Portage County v. D.A., 2023AP1237, 1255 & 1272, 5/9/24, District IV (one-judge decision; ineligible for publication); case activity
Although “David” presents a superficially knotty jurisdictional argument, COA ultimately holds that he has forfeited this otherwise non-meritorious legal issue.
The facts of this case are complex, but involve two interlinked court actions. “David” and “Rachel” have three children in common. (¶2). Ultimately, the parents ended up residing in two different counties–Portage and Waushara. (¶3). A divorce action was ultimately commenced in Waushara County. (Id.). While the divorce was pending, a CHIPS case was initiated in Portage County, which ultimately concluded with a dispositional order placing the children with Rachel and imposing other conditions on David’s contact with them. (¶9). Thereafter, Waushara County entered a divorce judgment which was explicitly made “subordinate to” the CHIPS orders. (¶10). Finally, the saga of litigation appeared to come to a close when the circuit court in Portage County entered an order closing the CHIPS cases which granted Rachel sole legal custody and physical placement. (¶11). Those orders resulted in a modification of the Waushara County divorce judgment. (Id.).
Seven months after the Portage County orders were entered, David sought to appeal, arguing that Portage County was without jurisdiction. (¶12).
On appeal, COA first holds that David has forfeited his appellate challenge. (¶13). Over two years have passed since the CHIPS petitions were filed and there has been significant litigation in that matter; hence, David’s jurisdictional challenge is untimely. (Id.). And, while the court is empowered to overlook forfeiture, COA is disinclined to do so in this case for three reasons: (1) “the children have already been the subject of voluminous litigation in two protracted legal actions” (2) David does not have an explanation as to why he did not raise the issue at the “outset of the CHIPS proceedings” and (3) the jurisdictional argument lacks merit. (¶15).
As to the merits, it is undisputed that the respective circuit courts “had the statutory authority to exercise concurrent jurisdiction over the custody and placement of the children.” (¶16). However, the CHIPS court has “paramount” authority and the burden is on the divorce court to avoid contradicting that court’s orders. (¶22). While these general legal principles, derived from SCOW’s decision in State ex rel. Rickli v. County Ct. for Dane County don’t seem to help David, he discerns an alleged exception to the rule. Thus, in Rickli, SCOW admonished the the CHIPS court for assuming jurisdiction, in language suggesting that a CHIPS court could erroneously exercise its discretion in assuming jurisdiction under certain circumstances. (¶24). In that case, for example, the mother deliberately violated family court orders, ignored the court’s recent adverse ruling on her request for temporary custody, and then took the children to another county where the CHIPS case was filed in the hopes of obtaining a different outcome in front of a different judge. (Id.). In other words, a CHIPS court may erroneously exercise its discretion by assuming jurisdiction when doing so would directly aid and abet such gamesmanship.
However, the extreme facts of Rickli are easily distinguishable; thus, the alleged exception identified by David is unavailing as there is no proof that Rachel went “judge-shopping”–especially when the CHIPS petition in question was filed by human services, and not Rachel. (¶26). Given David’s “speculative and essentially unsupported theory” COA therefore affirms. (¶27).
