2005AP346 Guelig v. Guelig

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“First, the court should not have considered placement and custody issues when the father had not yet received a copy of the mother’s proposal. Our statutes, as well as due process, contemplate such an exchange. Moreover, because we conclude that a scheduling conference is not a pretrial conference, the father did not waive his right to object to his wife’s proposal when he failed to submit his own plan prior to the scheduling conference. Indeed, the father had no notice, statutory or otherwise, that the court might consider custody and placement at that time. Hence, he was entitled to his day in court. Finally, even if we assume waiver on the father’s part, the paramount concern in placement and custody decisions is the best interests of the minor child. Although the court may consider one party’s uncooperative behavior a salient factor, it must clearly articulate how the parent’s recalcitrance bears on the child’s best interests.”

Reversed and remanded for a new hearing on custody and placement.

First, the husband should have received a copy of the wife’s parenting plan.

“On the one hand, the trial court correctly observes that Wis. Stat. § 767.24(1m) only expressly requires parties to file their parenting plans with the court. The next sentence, however, greatly undermines the notion that only the court must receive a copy of a party’s parenting plan. It clearly contemplates that where a parent timely submits a plan, he or she may object to the plan submitted by the other parent. We do not see how a party can object in good faith to a plan he or she never receives.”

Second, the husband here did not waive his right to object to the wife’s parenting plan by failing to present it before the scheduling conference.

This is so because a scheduling conference is not a “pretrial conference” within the contemplation of Wis. Stat. sec. 767.24(lm). “‘Pretrial conference’ and ‘scheduling conference’ are legal terms of art that refer to different types of proceedings…. We conclude that the current statute did not intend to erase any distinction between scheduling conferences and pretrial conferences. Indeed, our supreme court just recently recognized a distinction between the two in Phelps v. Physicians Insurance of Wisconsin, Inc., 2005 WI 85, …”

Third, the husband had no notice that the court might rule on placement and custody at the scheduling conference. “Despite the fact that the scheduling conference was to take place six days after this order was filed, the order set deadlines for the filing of parenting plans and the GAL’s recommendation for weeks later. The notion that the court might address placement and custody on December 9 instead of following the timetables expressed in its December 3 order, without notifying the parties of its change in plans, defies all common sense. Thus, Timothy’s failure to appear on December 9 did not waive his rights to have his parenting plan considered and to object to his wife’s proposal….Timothy’s submission of his parenting plan complied both with statutory mandates and with the December 3 court order. A parent does not waive the right to oppose his or her spouse’s parenting plan unless that parent fails to submit a parenting plan by the pretrial conference. Here there was only a December 9 scheduling conference and a December 30 trial. There was no pretrial conference. Thus, Timothy could not have violated the statute. Moreover, Timothy filed his parenting plan on December 27, well before the January 15 date specified by court order.”

Reversed and remanded.

Recommended for publication in the official reports.

Dist II, Fond du Lac County, Nuss, J., Brown, J.

Attorneys:

For Appellant: Timothy R. Young, Oshkosh

For Respondent: William K. McKibbage, Fond du Lac