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COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 4, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0578-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
In re the Marriage of:
VICKI L. JOHNSON,
k/n/a VICKI AUSTAD,
Petitioner-Appellant,
v.
CHRISTOPHER T.
JOHNSON,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Polk County:
ROBERT H. RASMUSSEN, Judge.
Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Vicki (Johnson) Austad appeals an order changing
physical placement of her children to their father, Christopher Johnson.[1] Austad argues that the trial court
erroneously exercised its discretion when it changed custody based solely on
her plan to move with the children to Minnesota. She also argues that the trial court ignored the testimony of her
expert witnesses. We reject these
arguments and affirm the order.
The trial court may
modify physical placement if it is in the children's best interest. Kerkvliet v. Kerkvliet, 166
Wis.2d 930, 936, 480 N.W.2d 823, 825 (Ct. App. 1992). There is a rebuttable presumption that continuing the current
physical placement arrangement is in the best interest of the children. See § 767.327(3)(a)2a, Stats.
This presumption was created to minimize the disruption to a child's
life by discouraging repeated litigation of placement orders. The question whether to change placement is
committed to the trial court's discretion and its decision will be sustained if
the record reflects a reasoning process depending on facts of record and
conclusions based on proper legal standards.
Bohms v. Bohms, 144 Wis.2d 490, 496, 424 N.W.2d 408, 410
(1988). The findings of fact upon which
the discretionary decision is made will be sustained unless they are clearly
erroneous. See § 805.17(2),
Stats. The trial court, not the court of appeals, assesses the
credibility of the witnesses and the weight to be accorded their
testimony. Mullen v. Braatz,
179 Wis.2d 749, 756, 508 N.W.2d 446, 449 (Ct. App. 1993).
The trial court's
decision is supported by adequate evidence and reflects consideration of the
proper legal standards. The trial court
specifically went through each of the factors set out in § 767.327(5), Stats., and determined that the
children's best interest required that they stay in their community and
schools, with the same friends, and with access to their paternal grandparents
whom they were accustomed to seeing on a daily basis. The court considered and adopted the guardian ad litem's
recommendation and the children's wishes.
Austad had moved with the children four times in a ten-month period and
proposed to move them to Minnesota.
Johnson's fiancee testified that the children were upset by the move to
Minnesota and adjusted quickly when they were returned to their father's home. The children's school teachers testified to
the children's adjustments to the placement changes. This evidence is sufficient to rebut the presumption that it is
in the children's best interest to continue primary placement with their
mother.
In reaching its
decision, the trial court did not "ignore" the testimony of social
workers regarding their contacts with the children. The trial court personally examined several of these witnesses
and carefully considered their testimony.
Its failure to comment on their testimony is not synonymous with
ignoring it. We will not infer from the
trial court's failure to mention the testimony that it also failed to
consider it. See Chernetski
v. American Family Mut. Ins. Co., 183 Wis.2d 68, 80, 515 N.W.2d 283,
288 (Ct. App. 1994). One of the social
workers had no contact with the children after Austad's decision to move to
Minnesota. One of the social workers
spent only one month counseling the children, centered on Austad's relationship
with the children and admitted that she did not attempt to make any contact
with Johnson. Although the trial court
criticized Johnson for some of his behavior after the divorce, it properly
chose to give less weight to the social worker's testimony than to the other
factors that showed the move would be traumatic to the children and that a
change of physical placement would be less disruptive then moving away from the
family, friends, community and schools to which the children had become
accustomed.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.