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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.
December 30, 1998
A party may file with the Supreme Court a
                                                                                       Marilyn L. Graves                               petition  to  review  an  adverse  decision  by  the
                                                                                       Clerk, Court of Appeals                         Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                       of Wisconsin                                    STATS.
No.                                                                                    98-1958
STATE OF WISCONSIN                                                                     IN COURT OF APPEALS
DISTRICT II
IN THE INTEREST OF DEREK P.,
A PERSON UNDER THE AGE OF 18:
JULIE D.,
PETITIONER-RESPONDENT,
V.
DEREK P.
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Waukesha County:
J. MAC DAVIS, Judge.  Affirmed.
BROWN, J.                                                                              Derek P. appeals from a harassment injunction
prohibiting him from having any contact with Micheal D.   Derek argues that it was
an error of law for the court to refuse to appoint a guardian ad litem for the minor
petitioner Micheal.   Derek further argues that there was insufficient evidence to
support the injunction.   Contrary to Derek’s assertion that the decision whether to




No. 98-1958
appoint a guardian ad litem is a question of law which the appellate court reviews
de novo, the decision is discretionary.    We hold that there was no misuse of
discretion in the court’s decision not to appoint a guardian ad litem for Micheal.
Furthermore,  we  conclude  that  there  was  sufficient  evidence  for  the  court  to
determine that Derek had harassed Micheal and would continue to do so, and thus
there was an adequate basis for the injunction.   We affirm.
Micheal’s mother petitioned the court for a harassment injunction
against Derek pursuant to § 813.125, STATS.   She claimed she feared for her son’s
safety due to ongoing threats of violence from Derek.    The court appointed a
guardian ad litem (GAL) for Derek, but not for Micheal, despite a request from
Derek’s attorney that the court appoint a GAL for Micheal.
Both boys testified at the injunction hearing.   They agreed that an
incident occurred in 1992, when the boys were approximately nine and ten years
old, in which Derek stepped on Micheal’s watch.   They also agreed that they were
in a physical fight at school in May 1997.   Further, they agreed that they had not
seen each other in several months.    However, their stories conflicted on who
started both fights and on whether there was other harassing conduct.   Micheal
claimed that Derek called him names, pushed him, tripped him and threatened   to
beat him up.   Derek denied such activity.
After hearing all the testimony, the court found that “petitioner has
established reasonable grounds to believe that the respondent has violated 947.013
which ... prohibits striking, shoving, kicking or otherwise subjecting a person to
physical contact or attempting or threatening to do the same.”   The court granted
an injunction prohibiting Derek from having contact with Micheal for two years,
pursuant to § 813.125, STATS.  It is from this injunction that Derek appeals.
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No. 98-1958
Derek raises two issues on appeal.   First, he contends that the court
should have appointed a GAL for Micheal because Micheal, a minor, was the real
party in interest.   Second, Derek claims that the injunction is not supported by
sufficient evidence showing that Derek harassed Micheal.
Petitions for harassment injunctions where the respondent is a minor
are within the exclusive jurisdiction of the juvenile court.   See § 48.14(10), STATS.
Thus, appointment of a GAL in such cases is governed by § 48.235, STATS.   That
section  defines  when  the  court  may,  and  when  it  must,  appoint  a  GAL.    In
subsection (1), paragraphs (b), (c) and (e) dictate when the court is required to
appoint a GAL.   See id.   None of these apply when the child is the petitioner in an
injunction proceeding.   Paragraph (d) allows the court to appoint a GAL in cases
where a minor seeks an abortion.   See id. at para. (d).   Finally, paragraph (a) states
that “[t]he court may appoint a guardian ad litem in any appropriate matter under
this chapter.”   See id. at para. (a) (emphasis added).   The 1990 Judicial Council
Note states that this  subsection  “indicates when a  guardian ad  litem is to be
appointed,  leaving  broad  discretion  to  the  court  for  such  appointments.”
(Emphasis added).    Judicial Council Note,  1990,  §  48.235.    Thus, whether to
appoint a GAL in this case was a matter within the discretion of the circuit court.
We review the circuit court’s discretionary decisions with a high
level of deference.   See Tralmer Sales & Serv., Inc. v. Erickson, 186 Wis.2d 549,
572, 521 N.W.2d 182, 191 (Ct. App. 1994).   To demonstrate a proper exercise of
discretion, the record need merely reflect a reasoned application of the appropriate
legal standards to the facts of the case.   See id. at 572-73, 521 N.W.2d at 191.
“We search the record for reasons to sustain the court’s discretionary decision.”
Id. at 573, 521 N.W.2d at 191.
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No. 98-1958
Here, the court properly exercised its discretion in deciding not to
appoint a GAL for Micheal.   A GAL’s function is to be an “advocate for the best
interests of the person for whom the appointment is made.”   Section 48.235(3)(a),
STATS.   Here, the court’s conclusion that it was appropriate to appoint a GAL for
Derek, but not for Micheal, was rational.   Derek was the person whose freedom
was at risk should an injunction be granted.   Micheal was the alleged victim.   His
interest in obtaining the injunction was adequately represented by his mother, who
brought  the  action,  and  her  attorney.     Furthermore,  whether  Micheal  was
adequately  represented  was  not  Derek’s  affair—they  were  opposing  parties.
Finally,  assuming,  arguendo,  that  a  GAL  appointed  for  Micheal  would  have
opposed the injunction, it is unlikely this would have affected the outcome.   In
granting the injunction, the court based its decision on “the circumstances, all of
the proofs taken together, and the credibility of the witnesses.”   The involvement
of a second GAL would not have changed these factors.
Derek next contends that the evidence produced was insufficient to
support the injunction.   In reviewing the sufficiency of the evidence, we may not
reverse the circuit court unless the evidence, viewed in the light most favorable to
the  outcome  of  the  proceeding,  is  so  deficient  that,  as  a  matter  of  law,  no
reasonable factfinder could have reached the same result.   See State v. Poellinger,
153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990).   When the record shows
that the evidence presented could have supported more than one inference, the
reviewing court must accept the conclusion drawn by the factfinder unless the
evidence upon which it is based is incredible as a matter of law.   See id. at 506-07,
451 N.W.2d at 757.   Finally, it is the trier of fact, not the appellate court, which
has the opportunity to hear and observe testimony.    Thus, the trier of fact is
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No. 98-1958
charged with resolving conflicts in testimony and weighing credibility.   See id. at
506, 451 N.W.2d at 757.
Here,  to  issue  the  injunction,  the  court  had  to  find                              “reasonable
grounds  to  believe  that  the  respondent  has  violated  s.                             947.013.”     Section
813.125(4)                                                                                 (a)3,  STATS.     Section   947.013  defines  harassment.     Harassment
includes physical contact with intent to harass or intimidate, or threats of such
physical contact.   See id. at subsec. (1m).   It also includes a course of conduct or
repeated commission of acts meant to harass or intimidate.   See id.   The course of
conduct must evidence a continuity of purpose.   See id. at subsec. (1)(a).
Upon review of the record, we hold that the court’s finding that
Derek  had  shoved  and  tripped  Micheal  was  supported  by  the  record.    The
testimony also supports the finding that Derek engaged in a course of conduct
meant to intimidate Micheal.   Further, Micheal’s testimony supports the inference
that Derek had threatened him and that Derek’s actions demonstrated a continuity
of purpose.   That the testimony could have supported a contrary inference does not
compel reversal.   See Poellinger, 153 Wis.2d at 507, 451 N.W.2d at 757.   We will
“accept and follow the inference drawn by the trier of fact unless the evidence on
which that inference is based is incredible as a matter of law.”   Id.   Here, the court
found Micheal to be the more credible witness and drew inferences of harassment
from his testimony.   These are exactly the types of factual determinations that the
trial court is in the best position to make.   We will not second guess its credibility
decisions.   See State v. Marty, 137 Wis.2d 352, 359, 404 N.W.2d 120, 123 (Ct.
App. 1987) (“The trial court is the ultimate arbiter of witness credibility.”).   We
thus affirm the grant of the injunction.
By the Court.—Order affirmed.
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No. 98-1958
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
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