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2004  WI  App  214
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                                      03-3311
Complete Title of Case:
IN RE THE MARRIAGE OF:
LINDA L. GREENE P/K/A LINDA L. HAHN,
PETITIONER-APPELLANT,
V.
RICHARD V. HAHN,
RESPONDENT-RESPONDENT.
Opinion Filed:                                                 October 28, 2004
Submitted on Briefs:     June 4, 2004
JUDGES:                                                        Deininger, P.J., Dykman and Higginbotham, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS:                                                     On behalf of the petitioner-appellant, the cause was submitted on the
                                                               briefs of Lisa Goldman and Robert F. Nagel of the Law Offices of Robert
                                                               Nagel, Madison.
Respondent
ATTORNEYS:                                                     On behalf of the respondent-respondent, the cause was submitted on the
brief of Mary Anne Kircher and Sabina Bosshard of Bosshard &
Associates, La Crosse.




2004  WI  App  214
COURT OF APPEALS
NOTICE
DECISION
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.
October 28, 2004
A party may file with the Supreme Court a
                                                                                       Cornelia G. Clark                                                  petition to review an adverse decision by the
                                                                                       Clerk of Court of Appeals                                          Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                          and RULE 809.62.
                                                                                                                                                          Cir. Ct. No.   92FA000398
Appeal No.                                                                             03-3311
STATE OF WISCONSIN                                                                                                                                        IN COURT OF APPEALS
IN RE THE MARRIAGE OF:
LINDA L. GREENE P/K/A LINDA L. HAHN,
PETITIONER-APPELLANT,
V.
RICHARD V. HAHN,
RESPONDENT-RESPONDENT.
APPEAL from an order of the circuit court for La Crosse County:
JOHN J. PERLICH, Judge.  Affirmed.
Before Deininger, P.J., Dykman and Higginbotham, JJ.
¶1                                                                                     DEININGER, P.J.    Linda Greene appeals an order that designated
her former husband, Richard Hahn, as “the person responsible for determining …
school enrollment” for their younger son, Spencer.   She claims that the court erred




No.   03-3311
in  granting  Richard  the  authority  to  determine  Spencer’s  place  of  school
enrollment  because  the  order  interferes with her  right,  as the  child’s primary
physical  custodian,  to  determine  Spencer’s  place  of  residence.     Linda  also
contends that the trial court erroneously exercised its discretion in modifying the
parties’ joint legal custody of Spencer under WIS. STAT.  § 767.325  (2001-02)1
because (1) the court failed to refer the parties to mediation; (2) the court did not
expressly find a substantial change in circumstances from those existing at the
time of the previous custody order; and (3) the record lacks evidentiary support for
a  conclusion  that  Spencer’s  best  interest  is  served  by his  attending  a  private
military  academy  instead  of  continuing  to  attend  a  public  high  school  in
La Crosse.    We are not persuaded by any of Linda’s claims of error, and we
therefore affirm the appealed order.
BACKGROUND
¶2                                                                                          Linda and Richard were married in 1981 and they divorced in 1990.
Their Minnesota divorce judgment awarded them “permanent joint legal custody”
of their two minor sons.   Linda, who was awarded “permanent physical custody”
of the two boys, moved to Wisconsin and Richard moved to Illinois.   At the time
of the divorce, the parties’ older son, Adam, was four years old and the younger,
Spencer, was not yet two.
¶3                                                                                          In  conjunction  with  a  motion  in                                1992  seeking  increased  child
support, Linda filed the parties’ Minnesota divorce judgment with the La Crosse
County Circuit Court.   A second post-judgment proceeding in La Crosse County
regarding support was initiated by Richard in 2000.   He also moved in 2001 to
1  All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise
noted.
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No.   03-3311
revise the judgment “so as to award him primary physical placement of the minor
children of the parties.”   No revision was ordered, however, because the parties
resolved the placement issue by agreeing “to work together to solve the issues of
concern relating to their two sons.”
¶4                                                                                      Richard again sought modification of the divorce judgment in July
2003.   He moved for a court order “allowing him to enroll both of his sons at St.
John’s  Northwestern  Military  Academy,”  which  is  located  in  Delafield,
Wisconsin, for the academic year beginning in September 2003.   The motion was
initially heard by a court commissioner, who appointed a guardian ad litem for the
now  seventeen-  and  almost  fifteen-year-old  boys.     The  guardian  ad  litem
recommended  that Adam remain in La Crosse  and  attend Logan  Senior  High
School for his senior year.   A major factor in this recommendation was Adam’s
statement to the guardian ad litem that he would leave St. John’s Academy as soon
as he turned eighteen in December.   The guardian ad litem also recommended that
Adam sign a written contract with his parents regarding his conduct, expectations
regarding his schoolwork and related items.
¶5                                                                                      As to Spencer, the guardian ad litem recommended that he enroll at
St. John’s Academy  “for the remainder of his high school years,” as Richard
requested.   This recommendation was based on the guardian ad litem’s conclusion
that Spencer’s failing grade point average as a freshman at Logan Senior High, his
use of marijuana and one or more incidents of theft, all indicated that Spencer
“was going down the  same path as Adam, poor grades and poor choices for
friends, at a faster speed than Adam.”   After hearing evidence at an unreported
hearing, the court commissioner entered an order that “it is in the best interests of
the  children  that  Richard                                                            …  be  designated  as  the  person  responsible  for
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No.   03-3311
determining  Spencer’s  school  enrollment,  and  that  Linda                            …  be  the  person
responsible for determining Adam’s school enrollment.”
¶6                                                                                       Pursuant  to  the  court  commissioner’s  order,  Richard  enrolled
Spencer at St. John’s Academy for the fall semester.   Linda requested the circuit
court to hear Richard’s motion de novo.   The court took testimony over three days
in September and early October of 2003.   In addition to both parties’ testimony,
the court heard from a substance abuse counselor, the boys’ high school principal,
and from a psychologist who had met with the boys at their mother’s request.   At
the conclusion of the testimony, the guardian ad litem informed the court that her
recommendation had not changed.   She continued to believe that enrollment at St.
John’s was in Spencer’s best interest, in that it provided structure,  “he’s doing
well, and he’s also able to avoid drugs.”
¶7                                                                                       The  court,  in  a  ruling from the  bench,  found that,  at least  with
respect to educational decision-making, “[t]he parents … rather than cooperating,
are engaging in a pitched battle that puts the two kids in the middle.”   The court
also found that both boys “are in pretty deep trouble, very deep trouble.   They’ve
already had some contact with the criminal justice system, and I suspect that
unless things change drastically, one or the other, probably both, are going to
spend some time in front of a judge.”    Although the court acknowledged that
“[p]redicting human behavior is difficult at best,” it noted that “past performance”
is often  “the best predictor.”    Accordingly, the court concluded that the older
brother’s continuing difficulties—marijuana use, legal difficulties, ineligibility for
athletics, poor academic performance—reflected poorly on Spencer’s prospects
for avoiding similar problems if he remained in La Crosse and in his present
school setting.
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No.   03-3311
¶8                                                                                        The court then concluded and ordered as follows:
It looks to me that unless something changes, Spencer is
going down the exact same path that Adam has already
started.
….
As to Spencer, there is some time, there is some
help.   We can do something.   And I am going to affirm the
order of the family court commissioner and grant to Mr.
[Hahn]  the  authority  to  determine  what  educational
program he will follow.   And if Mr. [Hahn] wants him to
go to Saint John’s, so be it.
The  trial  court  subsequently  entered  a  written  order  affirming  the  court
commissioner’s order.   Linda appeals.
ANALYSIS
¶9                                                                                        Linda appeals the circuit court’s post-judgment modification of the
custody provision in the parties’ divorce judgment.   We are thus called upon to
review a trial court’s discretionary determination, which we will not reverse unless
the court incorrectly applied the law, misinterpreted or overlooked relevant facts
or otherwise failed to reason its way to a decision that a reasonable judge could
reach.   See Keller v. Keller, 2002 WI App 161, ¶6, 256 Wis. 2d 401, 647 N.W.2d
426.   Although our overall standard of review is that applicable to a trial court’s
discretionary determination, as to any questions of law presented, our review is
de novo.   See Kerkvliet v. Kerkvliet, 166 Wis. 2d 930, 938-39, 480 N.W.2d 823
(Ct. App.  1992).    Finally, to the extent that Linda challenges any of the trial
court’s  factual  findings,  she  must  convince  us  that  the  findings  are  clearly
erroneous.   WIS. STAT. § 805.17(2).
¶10    Linda’s first and principal claim of error rests on her assertion that
the appealed order conflicts with her rights under the parties’ Minnesota divorce
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No.   03-3311
judgment.    St.  John’s  is a  residential  academy which requires its students to
remain on its campus during most school days and nights, as well as on some
weekends.   Linda points out that by granting Richard the sole right to determine
“Spencer’s school enrollment,” and thus permitting Richard to enroll Spencer at
St.  John’s,  the  appealed  order  effectively  gives  Richard  control  over  where
Spencer will reside for a major portion of the year.   This, she claims, is contrary to
the provision in the parties’ divorce judgment awarding her “permanent physical
custody” of Spencer.
¶11    Linda essentially claims that the trial court lacked authority to enter
the order it did, and she relies, in part, on a Minnesota statute.    Because the
parties’ original divorce judgment gave her sole “permanent physical custody” of
Spencer, she argues that the judgment permanently grants her the sole right to
determine “the routine daily care and control and the residence of the child.”   See
MINN. STAT. § 518.003(3)(c).   Thus, in Linda’s view, despite Richard’s status as
Spencer’s joint legal custodian, he could not be granted the right to make decisions
regarding where Spencer would reside because that would interfere with her sole
right, as Spencer’s physical custodian, to decide Spencer’s residence.
¶12    We reject Linda’s attempted reliance on a Minnesota statute and the
provisions of the parties’ original divorce judgment in this fashion.   It was Linda
who first filed the Minnesota judgment with the La Crosse County Circuit Court in
1992 and requested that court to assume jurisdiction for purposes of deciding a
post-judgment motion to increase child support.   Richard, likewise, subsequently
filed motions in La Crosse County seeking to modify the judgment’s support and
placement provisions.   Wisconsin thus became the forum for proceedings brought
by either party to enforce or modify their divorce judgment, which must be treated
and given the “same effect” as if it were a Wisconsin judgment.   See WIS. STAT.
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No.   03-3311
§ 806.24(2) (“A judgment so filed has the same effect and is subject to the same
procedures, defenses, and proceedings for reopening, vacating or staying as a
judgment of a circuit court of this state ….”); WIS. STAT. § 822.15(1) (requiring
similar treatment for a “certified copy of a custody decree of another state”).
¶13    Thus,  the  question  before  us  is  not  whether  the  appealed  order
violates the terms of the original Minnesota divorce judgment, but whether the
trial court erred in modifying those terms.   In Wisconsin terminology, the parties’
divorce judgment provided that Spencer’s primary “physical placement” was with
Linda, which means that she “has the right to have [Spencer] physically placed
with  [her] and has the right and responsibility to make, during that placement,
routine daily decisions regarding [Spencer’s] care, consistent with major decisions
made by a person having legal custody.”   WIS. STAT. § 767.001(5).   Prior to the
instant order, the parties had “joint legal custody,” which means that they shared
legal custody and “neither party’s legal custody rights are superior, except with
respect to specified decisions as set forth by the court or the parties in the final
judgment or order.”   Section 767.001(1s).
¶14    Richard’s  motion  did  not  seek  a  change  in  Spencer’s  primary
placement from Linda to him, as did his earlier modification motion filed in 2001.2
Rather, Richard sought only an order  “allowing him to enroll” Spencer at St.
John’s Academy, an action that Linda opposed.   The trial court granted Richard’s
motion  and  modified  the  parties’  judgment  by allocating  to  Richard  the  sole
decision-making authority regarding Spencer’s school enrollment.   A circuit court
2  Richard’s current motion also asked for authority to enroll Adam at St. John’s.   As we
have described, the guardian ad litem recommended that Adam remain enrolled at Logan Senior
High School in La Crosse, and the trial court so ordered.   Richard has not cross-appealed the
order as it pertains to Adam.
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No.   03-3311
is  specifically  empowered  under  WIS.  STAT.  § 767.24(6)(b)  to  make  such  an
allocation  between  joint legal custodians:  “the court may give one party sole
power to  make specified decisions, while both parties retain equal rights and
responsibilities for other decisions.”
¶15    Thus,  the  appealed  order  does  not  expressly modify the  divorce
judgment’s directive that Spencer’s primary physical placement be with Linda.
We,  of  course,  recognize  that  Spencer’s  change  in  school  enrollment  to  a
residential academy greatly impacts the amount of time that he will actually spend
in Linda’s home.   We do not, however, accept Linda’s implicit argument that a
court may never allocate sole educational decision-making authority to a parent
other than the one having primary physical placement.   Here, the precise nature
and location of the school in which Richard intended to enroll Spencer if his
motion was granted was well known to the parties, the guardian ad litem and the
court.   All were thus aware that if Richard were given the sole right to determine
Spencer’s school enrollment, Spencer would be enrolled in a residential academy
situated some three hours by car from Linda’s home in La Crosse.
¶16    We are satisfied that, to the extent the appealed order results in a
reduction in the amount of time Spencer will spend in Linda’s home, the trial court
was  aware  of  that  result  when  it  evaluated  whether  Richard’s  requested
modification  to  the  existing  joint  custody  order  would  be  in  Spencer’s  best
interest.   We conclude that, because WIS. STAT. § 767.325(1) permits a court to
modify both the legal custody and physical placement provisions of a divorce
judgment, the court may modify the terms of the parties’ joint legal custody in a
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No.   03-3311
manner that results in a change in the amount of time the child spends in the home
of the parent having primary physical placement.3
¶17    As  we  have  noted,  the  trial  court  did  not  modify  the  divorce
judgment’s provision that Spencer’s primary placement be with Linda.4   Thus, at
any times that Spencer is not required to be at St. John’s Academy, his primary
placement continues with Linda, subject to Richard’s right to  “reasonable and
liberal” periods of physical placement.   If the parties are unable to agree on a
placement schedule that takes into account Spencer’s enrollment at St. John’s,
either may request the court to establish a set schedule.   See, e.g., WIS. STAT.
§ 767.325(3).
3  We emphasize that the record before us shows that the trial court was well aware of the
school placement Richard intended for Spencer and its impact on the amount of time Spencer
would thereafter spend in Linda’s home.  We do not intend to suggest that a parent possessing the
sole right to determine a child’s school enrollment is necessarily free to exercise that right in an
unanticipated way that significantly undermines the other parent’s allocated placement time.
We note that, in response to a question from her attorney, Linda testified that she was
concerned that Richard “could decide that Spencer should go to school in Chicago or move with
him to Seattle when he moves to Seattle.”   These possibilities do not appear to have been within
the court’s contemplation when it entered the appealed order, and should either occur and a
proper showing be made under WIS. STAT. § 767.325(1)(a) or (b), the trial court may consider
whether further modifications to Spencer’s custody or placement would be in his best interest.
On the record before us, Spencer was enrolled and attending St. John’s Academy.   Our
disposition is based, as it must be, on the record as it stands in this appeal, not on what the parties
or Spencer might do thereafter.
4  Linda testified that, at the conclusion of the hearing before the court commissioner,
“everyone agreed that … the placement would stay with the mother.”   During her testimony,
Linda also asked the trial court to include a statement to that effect in its order.   Following the
trial court’s oral ruling at the conclusion of the de novo hearing, Linda’s counsel renewed the
request that the court’s order reflect that “permanent physical placement also remain with” Linda.
The court commented that it believed “that was part of the original order,” and Richard’s counsel
responded that  “[n]othing changed  [in] the judgment other than the school decision.”    The
appealed order, as well as the commissioner’s order that the court “affirmed” and “adopted,” are
silent on the topic of physical placement.   Given the foregoing statements by the parties and the
court, however, we conclude that there is no dispute that Spencer’s primary placement remains
with Linda.
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No.   03-3311
¶18    Having  concluded  that  nothing  in  the  parties’  divorce  judgment
precludes  the  trial  court  from  entering  the  order  it  did,  and  that  WIS.  STAT.
§§ 767.24(6)(b) and  767.325(1) specifically authorize a court to modify a joint
legal  custody  order  in  the  manner  the  trial  court  did  here,  we  next  consider
whether the court erroneously exercised its discretion in granting Richard sole
authority to decide Spencer’s school enrollment.   We first address Linda’s claim
that the trial court erred by failing to refer the parties to mediation, which she
claims was a fatal omission that nullifies the court’s subsequent order.
¶19    Linda is correct that, under WIS. STAT. § 767.11(5), when a party
seeks revisions to a divorce judgment that affect the legal custody or physical
placement of a child,  “the court or circuit court commissioner shall refer the
parties to the director of family court counseling services for possible mediation of
those contested issues” (emphasis added).   Moreover, the parties are required to
“attend at least one session with a mediator,” before a court “may hold a trial … or
a final hearing on legal custody or physical placement.”   Section  767.11(8)(a).
Linda also correctly points out that this was not done in this case.    Richard,
however, argues that Linda has waived the issue because she first raises it on
appeal.   We agree.
¶20    Linda had ample opportunity to cite the mediation requirement and
demand a referral for mediation, either during the proceedings before the court
commissioner or in her request for a hearing de novo, or even at some point during
the three days of hearings that followed in the circuit court.   She did not do so.
We agree with the trial court’s observation when denying Linda’s request for a
stay pending appeal that “as to the mediation issue, it’s a little late to bring it up
now after we’ve litigated the case and it’s already on the way to the Court of
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No.   03-3311
Appeals.   The issue wasn’t raised at the time of the original hearing, it’s been
waived ….”
¶21    Except in rare circumstances that are not present here, we will not
address an issue that an appellant raises for the first time on appeal, because doing
so undermines judicial economy and creates an incentive for parties to build in
error in order to have an adverse outcome in the trial court overturned on appeal.
See State v. Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727.   Had
Linda raised the mediation requirement in the trial court, the court could easily
have suspended further proceedings on Richard’s motion in order to permit a
referral for mediation.   Despite her failure to raise the issue in the trial court, she
would have us set aside the appealed order after the trial court devoted three days
to hearing testimony on Richard’s motion and after we have completed a review of
the record and the parties’ briefs on appeal.   This case aptly demonstrates why we
will generally invoke the waiver rule in order to prevent the waste of judicial
resources in both the circuit court and this one.   Linda has waived the right to raise
the mandatory mediation issue on appeal, and we do not address it further.
¶22    We next examine the requirements of WIS. STAT. § 767.325(1)(b)1.,
which creates a two-step process for a court to follow in determining whether to
substantially modify the terms of a custody or placement order entered at least two
years earlier.    First, as a threshold matter, whenever a requested modification
“would substantially alter the time a parent may spend with his or her child,” the
moving  party  must  show  that  there  has  been                                          “a  substantial  change  of
circumstances since the entry of the last order affecting legal custody or the last
order substantially affecting physical placement.”   Section 767.325(1)(b)1.b.   If
that  showing  is  made,  the  court  then  proceeds  to  consider  whether  any
modification   would   be                                                                  “in   the   best   interest   of   the   child.”   Section
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No.   03-3311
767.325(1)                                                                                 (b)1.a.; see Licary v. Licary, 168 Wis. 2d 686, 694, 484 N.W.2d 371
(Ct. App. 1992) (explaining that before modifying a custody order, a court must
find “that two conditions exist,” but where no substantial change of circumstances
is shown, the question of the child’s best interests need not be reached).   Finally,
when  considering  the  best  interest  of  the  child,  the  court  must  presume  that
continuing “the current allocation of decision making under a legal custody order”
and continuing  “the child’s physical placement with the parent with whom the
child resides for the greater period of time” are both in the best interest of the
child.  Section 767.325(1)(b)2.   Both presumptions are rebuttable, however.  Id.
¶23    Whether a party seeking to modify an existing custody order has
established a “substantial change in circumstances,” as required under WIS. STAT.
§ 767.325(1)(b)1.b., is a question of law that we decide de novo.  Harris v. Harris,
141 Wis. 2d  569,  574-75,  415 N.W.2d  586  (Ct. App.  1987).    When doing so,
however,  we  must                                                                         “give  weight  to  a  trial  court’s  decision”  because  the
determination  is                                                                          “heavily  dependent  upon  an  interpretation  and  analysis  of
underlying facts.”   Id.   Linda argues that the trial court erred by not expressly
determining whether Richard had shown a substantial change of circumstances, or
alternatively, in implicitly concluding that a substantial change of circumstances
had occurred.    We agree with Richard, however, that the trial court implicitly
concluded that circumstances had changed since the time of the parties’ original
divorce judgment awarding them joint legal custody, and that the court did not err
in so concluding on the present record.
¶24    The trial court found that Spencer and his brother were “in pretty
deep trouble” at the time Richard filed his motion because both had had “some
contact  with  the  criminal  justice  system.”    The  court  noted  that  the  present
circumstances  had  “developed  over  many,  many  years.”    At  the  time  of  the
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No.   03-3311
original divorce judgment, Spencer was not yet two years old.   At the time of the
modification hearing, he was fifteen, failing in school and using marijuana, and he
had engaged in other illegal or inappropriate behavior.   Because of the behavioral
and adjustment problems exhibited by both boys, Richard had moved two years
earlier for an order transferring their primary physical placement to him.    The
parties resolved the issue by agreeing to  “work together to solve the issues of
concern relating to their two sons,” but by the summer of  2003, they were in
disagreement over where their sons should go to school.   Finally, Spencer had
spent part of the summer attending a “leadership” camp at St. John’s.   He had
apparently  enjoyed  the  experience  and,  at  least  initially,  voiced  a  desire  to
continue there during the academic year.
¶25    We conclude that the circumstances present in the summer of 2003
were substantially different than those existing at the time of the parties’ divorce
in 1990.   At the time of the parties’ divorce, no developmental or behavioral issues
had surfaced regarding either Spencer or his brother, school enrollment was not an
issue and there was presumably no indication that the parties would not be able to
agree on major decisions affecting their children’s lives.   We recognize that the
simple fact that a child grows older does not, in and of itself, create a substantial
change in circumstances.   See Lofthus v. Lofthus,  2004 WI App  65,  ¶22,  270
Wis. 2d 515, 678 N.W.2d 393.   However, when the age change is that from infant
to adolescent; it is accompanied by a pattern of adjustment difficulties, educational
failure and harmful or illegal behavior on the part of a child; and the parties are
unable to agree on a major decision affecting the child’s life, we are satisfied that a
substantial change in circumstances has been shown.
¶26    The trial court thus properly proceeded to consider whether granting
Richard  sole  authority  to  decide  Spencer’s  school  enrollment  would  be  in
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No.   03-3311
Spencer’s  best  interest.    As  to  that  determination,  Linda  asserts  a            “complete
absence of any evidence expert or otherwise” to support the trial court’s decision.
Again we disagree.
¶27    A trial court’s consideration and weighing of factors to determine
what course of action is in a child’s best interests is an exercise of discretion, and
we may not substitute our own judgment for the trial court’s properly exercised
discretion.   See Long v. Ardestani, 2001 WI App 46, ¶48, 241 Wis. 2d 498, 624
N.W.2d 405; Zirngibl v. Zirngibl, 165 Wis. 2d 130, 135, 477 N.W.2d 637 (Ct.
App. 1991).
¶28    That Spencer’s school performance had declined markedly; that he
had been using marijuana for some time; that he had committed at least one theft;
that his pattern of behavior emulated his older brother’s; and that the parties could
not agree  on  Spencer’s school enrollment are all facts finding support in the
record.   From these facts, the trial court could reasonably infer, as it did, that
unless something changed in his life, Spencer would continue to be in  “deep
trouble.”   The court could also reasonably conclude, as it did, that a change in
Spencer’s school and peer group would be in his best interest because it would
allow him a fresh start and the opportunity to get his life on a positive track,
whereas maintaining the status quo would likely lead to Spencer’s following his
brother on a downward path.   Finally, there is nothing in the record to dispute the
trial  court’s  finding  that  St.  John’s  Academy,  Richard’s  intended  place  of
enrollment for Spencer, is anything other than  “a wonderful school” with  “an
excellent reputation, fine educational system, [that] will hopefully allow [Spencer]
to some day get into a college of his choice.”
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No.   03-3311
¶29    Thus, not only is there sufficient evidence in the record to allow the
trial  court  to  conclude  that  the  continuity  presumptions  of  WIS.  STAT.
§ 767.325(1)(b)2. had been overcome, but the court’s ruling also demonstrates that
the court considered several relevant “best interest” factors set forth in WIS. STAT.
§ 767.24(5),  as  it  was  required  to  do  under  § 767.325(5m).    Specifically,  the
court’s comments reflect that it considered Spencer’s wishes and those of his
parents; his adjustment to home, school and community; his age and educational
and  developmental  needs;  the  cooperation  and  communication  between  the
parties; and the input of appropriate professionals.   See § 767.24(5)(a), (b), (d),
(dm), (fm), and (jm).
¶30    We therefore conclude that the trial court applied the correct law and
based its decision on what it deemed to be in Spencer’s best interest.5   Moreover,
the  court  considered  the  relevant  facts  of  record  and  reasoned  its  way  to  a
conclusion  that  a  reasonable  judge  could  reach,  a  conclusion  that  we  must
therefore affirm as a proper exercise of discretion.   See Keller v. Keller, 2002 WI
App 161, ¶6, 256 Wis. 2d 401, 647 N.W.2d 426.   Finally, the court’s disposition
was also in accord with the guardian ad litem’s recommendation as to Spencer’s
best interest, and it was not contrary to the “expert testimony,” as Linda maintains.
¶31    As for the testimony that Linda cites as contradicting the trial court’s
conclusion that sending Spencer to St. John’s was in his best interest, we are not
persuaded that the testimony supports only a conclusion that sending Spencer to
5  In her reply brief, Linda argues, among other things, that the trial court’s decision to
grant Richard sole decision-making authority over Spencer’s school enrollment is “unreasonable
and plainly unfair to Linda and [her husband] who have invested the last 14 years of their lives
raising Spencer.”    This argument, of course, misses the point—the standard for the court’s
decision was Spencer’s best interest, not fairness to the parties.   The trial court recognized that
Linda would not be happy with its decision and that this was “understandable,” but it urged her to
support the change as being “what’s best for [Spencer].”
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No.   03-3311
St.  John’s  would  be  contrary  to  his  best  interest.    The  three  witnesses         (a
psychologist, a drug abuse counselor and a high school principal) were all invested
to some degree in assisting Linda in her efforts to enable Spencer to overcome his
behavioral  problems  while  continuing  to  attend  high  school  in  La Crosse.
Understandably, each testified to a belief that these efforts could be successful and
should be attempted before transferring Spencer to a residential school setting.
¶32    Although the psychologist, counselor and principal thus provided
support for Linda’s position that Spencer could be successful if he remained in
La Crosse for high school, none testified that having Spencer attend St. John’s for
his sophomore  year would be contrary to his best interest.    The psychologist
acknowledged that his recommendation in favor of  having Spencer remain at
Logan was a “generic recommendation I would give to any child who is having
academic problems” because of the preference for moving “in the direction of less
restrictive to more restrictive placements.”   He also testified that, in determining
the school “that Spencer is most likely to succeed in,” it was appropriate for the
court to consider “where he will receive the most motivation, the most structure,
the  most  after-school  support,  and  the  most  tutoring.”    The  trial  court  could
reasonably find on the present record that St. John’s would be better able to meet
these criteria than would his former school setting in La Crosse.
¶33    Similarly, Spencer’s drug abuse counselor testified that Spencer was
“a kid that can adapt” and that “change might be a good thing” for him, although
how the change was accomplished would be “the important thing.”   The counselor
also  acknowledged  that  he  had  told  Spencer’s  guardian  ad  litem  on  several
occasions that he had no “recommendation as to where it is best for [Spencer and
Adam] to go to school,” and he also testified that “I don’t know if it would be a
bad thing for [Spencer] to go to the military school.”   Finally, the principal of
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No.   03-3311
Logan High School testified that Spencer would have to repeat several classes but
could still graduate with his class, although he “could not afford another year like
the  freshman  year.”    Unlike  the  other  two  witnesses,  the  principal  was  not
specifically  asked  to  offer  an  opinion  as  to  whether  continuing  at  Logan  or
transferring to St. John’s would be better for Spencer.
¶34    In short, nothing that any of the three non-party witnesses said at the
hearing indicated that Spencer’s transfer to St. John’s would be contrary to his best
interest, and each gave at least some testimony that supports the trial court’s
conclusion that the transfer would foster Spencer’s best interest.   The trial court
specifically credited  the  testimony of  all three,  noting in  its ruling that these
witnesses were “intelligent and dedicated people” who were dedicated to “helping
kids.”    We are thus satisfied by the record that the trial court considered the
testimony of the three non-party witnesses and that the court’s conclusion is not
undermined by their testimony.
CONCLUSION
¶35    For the reasons discussed above, we affirm the appealed order.
By the Court.—Order affirmed.
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