Amber M. Franks v. Charles D. Smiley

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.
June 23, 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. 2018AP2278 Cir. Ct. No. 2009FA174

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

AMBER M. FRANKS N/K/A AMBER M. MICHELIZZI,

PETITIONER-APPELLANT,

V.

CHARLES D. SMILEY,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Douglas County:
GEORGE L. GLONEK, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 HRUZ, J. Amber Michelizzi appeals an order providing Charles
Smiley with shared legal custody and increased physical placement of their
children. She contends that Smiley failed to demonstrate a “substantial change of
No. 2018AP2278

circumstances” justifying the modifications, and that the ordered modifications
were not in the children’s best interests.

¶2 We reject Michelizzi’s arguments and conclude a substantial change
of circumstances occurred. Among other things, Smiley’s previous inability to
provide a suitable environment for his children had been remedied; he had
obtained new employment that provided regular work hours and a flexible
schedule; one of his children had developed a very close relationship with
Smiley’s stepdaughter following his marriage to his current spouse; and the
children are now of an age where they are capable of expressing—and have
expressed—a desire to spend more time with their father.

¶3 In holding that there has been a substantial change of circumstances,
we conclude that this case is not analogous to Lofthus v. Lofthus, 2004 WI App
65, 270 Wis. 2d 515, 678 N.W.2d 393. Lofthus establishes that the combination
of circumstances there—including the children’s natural aging process, the general
increased availability of one of the parents, and a change in the law from the time
of the original placement order—are insufficient to constitute a substantial change
of circumstances. Here, there has been a much greater degree of change. We also
reject Michelizzi’s argument that the circuit court improperly relied upon Smiley’s
changes in marital and financial status, contrary to WIS. STAT. § 767.451(1)(b)3.
(2017-18),1 in modifying the parties’ existing order. Finally, we deem
undeveloped Michelizzi’s argument that the modifications were not in the
children’s best interests. Accordingly, we affirm.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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BACKGROUND

¶4 Michelizzi and Smiley have never been married to each other and
have two minor daughters. In 2009, Michelizzi commenced an action seeking
child support. A guardian ad litem (GAL) was appointed for the children, and in
2013, by stipulation of the parties and with the support of the GAL, a court
commissioner ordered joint legal custody and shared physical placement of their
children. Smiley had physical placement overnight every Wednesday and
Thursday, as well as every other weekend, with a separate schedule for holidays.
The parties both lived in Superior, Wisconsin, at the time.

¶5 In April 2014, the court commissioner entered an order modifying
legal custody and placement based upon a further stipulation by the parties. At the
time, Smiley was living in a two-bedroom apartment with a twenty-seven-year-old
male roommate. The girls did not have their own space in the apartment, and he
did not believe it was a suitable environment to have substantial placement of his
children. Smiley also had two jobs that required him to work odd, inflexible
hours, including in the evenings.2 Smiley testified that in 2014 he was struggling
financially and was usually “burned out” from work, and, as a result, he did not
have the kind of quality time he wanted with his children. Smiley stipulated that
Michelizzi should have sole legal custody of the children as well as their primary
physical placement, with Smiley exercising periods of physical placement every
other weekend and at such other times as the parties mutually agreed.

2
On cross-examination in this matter, Smiley clarified that his employment at one of the
jobs had ended approximately six months before the April 2014 order was entered. Although
Michelizzi highlights this clarification throughout her briefs, we do not consider the total number
of jobs Smiley was working at that time to be a fact material to our analysis.

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¶6 Shortly thereafter, Smiley left Superior for Minnesota, where he
lived with a girlfriend until May of 2015, when he moved to Danbury, Wisconsin.
He exercised all of his placement with the children until August of 2015, when
Michelizzi began allowing him to have the children only for a portion of the day
on Saturdays. In October 2015, Smiley moved back to Superior and resided with a
friend.3 Smiley then moved into an apartment in January 2016, and he and
Michelizzi agreed to resume the placement schedule reflected in the April 2014
order. Michelizzi in the meantime had married, had two children with her
husband, and had relocated to Proctor, Minnesota.

¶7 Smiley obtained stable employment as a tire technician, and in
September 2016, he purchased a three-bedroom home in Superior on a land
contract. The home was purchased from the mother of his then-girlfriend. Smiley
married his girlfriend in 2018. As a result of the marriage, Smiley has one
stepdaughter, who is the same age as his youngest biological daughter. In contrast
to his 2014 work schedule, Smiley testified that his work schedule as of 2018 was
close to “banker’s hours” and was flexible so that he could take off during the day
and make up hours on the weekends or by working longer shifts.

¶8 Smiley filed a motion to modify legal custody and physical
placement on January 26, 2018.4 At that point, the parties’ daughters were ages
nine and six, respectively. Smiley asserted there had been a substantial change of
circumstances since the April 2014 order, and he requested joint legal custody as

3
Smiley filed a motion to modify legal custody in September 2015. That motion was
dismissed by stipulation of the parties.
4
Smiley also sought to modify child support based on the anticipated placement
schedule. Michelizzi has not raised any issue regarding child support on appeal.

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well as equal amounts of shared physical placement. The court commissioner
entered a temporary order and, after mediation failed, set the matter for a hearing.
The commissioner appointed a GAL, who agreed that a substantial change in
circumstances had occurred and noted that, although the children were “somewhat
conflicted about their situation,” they desired to spend more time with their father.
The GAL ultimately recommended joint legal custody and increasing the amount
of placement time with Smiley.

¶9 Following the hearing, the court commissioner ordered that the
parties share joint legal custody of their children. The commissioner also
increased the children’s placement with Smiley, ordering that he have placement
each week between Wednesday evening and Friday morning, with the parties
alternating weekends. The commissioner found a substantial change in
circumstances had occurred since the April 2014 order’s entry—namely, the new
stability in Smiley’s life as a result of his work, financial situation, marriage, and
living arrangements. The commissioner also found that joint legal custody and
increased placement time with Smiley were in the children’s best interests.

¶10 Michelizzi sought a de novo hearing before the circuit court. The
court conducted a two-day evidentiary hearing, at the conclusion of which the
court heard closing arguments. Michelizzi asserted that the case was analogous to
Lofthus, in which this court determined there had not been a substantial change in
the parties’ circumstances. See Lofthus, 270 Wis. 2d 515, ¶¶15-28. Smiley, by
contrast, asserted that the totality of the circumstances recognized by the court
commissioner in this case evidenced a “plethora of changes.”

¶11 The circuit court concluded that the “accumulation of all these
significant changes certainly constitutes a substantial change in circumstances.”

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The court specifically noted the parties’ subsequent marriages and their “close
geographic proximity.” The court rejected Michelizzi’s argument that continuing
the stipulated custody and placement arrangement promoted stability, observing
that Smiley’s circumstances were substantially different at the time and he should
not be punished for his choices years ago if he now wished to be a more active
parent. The court found the changes ordered by the court commissioner to be in
the children’s best interests, and it entered an order largely approving those
changes.5 Michelizzi now appeals.6

DISCUSSION

¶12 Generally, a circuit court may modify orders concerning a child’s
legal custody and placement after two years have elapsed if the modification
is: (1) in the best interest of the child; and (2) there has been a substantial change
of circumstances since the entry of the last order. WIS. STAT. § 767.451(1)(b)1.
There are rebuttable presumptions that it is in the child’s best interest to continue
the current allocation of decision making under a legal custody order and to
continue the child’s physical placement with the parent with whom the child
resides for the greater period of time. Sec. 767.451(1)(b)2.

¶13 Here, Michelizzi challenges the circuit court’s conclusions that there
has been a substantial change in circumstances and that modifications of the

5
The circuit court deviated from the court commissioner’s decision in ordering that
Michelizzi would have sole legal custody of the children regarding the choice of which schools to
attend.
6
The GAL notified this court that he would not be participating in the appeal. He stated
his position was articulated in the submissions to the court commissioner and circuit court, and he
believed that any decision by this court would not materially affect the children’s best interests.

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children’s legal custody and placement were in their best interests. As to whether
a substantial change in circumstances has occurred, Michelizzi renews her
argument that this case is controlled by Lofthus. As to the children’s best
interests, she argues the court improperly adopted some of the court
commissioner’s findings of fact despite her having rebutted them during the
de novo hearing. We reject both arguments.

I. Substantial Change of Circumstances

¶14 A substantial change of circumstances requires a showing that the
facts on which the prior order was based differ from the present facts, and that
difference is enough to justify a modification of the prior order. Shulka v. Sikraji,
2014 WI App 113, ¶24, 358 Wis. 2d 639, 856 N.W.2d 617. Of particular
relevance to this case, “[a] change in the economic circumstances or marital status
of either party is not sufficient” to establish a substantial change of circumstances.
WIS. STAT. § 767.451(1)(b)3.

¶15 Whether the party seeking to modify the existing legal custody or
placement order has established a substantial change of circumstances is a matter
of law we review de novo. Shulka, 358 Wis. 2d 639, ¶25. Although we conduct
our review independent of the circuit court, we give some weight to its decision
because the determination of a substantial change of circumstances is heavily
dependent on the analysis of the underlying facts. Id. The court’s findings of fact
regarding the circumstances at the time of the last order and the circumstances at
the time of the new motion for modification will not be overturned unless they are
clearly erroneous. Lofthus, 270 Wis. 2d 515, ¶17.

¶16 Michelizzi principally contends that the circumstances here are
indistinguishable from those in Lofthus, which she views as setting a “floor” for

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what constitutes a substantial change of circumstances. In Lofthus, the divorced
parties’ child placement was modified numerous times. Id., ¶¶2-3.
Approximately three and one-half years after the last placement modification, Paul
Lofthus sought to have equal placement with his children, which the circuit court
rejected. Id., ¶¶4, 7. We agreed with the circuit court that Paul had failed to
establish a substantial change of circumstances. Id., ¶¶22-28.

¶17 Paul had identified seven circumstances that he asserted collectively
demonstrated a substantial change of circumstances:

(1) the children are older; (2) he lives closer to them; (3) he
is now self-employed and can be available more often;
(4) he is available to transport the children daily to school;
(5) his children have a new half-sister from Paul’s
remarriage and that visitation would be beneficial to the
children and the half-sister; (6) his son was struggling in
school; and (7) a change in the law from the time of the
original order requires the court to award equal placement
when both parents are fit.

Id., ¶18 (footnotes omitted). We rejected the notion that these asserted changes
were sufficient, specifically observing that the natural aging process of a child is
not a substantial change, the proximity of Paul’s residence to his children’s had
changed in a de minimis amount, Paul’s employment status was not “currently
relevant,” and the fact that Paul could transport his children to school did not
appear significant. Id., ¶¶22-25. We further observed that the circuit court’s
findings of fact contradicted the notion that Paul’s son was struggling
academically, and we noted that Paul had failed to tie any negative academic
performance to the placement schedule. Id., ¶27. Finally, we restated the general
rules that placement may not be modified based on changed marital circumstances
or changes in the law. Id., ¶¶26, 28.

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¶18 In contrast to Lofthus, and as the circuit court recognized, there are
numerous changes in this case that rise to the level of a substantial change of
circumstances. To be sure, there are some similarities between this case and
Lofthus; the children are older, and Smiley has married and gained a stepchild,
whom he testified was so close to one of his daughters that “they might as well be
twins.” But in addition to these facts, Smiley’s life and work circumstances have
materially changed, and in a manner that directly improves his ability to exercise
meaningful custody and placement. Whereas he was previously living in a small
apartment with a male roommate, while struggling financially and working odd
hours, he now has a home with space for his children, the hours of his employment
are typical daytime hours and otherwise flexible, and he has achieved greater
financial stability.

¶19 Michelizzi argues that most of these considerations are “linked” to
Smiley’s economic circumstances and marital status, and therefore should be
excluded from the “substantial change in circumstances” calculus according to
WIS. STAT. § 767.451(1)(b)3. For example, Michelizzi asserts Smiley only moved
back to Superior because of his relationship with his current wife, and the couple
only achieved “non-apartment housing” because of Smiley’s mother-in-law, who
apparently sold them the house. She also appears to consider the changes to
Smiley’s work hours as part of his “economic circumstances,” and she criticizes
him for failing to offer testimony from his employer verifying his newfound
flexibility.

¶20 When WIS. STAT. § 767.451(1)(b)3. is interpreted in the broadest
sense, as Michelizzi appears to advocate, most factors bearing upon the proper
placement for a child can be tied in some fashion to “economic circumstances” or
“marital status.” But in its use of the word “sufficient,” it seems apparent the

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statute is meant to preclude modification of legal custody or placement based
solely on the fact that a party has married or divorced or finds himself or herself
better or worse off financially since the time of the original order. This limitation
does not mean that certain considerations attendant to such circumstances—such
as the amount of time the party is available to spend with the child, the suitability
of the party’s living arrangements, the party’s work schedule, or changes in the
parent’s relationship with the child—are prohibited in determining whether a
substantial change of circumstances has occurred.

¶21 This interpretation of the statute is buttressed by Landwehr v.
Landwehr, 2006 WI 64, 291 Wis. 2d 49, 715 N.W.2d 180. There, our supreme
court concluded the circuit court reasonably determined that there had been a
substantial change in circumstances based upon the father’s relocation closer to
the children and the fact that he had become self-employed. Id., ¶31. The
self-employment allowed the father to work more flexible hours. Id., ¶5.
Accordingly, here, we reject Michelizzi’s argument that WIS. STAT.
§ 767.451(1)(b)3.’s prohibition on “economic circumstances” constituting a
substantial change of circumstances requires courts to ignore non-monetary
aspects of employment that might bear on the question of whether facts have
sufficiently changed to warrant a modification of placement.

¶22 Moreover, the court in Landwehr observed that the circuit court
there appropriately considered factors relevant to the children’s particular
situation. Landwehr, 291 Wis. 2d 49, ¶31. Those factors included the children’s
adjustment to their home and school, their existing placement, their developmental
needs, their need for stability, and their parents’ relationship. Id. Here, there was
testimony at trial that Smiley’s relationship with his children had grown since the
entry of the April 2014 order. One of Smiley’s children in particular has a very

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strong relationship with his stepdaughter. As the circuit court noted, the children,
through the GAL, were now expressing a desire to spend more time with Smiley
that they may not have been able to express when younger, and no GAL had been
appointed during the April 2014 proceedings. By contrast, the court found
Michelizzi’s position as appearing punitive; she testified that because Smiley gave
up his right to legal custody and primary placement in April 2014, he should be
prohibited from now seeking to increase his role in his children’s lives.7

¶23 In summary, we agree with the circuit court that Smiley has
demonstrated a substantial change of circumstances. Smiley’s employment and
living situations are significantly different than they were in April 2014 when he
stipulated that Michelizzi should have sole legal custody and primary physical
placement of the children. Additionally, he has developed a relationship with his
children that had not existed for many years, if ever, and his children are now able
to articulate their desire to spend more time with him. In other words, it is not the
fact that the children naturally aged that supported Smiley’s motion; rather, it is
the fact that they have now reached a competence level at which they are better
able to express their own wishes. Even Michelizzi concedes this change. In short,
the facts of the case demonstrate a substantial change of circumstances as a matter
of law.

7
This position from Michelizzi is odd, as the evidence suggests Smiley’s voluntary
decision to reduce his own custody and placement rights in 2014 was done, at least in part, in the
interests of the children, insomuch as Smiley testified that his small apartment shared with a
twenty-seven-year-old male roommate was not “a fit and proper place to have substantial
placement with [his] children.” It seems impractical, at best, to conclude that a parent must
choose to maintain placement under such circumstances lest the parent do otherwise and then
impair his or her ability later to seek a change of legal custody and placement after a “fit and
proper” home is obtained.

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¶24 In her reply brief, Michelizzi argues the court commissioner’s
April 2014 order failed to set forth the facts upon which it was based, and
therefore Smiley was provided with an unfair opportunity to develop those facts
during the proceedings in 2018 rather than him having to do so in the context of
the 2014 order. While Michelizzi critiques the weight that the circuit court gave to
many facts, she does not challenge as clearly erroneous any of the facts as found
by the court. We do not perceive any unfairness in the procedure of this case, as
the type of “before” and “after” comparison of the facts undertaken here is
precisely what the statute contemplates occurring. If the “before” facts are
unknown or undeveloped in the prior order, the taking of testimony and other
evidence is a proper—indeed necessary—way to determine them.

II. Children’s Best Interests

¶25 Michelizzi also argues that even if there was a substantial change in
circumstances, the circuit court failed to properly determine the children’s best
interests. We review a determination of whether modifying a placement or
custody order is in a child’s best interest for an erroneous exercise of discretion.
See Keller v. Keller, 2002 WI App 161, ¶6, 256 Wis. 2d 401, 647 N.W.2d 426.
We will affirm a circuit court’s discretionary determination when it applies the
correct legal standard to the facts of record and reaches a reasonable result. Id.

¶26 Factors to consider when allocating legal custody and physical
placement are identified in WIS. STAT. § 767.41(5). Michelizzi’s brief, however,
largely omits any analysis of the circuit court’s exercise of discretion using those
factors. Instead, she accuses the court of “grabb[ing] the coattails of [the court
commissioner’s] order, and us[ing] it to support its best interest analysis for both
custody and physical placement.” She contends this approach was erroneous

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because some of the court commissioner’s findings were, in her view, “rebutted”
during the testimony offered at the de novo hearing.

¶27 This argument appears mostly to challenge Smiley’s testimony, but,
again, it does so without Michelizzi contending that any of the circuit court’s
factual findings are clearly erroneous. More specifically, the only fact Michelizzi
appears to challenge is whether Smiley was working one job or two at the time the
April 2014 order was entered. She fails to explain how Smiley’s previously
working only one job with odd hours, versus two, would result in an erroneous
determination of the children’s best interests at this time. Moreover, her argument
regarding the children’s best interests largely devolves into a version of her
argument that there has not been a substantial change of circumstances in the first
instance, which we have rejected. Her argument also appears to reiterate her
belief that Smiley should be punished for not having been more involved in his
children’s lives previously. We reject Michelizzi’s “best interests” analysis as
undeveloped and supported only by general statements, not legal argument. See
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

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