
then the two-year period would not apply to the court’s August 2021 order.
However, on appeal Bentivegna does not dispute that this provision applies here,

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP2089

and therefore we proceed on the assumption that it does, without deciding that it
does.

¶4 Krzykowski argues that the evidence here was insufficient to show
that the current custodial conditions were causing harm to the child. We conclude
that it was sufficient.

¶5 The circuit court did not expressly find that the current conditions
were harming the child, but such a finding is implicit in its analysis. The court
heard evidence that the child, then fifteen years old, was refusing to go to her
scheduled visitations with Krzykowski. The guardian ad litem recommended
placement be at reasonable times with reasonable notice.

¶6 As part of its decision, the court stated:

And to say the Court should force her to go there
when some of the placements looked like she locked
herself in a room and stayed there the whole time, even if I
would have a forced situation, that’s gonna be the end
result. She’s gonna go in a room and just sit there and be
upset with everyone involved, maybe crying her eyes out
and everything else, not being able to do anything.

I have in the past … not all that long ago ordered a
younger child to [go to scheduled visitations] and [the
child] refused to get out of the car … and I held that child
in contempt and had the child actually put in secure
detention for a few days here for not following the court
order. I’m not going down that road, not with this child at
this age.

….

And me just indicating to law enforcement or
someone should [forcibly transport the child to
Krzykowski’s house] is gonna absolutely accomplish
nothing. If anything, it’s gonna draw a huger wedge
between the parties than … already might exist here.

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No. 2022AP2089

¶7 We understand this discussion to be a statement by the court that the
current placement order, if enforced, was emotionally harmful to the child. On
appeal, Krzykowski does not dispute that the child was refusing to visit her. Nor
does she offer an explanation of how the current placement conditions could have
been enforced in a way that would not have been emotionally harmful to the child.
Accordingly, we are satisfied that a substantial modification of placement within
two years after the August 2021 order was permitted under WIS. STAT.
§ 767.451(1)(a), because the current conditions were emotionally harmful to the
child.

¶8 Krzykowski also argues that the circuit court erred by not timely
deciding several motions that she filed seeking enforcement of the visitation order
and a finding that Bentivegna was in contempt. She argues that such motions
should have been heard within thirty days of filing, pursuant to WIS. STAT.
§ 767.471(5)(a). As relief, she asks that we order the circuit court to hear these
motions and to consider awarding additional days of placement to her.

¶9 As we read the record, the circuit court decided these motions at the
same hearing that the change in placement was ordered. The court acknowledged
the contempt motions, stated that the court had indicated that it would decide those
once it heard evidence on physical placement, and then the court concluded that
there had “been absolutely no evidence here today that shows that [Bentivegna]
has himself been [in] willful and egregious violation of a court order.” We
understand this to be a finding that, in the terms used in WIS. STAT.
§ 767.471(5)(b), Krzykowski failed to prove that Bentivegna “intentionally and
unreasonably denied … or interfered with” her placement. Without a finding in
her favor on that point, no relief on Krzykowski’s motions was available,

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No. 2022AP2089

including an order granting additional periods of physical placement to replace
those denied or interfered with. See § 767.471(5)(b)1.a.

¶10 On appeal, Krzykowski does not appear to dispute the conclusion
that Bentivegna did not improperly deny or interfere with her placement. Instead,
she argues that she was prejudiced by the circuit court’s delay in deciding her
motions, and she suggests that the court conditioned a decision on those motions
on her payment of guardian ad litem fees. However, with the conclusion on the
motions ultimately not being in Krzykowski’s favor, we are unable to see any
sense in which this delay itself, regardless of the reason, caused her prejudice.

CONCLUSION

¶11 For the reasons stated, we affirm.

By the Court.—Order affirmed.

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

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