Clayton Lennon Daniel Sims v. Esther Sims

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 15, 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. 2019AP1501 Cir. Ct. No. 2018FA681

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE MARRIAGE OF:

CLAYTON LENNON DANIEL SIMS,

PETITIONER-APPELLANT,

V.

ESTHER SIMS, N/K/A JOHNSON,

RESPONDENT-RESPONDENT.

APPEAL from a judgment of the circuit court for Milwaukee
County: MICHAEL J. DWYER, Judge. Affirmed.

Before Brash, P.J., Donald and White, 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. 2019AP1501

¶1 PER CURIAM. Clayton Lennon Daniel Sims appeals the judgment
of divorce awarding sole custody and primary placement of the child he shares
with Esther Johnson to Johnson. As framed by Sims, the sole issue on appeal is
whether Sims successfully completed a certified batterer’s intervention program
that would satisfy the requirements of WIS. STAT. § 767.41(2)(d)1.a. (2019-20).1
We affirm on a different basis: the circuit court’s remarks reflect that the
presumption against joint or sole custody was not rebutted by a preponderance of
evidence that it was in the best interest of the child for Sims to be awarded joint or
sole legal custody, pursuant to § 767.41(2)(d)1.b. See Mercado v. GE Money
Bank, 2009 WI App 73, ¶2, 318 Wis. 2d 216, 768 N.W.2d 53 (explaining that this
court can affirm a circuit court’s decision on other grounds). As such, the circuit
court properly exercised its discretion when it awarded custody of the child to
Johnson.

I. BACKGROUND

¶2 We narrow our presentation of the background information in this
case to only that which is relevant to the issue on appeal. In determining custody,
the circuit court concluded that Sims engaged in domestic abuse, which resulted in
a rebuttable presumption that an award of joint or sole legal custody to him would
be detrimental to the parties’ child and contrary to the child’s best interests. See
WIS. STAT. § 767.41(2)(d).

¶3 In its detailed oral ruling, the circuit court addressed the numerous
applicable factors and set forth its findings before concluding that Sims failed to

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

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rebut the presumption. This appeal follows. Additional background information
relevant to this court’s analysis is provided below.

II. ANALYSIS

¶4 “WISCONSIN STAT. § 767.41(2) sets forth factors the court may
consider in determining the best interest of the children for a joint or sole custody
award.” Glidewell v. Glidewell, 2015 WI App 64, ¶15, 364 Wis. 2d 588, 869
N.W.2d 796 (footnoted omitted). As relevant here, subsection (2)(d) provides:

(d) 1. … [I]f the court finds by a preponderance of
the evidence that a party has engaged in a pattern or serious
incident of interspousal battery … or domestic abuse …
there is a rebuttable presumption that it is detrimental to the
child and contrary to the best interest of the child to award
joint or sole legal custody to that party. The presumption
under this subdivision may be rebutted only by a
preponderance of evidence of all of the following:

a. The party who committed the battery or abuse
has successfully completed treatment for batterers provided
through a certified treatment program or by a certified
treatment provider and is not abusing alcohol or any other
drug.

b. It is in the best interest of the child for the party
who committed the battery or abuse to be awarded joint or
sole legal custody based on a consideration of the factors
under sub. (5) (am).

Sec. 767.41(2)(d)1.a.-b. (emphasis added).

¶5 WISCONSIN STAT. § 767.41(5)(am) provides factors that the circuit
court “shall consider” in determining custody and physical placement:

1. The wishes of the child’s parent or parents….

2. The wishes of the child….

3. The interaction and interrelationship of the child
with his or her parent or parents….

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4. The amount and quality of time that each parent
has spent with the child in the past, any necessary changes
to the parents’ custodial roles and any reasonable life-style
changes that a parent proposes to make to be able to spend
time with the child in the future.

5. The child’s adjustment to the home, school,
religion and community.

6. The age of the child and the child’s
developmental and educational needs at different ages.

7. Whether the mental or physical health of a party,
minor child, or other person living in a proposed custodial
household negatively affects the child’s intellectual,
physical, or emotional well-being.

8. The need for regularly occurring and meaningful
periods of physical placement to provide predictability and
stability for the child.

9. The availability of public or private child care
services.

10. The cooperation and communication between
the parties and whether either party unreasonably refuses to
cooperate or communicate with the other party.

11. Whether each party can support the other
party’s relationship with the child, including encouraging
and facilitating frequent and continuing contact with the
child, or whether one party is likely to unreasonably
interfere with the child’s continuing relationship with the
other party.

12. Whether there is evidence that a party engaged
in abuse … of the child….

12m. Whether any of the following has a criminal
record and whether there is evidence that any of the
following has engaged in abuse … of the child or any other
child or neglected the child or any other child:

a. A person with whom a parent of the child has a
dating relationship….

b. A person who resides, has resided, or will reside
regularly or intermittently in a proposed custodial
household.

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13. Whether there is evidence of interspousal
battery … or domestic abuse….

14. Whether either party has or had a significant
problem with alcohol or drug abuse.

15. The reports of appropriate professionals if
admitted into evidence.

16. Such other factors as the court may in each
individual case determine to be relevant.

¶6 Child custody and placement determinations are committed to the
sound discretion of the circuit court. Gould v. Gould, 116 Wis. 2d 493, 497, 342
N.W.2d 426 (1984). We will sustain a discretionary decision “if the [circuit] court
examined the relevant facts, applied a proper standard of law, and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could
reach.” Liddle v. Liddle, 140 Wis. 2d 132, 136, 410 N.W.2d 196 (Ct. App. 1987).
We will affirm the circuit court’s findings of fact unless they are clearly erroneous,
see WIS. STAT. § 805.17(2), but we independently review any questions of law.
See Clark v. Mudge, 229 Wis. 2d 44, 50, 599 N.W.2d 67 (Ct. App. 1999). “Our
task as the reviewing court is to search the record for reasons to sustain the
[circuit] court’s exercise of discretion.” Hughes v. Hughes, 223 Wis. 2d 111,
120, 588 N.W.2d 346 (Ct. App. 1998).

¶7 Even if this court sets aside the circuit court’s ruling on whether
Sims completed a certified program as required by the statute, we conclude that
the circuit court properly exercised its discretion when it awarded sole custody to
Johnson because it is clear from the circuit court’s remarks that the presumption
against joint or sole custody was not rebutted by a preponderance of evidence that
it was in the best interest of the child for Sims to be awarded joint or sole legal
custody. See WIS. STAT. § 767.41(2)(d)1.b. The circuit court went to great

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lengths to detail its consideration of the factors under § 767.41(5)(am) and its
findings that, by and large, those factors did not favor Sims.

¶8 At the outset of its ruling, the circuit court stated “[I] believe that the
controlling factor in this case is a pattern of domestic abuse perpetrated by [Sims]
really in the form not so much of physical violence, but in the—in the place of
psychological and emotional manipulation and control.”2 The circuit court then
went on to explain the applicable law.

¶9 From there, the circuit court detailed: “In this case the evidence
shows that in addition to the physical violence that had occurred, [Sims] has
engaged in repeated acts of psychological manipulation. He has misused the child
to attempt to get what he wants and to control [Johnson].” The circuit court spent
time dissecting a custody study that was prepared and noted that the author’s
analysis of the relationships was that Johnson was the primary caregiver for the
child and the author “observed solid bonding with the child.” The circuit court
relayed that while the study additionally recognized that Sims assumed full-time
caregiving responsibilities when Johnson made the “profoundly harmful” decision
to move to Las Vegas, the author nevertheless “believe[d] that [Sims] has been
willing to compromise the child’s well-being in order to have his way, to prove his
opinion that [Johnson] is an unfit mother.”

2
The trial transcripts on which the circuit court relied when making its rulings are not
included in the record on appeal. It was Sims’s responsibility to ensure the record is complete,
and we assume the missing material supports the result below. See Fiumefreddo v. McLean, 174
Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct. App. 1993) (explaining that “when an appellate record is
incomplete in connection with an issue raised by the appellant, we must assume that the missing
material supports the [circuit] court’s ruling”).

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¶10 The circuit court addressed the relationship between the parties and
highlighted incidents and exhibits demonstrating that Sims had issues controlling
his emotions. Next, the circuit court explained that “[t]here are a number of
physical incidents that are undisputed…. He hit [Johnson] in the face once while
driving; grabbed her clothes and shook her; punched and destroyed a TV …; and
he broke a trash can.”

¶11 The circuit court addressed a report by Sims of sexualized behavior
by the child, noting “it’s plain to me that he was more motivated by his bitterness
and anger at the loss of his marriage, at the—the fast relationship that [Johnson]
engaged in, and—but it’s quite clear that he was looking to gain an advantage in
the custody case; I don’t think you can escape that.” The circuit court then
addressed Sims’s “telltale” signs of manipulation.

¶12 The circuit court additionally acknowledged the concerns that it had
about choices Johnson had made. When it addressed the wishes of the child, see
WIS. STAT. § 767.41(5)(am)2., the circuit court found:

By now we know that the child’s wishes have been tainted,
and tragically she told the therapist that she wanted to live
with her friends, she didn’t want to live with either of her
parents…. Back at the time of the custody study when
Ms.—when [Johnson]’s relationship with the child was
more fresh and durable she wanted to live with her mom.

The circuit court continued: “I do find that [Johnson] is more nurturing.”

¶13 At one point, the circuit court went so far as to state: “Now I have to
say that I don’t believe either of these parents deserves this child to be primarily
placed with them…. Both of these parties have done unforgivable things that are
harmful to their child in this process.” Although the circuit court noted in passing
that if Sims had attended a certified batterer’s program, he would be getting

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primary placement, the circuit court continued, “based upon the statutory
requirement I cannot do that and I will not do that. And—so the [court]
orders: [Johnson] is going to be awarded sole custody of the child.”3

¶14 Regardless of whether Sims completed a certified treatment
program, it is clear from the circuit court’s remarks that the presumption against
joint or sole custody was not rebutted by a preponderance of evidence that it was
in the best interest of the child for Sims to be awarded joint or sole legal custody.
See WIS. STAT. § 767.41(2)(d)1.b. Both subparagraphs of (2)(d)—i.e., 1.a. and
b.—are required to rebut the presumption. We conclude that the circuit court
properly exercised its discretion when it awarded sole custody to Johnson. See
Hughes, 223 Wis. 2d at 120.

By the Court.—Judgment affirmed.

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

3
While the circuit court acknowledged that the batterer’s intervention program that Sims
attended was certified in Ozaukee and Washington counties, the court, however, went on to
describe perceived deficiencies in the trial testimony provided by the counselor:

He [i.e., the counselor] doesn’t get it. He’s a substance abuse
counselor by background…. [He] had no formal training in
domestic violence…. [T]he company that [the counselor] works
for specializes in anger management. [He] said that domestic
abuse is physical and that in this case the physical abuse was old
and outdated and that the power and control concerns are an old
way of looking at domestic violence; that’s just wrong. That is
wrong.

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