Keith Budny v. Melissa Budny

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.
July 27, 2022
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. 2021AP82 Cir. Ct. No. 2017FA197

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN RE THE MARRIAGE OF:

KEITH BUDNY,

PETITIONER-RESPONDENT,

V.

MELISSA BUDNY,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Racine County:
FAYE M. FLANCHER, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2021AP82

¶1 PER CURIAM. Melissa Budny appeals an order in which the
circuit court declined to modify a shared placement order contingent upon Melissa
ensuring the children had no contact with her husband, Joseph Roberts. We
conclude the court did not erroneously exercise its discretion when it declined
Melissa’s proposed modification. Accordingly, we affirm.

BACKGROUND

¶2 The parties were divorced in July 2017. They stipulated to joint
legal custody of the parties’ two minor children and a 2/5 placement schedule.
Thereafter, Melissa began a relationship with her then-boyfriend, now-husband,
Joseph Roberts.1

¶3 In February 2018, Keith filed a motion seeking to revise the order to
condition Melissa’s placement on the children having no contact with Roberts.
The motion was principally based upon Roberts’s conviction history and drug use.
A guardian ad litem (GAL) appointed for the children supported the motion,
noting Roberts had an extensive drug history and was a confidential informant,
potentially endangering the children. A court commissioner agreed and entered
the requested no-contact order, which was upheld by the circuit court on review.

¶4 In June 2020, Melissa petitioned the circuit court to modify the no-
contact order based on her marriage and Roberts’s progress in treatment. The
court held an evidentiary hearing, during which both Keith and the GAL supported
continuing the no-contact condition. The court expressed concern about the lack

1
Melissa and Roberts were married approximately two weeks prior to the
December 2020 evidentiary hearing in this case.

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of evidence regarding the intervals between Roberts’s relapses, and though it
lauded Roberts’s progress in treatment, it determined it was too soon to permit him
contact with the children. The court stated it was a “very-critical time for
Mr. Roberts as he’s weaning off the Suboxone,” which was part of his treatment
regime for his addiction, and the court wanted to see how he would respond to the
absence of that “crutch” before allowing contact. The court acknowledged that the
decision was not the one that Melissa “wanted or perhaps expected,” but it stated
its decision was “in the best interests of the minor children at this time.” Melissa
now appeals.

DISCUSSION2

¶5 “We give deference to the circuit court’s decisions regarding the
modification of placement under an erroneous exercise of discretion standard of
review ….” Landwehr v. Landwehr, 2006 WI 64, ¶7, 291 Wis. 2d 49, 715
N.W.2d 180. We will affirm if the court applied the correct legal standard based
upon the facts of record and reached a reasonable result. Id.

¶6 Melissa first argues the circuit court applied the wrong legal
standard, which presents a question of law. See id., ¶8. She argues the court’s
order was contrary to Schwantes v. Schwantes, 121 Wis. 2d 607, 360 N.W.2d 69
(Ct. App. 1984), in which the court conditioned a grant of custody upon the
mother terminating her relationship with an individual. Id. at 609-10. The court
of appeals concluded this condition effectively required the mother to choose

2
Keith did not file a response brief. Accordingly, this appeal is decided based upon
briefs filed by Melissa and the GAL. Additionally, to the extent Melissa’s appellate arguments
assert the original no-contact order was entered in error, that order is not before us on appeal.

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between her constitutional right of free association and her constitutional right to
care for her children, id. at 625, and we concluded the then-operative custody
statute could not “be construed to confer upon the trial court the power to
condition an award of custody on the termination of the custodial parent’s
relationship with another in the absence of a showing that the relationship has a
significant adverse [e]ffect upon the children.” Id. at 625-26.

¶7 We agree with the GAL that Melissa has forfeited this argument by
failing to raise it before the circuit court. See State v. Holland Plastics Co., 111
Wis. 2d 497, 504, 331 N.W.2d 320 (1983) (“Generally, issues not raised or
considered by the trial court will not be considered for the first time on appeal.”).
As Melissa points out, her counsel did state at the hearing that “[a] parent usually
has the right to make the decision as to who they involve their children with unless
there’s a showing that this person is a harm or danger to the children.” That,
however, was the extent of the argument on this point; counsel did not provide any
case law or legal authority, nor did counsel argue that the placement condition
imposed in 2018 had an unconstitutional effect. To preserve an issue for appeal, a
litigant must raise it “with sufficient prominence such that the trial court
understands that it is being called upon to make a ruling.” Bishop v. City of
Burlington, 2001 WI App 154, ¶8, 246 Wis. 2d 879, 631 N.W.2d 656.3

¶8 In any event, Schwantes is easily distinguishable. The clear
constitutional problem in that case was that the condition required the mother to

3
Melissa argues forfeiture cannot be applied, but this understanding is based on a
misreading of Schwantes v. Schwantes, 121 Wis. 2d 607, 626-27, 360 N.W.2d 69 (Ct. App.
1984), in which the court rejected the father’s argument that the mother had waived her right to
challenge the condition based upon her “voluntary” transfer of custody. Nothing about those
passages in Schwantes relieves a litigant of the obligation to preserve issues for appellate review.

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terminate her intimate relationship with another individual. See, e.g., Schwantes,
121 Wis. 2d at 624. Accordingly, the condition was lacking any nexus to the
requirement that the children’s best interests guide the custody determination. Id.
Here, by contrast, the condition did not require Melissa to sever her relationship; it
required her to keep her significant other separated from the children—a man
whom the circuit court regarded as still presenting some danger to the children
based upon his criminal history and the risk for relapse, despite his having a
laudable period of sobriety.

¶9 Next, Melissa argues that the circuit court erroneously exercised its
discretion because the order declining her proposed modification violated her
constitutional right to decide as a parent who her children may associate with.
Here again, Melissa relies on an argument and authorities that were never
presented to the circuit court.

¶10 To the extent Melissa otherwise attempts to challenge the circuit
court’s exercise of discretion, we conclude there is no basis to reverse the order.
For placement decisions that do not substantially alter the amount of time a parent
may spend with his or her child, a court may modify an order if the proposed
modification is in the best interests of the child. WIS. STAT. § 767.451(3) (2019-
20).4 The same factors that guide initial placement and custody determinations
apply to proposed modifications to the order. See § 767.451(5m)(a). Those
factors include whether a parent’s significant other, anyone who will be residing
with the children, or a stepparent has a criminal record. See WIS. STAT.

4
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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§§ 767.41(5)(am)12m. and 767.451(5m)(b). A “significant problem with alcohol
or drug abuse” by a party is a factor, see § 767.41(5)(am)14., and by extension,
drug or alcohol problems by a person who will be living with and/or having
significant contact with the children can be considered under the catchall
provision, see § 767.41(5)(am)16.

¶11 Here, the circuit court ably explained the reasons why it believed it
was too soon to allow the children contact with Roberts. The court expressly
contemplated that if Roberts continued his laudable progress with treatment and
avoided any more criminal entanglements, the time would come when it would be
appropriate for him to be a part of the children’s lives. His continuing treatment,
as well as his history of risky criminal activity, reasonably gave the circuit court
pause at this juncture.

By the Court.—Order affirmed.

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

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