FAMILY LAW: Appeals decision could alter post-judgment modification cases

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A recent Wisconsin Court of Appeals case in a mental commitment action may have significant implications for post-judgment modification cases in family law in this state.

On Nov. 19, the District III court issued its opinion in State v. Alger, No. 2013AP225. The issue was whether Wis. Stat. sec. 907.02(1), which adopted the reliability standard for expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), applied to Michael Alger’s petitions for discharge from a Wis. Stat. Ch. 980 commitment.

Sec. 907.02(1) applies to actions and special proceedings commenced on or after Feb. 1, 2011. Although Alger’s discharge petitions were filed after that date, the court of appeals held that neither petition commenced a new action.

After a commitment order is entered, the committing court retains continuing administrative authority over the commitment. Therefore, the appellate court concluded that a petition for discharge didn’t start a new lawsuit or legal process distinct from the original commitment.

Instead, a discharge petition is merely a continuation of the existing lawsuit that began when the petition for commitment was filed. Consequently, sec. 907.02(1) did not apply to Alger’s discharge petitions.

The applicability to family law is whether a post-judgment matter, particularly one to modify custody or placement, constitutes a “new action.” It seems to me that similar to commitment proceedings, since the court retains continuing authority over the children, a motion to modify placement or custody is not distinct from the original divorce. Therefore, under this decision, Daubert will apply only to family law actions where the underlying divorce or paternity suit was filed on or after Feb. 1, 2011.

How much difference will this make?

In my column after the Daubert rule was adopted, I noted that the area of family law most open to scrutiny under Daubert was the use of opinion evidence by psychologists and social workers regarding placement schedules.

It’s not surprising that I have heard very few incidences of parties challenging such opinion evidence under Daubert.

After all, even though it is highly doubtful whether such opinion evidence complies with that standard, courts like having someone independent from the parties or their attorneys make such a recommendation. If for no other reason, it gives the court a place to hang their hat for what is a highly discretionary decision.

Therefore, I recommended that lawyers get familiar with laying an appropriate foundation under Daubert to get this evidence admitted.

Under State v. Alger, however, such foundation only will be necessary for the fresher cases. For the multitude of cases to modify previous orders filed prior to Feb. 1, 2011, this foundation will not be necessary and the courts can continue to hear it; the professional basis of the opinion be damned.

Thanks to attorney Anthony Menting of Stafford Rosenbaum LLP, Madison, for pointing out to me the relevance of this case.