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Kartes v. Kartes7/6/2005
Before Brown, Nettesheim and Snyder, JJ.
Jane M. Kartes appeals from a judgment of divorce from Christopher H. Kartes. She challenges that portion of the judgment awarding the parties equal physical placement of their child and requiring her to make a $7500 contribution to Christopher's attorney fees based on overtrial. We affirm the placement decision, reverse the contribution award, and remand to the circuit court for further proceedings on the contribution award.
The Karteses were married in 1997. Their son was born on May 31, 2000. The action for divorce was commenced March 5, 2003. Christopher is employed as a finish carpenter. Jane runs a horse stable/farm on the property where the parties resided during the marriage. The circuit court adopted the guardian ad litem's placement recommendation and ordered equal periods of placement with the child on a "2-2-3 days" basis. Consequently, placement is with Christopher on Mondays, Tuesdays, and alternating Fridays through the weekends. The judgment provides for the child to be in day care with the current provider on the days and times that Christopher is at work except in case of illness or other emergency.
Jane's position is that equal placement of the child is wrong because it requires the child to be placed in day care for eight hours a day, three days a week, when placement is with Christopher. She asserts that she rearranged her career and made life choices so she could be an at-home mother. She argues that the circuit court erroneously applied a presumption of equal placement and that the equal placement arrangement fails to "maximize the amount of time the child may spend with each parent," as required by WIS. STAT.§ 767.24(4)(a)2. (2003-04), because it fails to recognize that the time the child spends in day care is not time spent with either parent. In short, she does not want her child to spend time in day care when she is available to care for the child.
The circuit court's placement decision is reviewed under the erroneous exercise of discretion standard. Helling v. Lambert, 2004 WI App 93, , 272 Wis. 2d 796, 681 N.W.2d 552. The determination must be based upon the facts appearing in the record and the appropriate and applicable law. Id. Under WIS. STAT.§ 767.24(4)(a)2., the circuit court "shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households." Even with this direction, placement of a minor child must be consistent with his or her best interest. See Arnold v. Arnold, 2004 WI App 62, , 270 Wis. 2d 705, 679 N.W.2d 296, review denied, 2004 WI 50, 271 Wis. 2d 112, 679 N.W.2d 547 (No. 2003AP1547), cert. denied, 125 S.Ct. 112 (2004); Wiederholt v. Fischer, 169 Wis. 2d 524, 530, 485 N.W.2d 442 (Ct. App. 1992); § 767.24(5)(am). The determination of what is in a child's best interest is a mixed question of law and fact. Wiederholt, 169 Wis. 2d at 530-31.
We first reject Jane's assertion that the circuit court applied an erroneous view of the law by adhering to a nonexistent presumption of equal placement. See Arnold, 270 Wis. 2d 705, (WIS. STAT.§ 767.24(4)(a)2. is not unconstitutional by not providing a presumption of equal placement); Keller v. Keller, 2002 WI App 161, , 256 Wis. 2d 401, 647 N.W.2d 426 (§ 767.24(4)(a)2. "is not tantamount to a presumption of equal placement"). Jane isolates just one portion of the circuit court's decision in support of her argument. She quotes the circuit court: "the law says, you know, don't cheat one pare
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