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06/27/83 MARRIAGE PENNY R. BIEL v. JOHN M. BIEL

June 27, 1983

IN RE THE MARRIAGE OF: PENNY R. BIEL, PETITIONER-APPELLANT,
v.
JOHN M. BIEL, RESPONDENT



Appeal from an order of the Circuit Court for Dodge County: Thomas W. Wells, Judge.

Gartzke, P.j., Dykman, J. and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Gartzke

A divorce action is pending between Penny and John Biel. A dispute exists regarding custody and visitation of their children. Penny Biel seeks review of an order requiring the Biels to participate in mediation and arbitration of the custody and visitation issues before a social worker. She also seeks review of the trial court's failure to appoint a guardian ad litem for the children. We conclude that the trial court cannot compel the parties to arbitrate custody or visitation and that the order to mediate was proper but not shown to have been necessary. Accordingly, we reverse the order. We do not reach the guardian ad litem issue.

1. Arbitration and Mediation

The trial court defined "mediation" as the act of a third person who interferes between two contending parties with a view to reconcile or persuade them to adjust or settle their dispute. It defined "arbitration" as the submission or determination of a disputed matter to a private unofficial person selected in a manner provided by law or agreement. The court held that it possessed authority to order mediation and arbitration under sec. 767.01, Stats., which provides in relevant part, "The circuit courts have jurisdiction of all actions affecting the family and have authority to do all acts and things necessary and proper in such actions."

The court observed that participating in conciliation and mediation can bring enlightenment and understanding to the parties, help them to execute their parental responsibilities for the benefit of their childen, facilitate divorce litigation, eliminate rancor, and save money by simplifying and clarifying issues. The court concluded that requiring conciliation and mediation is therefore necessary and proper to orderly administration of divorce actions and is within the court's power and authority. The court said it ordered mediation and arbitration in the spirit of honest conciliation.

Whether action taken by a trial court under sec. 767.01, Stats., is "proper" is a question of law. We owe no deference to the trial court on matters involving the meaning of statutes. First Nat. Leasing Corp. v. Madison, 81 Wis. 2d 205, 208, 260 N.W.2d 251, 253 (1977). We therefore independently review the court's Conclusion that arbitration and mediation of the custody and visitation issues is a proper exercise of authority under sec. 767.01.

Section 767.24(1), Stats., provides in material part that "the court shall make such provisions as it deems just and reasonable concerning the care, custody and education of the minor children of the parties." (Emphasis added.) Section 767.24(2) provides in relevant part:

In making a custody determination, the court shall consider all facts in the best interest of the child and shall not prefer one potential custodian over the other on the basis of the sex of the custodian. The court shall consider reports of appropriate professionals where admitted into evidence when custody is contested. The court shall consider the following factors in making its determination:

When statutory language is unambiguous no judicial rule of construction is permitted and we arrive at the intention of the legislature by giving the language its ordinary and accepted meaning. Milwaukee v. Lindner, 98 Wis. 2d 624, 632, 297 N.W.2d 828, 832 (1980). Section 767.24, Stats., unambiguously requires the court to exercise its discretion in light of the factors enumerated under subsec. (2) in determining custody. A court's authority to establish visitation is an integral part of its authority to award custody. Bahr v. Galonski, 80 Wis. 2d 72, 79, 257 N.W.2d 869, 872 (1977). As in determining custody, the court exercises discretion based on the best interests of the children. Weichman v. Weichman, 50 Wis. 2d 731, 734, 184 N.W.2d 882, 884 (1971). In determining visitation, the court must therefore exercise its discretion in light of the provisions of sec. 767.245. We hold that custody and visitation determinations must be made by the court and cannot be delegated by it to any other person.

When ordering arbitration of custody and visitation by a social worker, the trial court delegated its non-delegable duties. The arbitration order was not a proper exercise of authority under sec. 767.01, Stats.

Because, however, sec. 767.081, Stats., expressly provides for the kind of mediation envisioned by the trial court, its order to mediate was proper. The introductory paragraph to sec. 767.081 provides in relevant part that the family court commissioner "shall inform the parties of the availability of counseling for marriage assessment, divorce and separation and referral services offered by the family court commissioner or the department of family conciliation." That counseling is partly "to explore the possibility of reconciliation . . . and to assist the parties in planning for the needs of their minor children, if any." Subsection (1) of sec. 767.081 provides in material part, "In every action for divorce or legal separation, the family court commissioner shall require the petitioner and, if personally served within this state, the respondent to participate in the counseling which shall be provided." The needs of minor children and, consequently, how their interests would best be served by a particular custody or visitation decision, fall within the scope of sec. 767.081 counseling.

Counseling, conciliation and mediation contemplate an attempt to resolve a dispute by reaching a voluntary agreement. The trial court's mediation order required the Biels to do no more than attempt to voluntarily resolve their disputes, with the assistance of the social worker. The order was consistent with sec. 767.081, Stats., and was a proper exercise of authority under sec. 767.01.

The question remains whether the court's mediation order was "necessary" under sec. 767.01, Stats., in light of sec. 767.081. Section 767.081 provides that the family court commissioner "shall ...


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