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In re Meister

Supreme Court of Wisconsin

April 7, 2016

In re the marriage of: Nancy M. Meister and Jay E. Meister: S.A.M., A.L.M., O.M.M. and J.E.M., minors, by their guardian ad litem, Jennifer Weber, Appellants-Petitioners,
v.
Nancy M. Meister, Respondent

Argued October 6, 2015.

Page 747

REVIEW of a decision of the Court of Appeals. (L.C. No. 2011FA335). COURT: Circuit. COUNTY: Jefferson. JUDGE: William F. Hue.

For the appellants-petitioners, there were briefs by Jennifer Weber and Zick & Weber Law Offices, LLP, Johnson Creek, and oral argument by Jennifer Weber.

For the respondent, there was a brief by Andrew R. Griggs, Neuberger, Griggs, Sweet & Smith, LLP, Watertown, and oral argument by Andrew R. Griggs.

DAVID T. PROSSER, J. REBECCA G. BRADLEY, J., did not participate. SHIRLEY S. ABRAHAMSON, J. (concurring). ANNETTE KINGSLAND ZIEGLER, J. (concurring).

OPINION

Page 748

DAVID T. PROSSER, J.

[¶1] This is a review of an unpublished decision of the court of appeals affirming a circuit court order denying a grandmother's motion for visitation rights.[1]

[¶2] The case requires us to interpret Wis. Stat. § 767.43(1) (2013-14),[2] which allows certain categories of individuals to petition for the right to visit children--usually following the dissolution of a marriage. Under the statute, a " grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child" may file a motion for visitation rights. We must determine whether the " parent-child relationship" requirement applies only to the " person" category listed in the statute, or whether it applies to a " grandparent, greatgrandparent, [and] stepparent" as well.

[¶3] The case arose after Carol Meister filed a motion for the right to visit her four grandchildren in the wake of her son Jay Meister's divorce from Nancy Meister.[3] A family court commissioner for the Jefferson County Circuit Court initially granted the motion, but the circuit court denied the motion on de novo review. Reading Wis. Stat. § 767.43(1) as requiring every petitioner

Page 749

under this subsection to demonstrate a parent-child relationship with the child, the circuit court concluded that Carol's supportive relationship with the children did not elevate her to a parent-like role in their lives.

[¶4] The Meister children appealed, and the court of appeals affirmed, citing its decision in Rogers v. Rogers, 2007 WI App 50, 300 Wis.2d 532, 731 N.W.2d 347, as controlling. In Rogers, the court of appeals stated that grandparents filing a motion under Wis. Stat. § 767.43(1) must prove " a parent-like relationship" with the child in order to secure visitation rights. Rogers, 300 Wis.2d 532, ¶ 11.

[¶5] Before this court, the Meister children argue that the court of appeals misinterpreted Wis. Stat. § 767.43(1) in Rogers. They assert that the phrase " who has maintained a relationship similar to a parent-child relationship with the child" applies only to a person other than a grandparent, greatgrandparent, or stepparent filing a motion for visitation under the subsection. Nancy counters that reading the subsection to allow courts to grant visitation rights to grandparents, greatgrandparents, and stepparents based solely on a best interest of the child determination would intrude on parents' fundamental due process rights to direct the care, custody, and control of their children.

[¶6] We conclude that Wis. Stat. § 767.43(1) does not require a grandparent, greatgrandparent, or stepparent who files a motion for visitation rights under this subsection to prove that he or she " has maintained a relationship similar to a parent-child relationship with the child." Rather, the parent-child relationship element applies only to a " person" seeking visitation rights who is not a grandparent, greatgrandparent, or stepparent. Additionally, we conclude that the legislature's decision to allow courts to grant visitation rights to grandparents, greatgrandparents, and stepparents when visitation is in the best interest of the child does not unconstitutionally infringe on parents' constitutional rights because any best interest determination must give special weight to a fit parent's decisions regarding the child's best interest. Consequently, the decision of the court of appeals is reversed.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

[¶7] Nancy and Jay Meister married in February 2002. They were divorced in Jefferson County Circuit Court in February 2013. Nancy and Jay are parents of four minor children: S.A.M., A.L.M., O.M.M., and J.E.M.

[¶8] By the terms of their divorce judgment and incorporated marital settlement agreement, Nancy and Jay agreed to joint legal custody of their children. Nancy received impasse-breaking authority and primary physical placement, while Jay received regular weekday and weekend placement. In addition to the weekly plan, Nancy and Jay agreed to an extensive placement schedule for holidays, special occasions, and vacations. The agreement included an approximately equal division of major holidays between Nancy and Jay each year; Nancy and Jay switch between various holidays in even and odd years. The plan also guaranteed a week of exclusive time with the children for each parent during the summer.

[¶9] In July 2013 the children's paternal grandmother, Carol Meister, filed a motion asking that the court establish visitation rights for her under Wis. Stat. § 767.43(1) on the basis of her grandparent relationship with the children. Her motion indicated that she decided to file the petition in response to changes Nancy had made to

Page 750

Carol's informal visitation with them.[4] Carol sought six visits per year, the right to arrange visits with Jay and Nancy using an online family scheduling portal, and the right to regular phone calls with the children.

[¶10] After holding a hearing on the motion, a family court commissioner[5] issued an order in November 2013 granting Carol's motion for visitation. The commissioner read Wis. Stat. § 767.43(1) as " requir[ing] that the grandparent have a relationship similar to a parent-child relationship" in order to secure visitation rights. However, the commissioner found that a relationship similar to a parent-child relationship existed between Carol and her grandchildren, and he granted Carol one week of placement at her home in Ohio each summer, four three-day placements in Wisconsin throughout the year, and access to the online portal to arrange her visits with Nancy and Jay.[6]

[¶11] Pursuant to Wis. Stat. § 767.17, Nancy requested that the circuit court review the commissioner's order. On review, the circuit court[7] conducted a hearing to expand the record regarding Carol's relationship with her grandchildren. Carol traveled from Ohio to Wisconsin to testify at the hearing. Appearing without an attorney, she engaged in an extended conversation with the circuit court regarding her relationship with the children.

[¶12] Over the course of her testimony, Carol described the supportive role she played in her grandchildren's lives. She began by explaining how, drawing on her own experience as a teacher, she tutored them in various subjects during a vacation to Florida in 2012 and during the children's spring break in 2013. As she continued, she mentioned that she frequently purchased food and clothing for them when they visited her in Ohio and when she visited them in Wisconsin. She emphasized that, even when she was physically distant from the children, she played an important consultative role for them and for their father, helping the children with homework by phone and providing Jay with general parenting advice. The children called her " frequently, almost daily sometimes," when staying with their father.

[¶13] Given that Carol appeared pro se and that the children's guardian ad litem--who supported the commissioner's order--was unable to attend the hearing, the circuit court helped to guide Carol's testimony by asking multiple questions about whether Carol had ever lived with the children. The questions focused on determining whether Carol's was the type of case in which " the parents [had] . . . relinquish[ed]

Page 751

their parental duties to the grandparent for some prolonged period of time and . . . the grandparent then [was] acting as the parent." After hearing Carol's testimony, the circuit court expressed concern about taking the " extraordinary step" of concluding that a parent-child relationship sufficient for visitation existed where a grandmother had such a " staggered" relationship with the grandchildren. But, reluctant to reverse the commissioner without hearing from an attorney advocating in favor of Carol's visitation motion, the circuit court decided to schedule a second hearing so that the children's guardian ad litem could attend.

[¶14] At the second hearing in January 2014, the guardian ad litem argued that, although Carol may not be a primary parent, she nevertheless had a relationship with the children similar to that of a parent who lived out of state. Arguing that " [t]he statute does not require [Carol] to elevate to the status of primary parent," the guardian ad litem observed that " if Mr. Meister relocated to the State of Ohio and had that same relationship that his mother [had] . . . with the children, he's still a parent."

[¶15] After taking the matter under consideration, the circuit court issued a May 2014 order denying Carol's motion. An accompanying memorandum decision explained that the court concluded that Carol was " ineligible for an award of grandparent visitation" because she " did not have a relationship similar to a parent-child relationship" with her grandchildren.

[¶16] The children, by their guardian ad litem, appealed the circuit court's denial of their grandmother's motion.[8] Before the court of appeals, the children argued that " the circuit court applied the wrong legal standard when it required that the grandmother, in order to be eligible to receive visitation rights, show that she had a relationship similar to a parent-child relationship with them." S.A.M. v. Meister, No. 2014AP1283, 2015 WI App 28, 361 Wis.2d 286, 862 N.W.2d 619, unpublished slip op., ¶ 12 (Wis. Ct.App. Feb. 5, 2015).

[¶17] Relying on its previous interpretation of Wis. Stat. § 767.43(1) in Rogers v. Rogers, 2007 WI App 50, 300 Wis.2d 532, 731 N.W.2d 347, the court of appeals disagreed with the children. Meister, 2007 WI App 50, unpublished slip op., ¶ 15. In Rogers, the court of appeals stated that Wis. Stat. § 767.245 (now § 767.43(1)[9]) requires, among other things, that " grandparents must have a parent-like relationship with the child" in order to qualify for visitation rights. Rogers, 300 Wis.2d 532, ¶ 11. The court of appeals in the present case treated that language from Rogers as " a clear declaration that any person seeking visitation rights under Wis. Stat. § 767.43(1) must first show that he or she has a relationship similar to a parent-child relationship in order to establish that he or she is eligible to receive visitation rights."

Page 752

Meister, 2007 WI App 50, unpublished slip op., ¶ 15 (emphasis added). " [B]ound by that declaration" from Rogers, id. (citing Cook v. Cook, 208 Wis.2d 166, 190, 560 N.W.2d 246 (1997)), the court of appeals affirmed the circuit court's conclusion that Carol had not demonstrated that she maintained a relationship with the children similar to a parent-child relationship, id., ¶ ¶ 21-22.

[¶18] The court of appeals issued its decision on February 5, 2015. Shortly afterward, on February 25, 2015, Carol passed away.[10] The children filed a petition for review on March 2, 2015, which we granted on June 12, 2015.

II. STANDARD OF REVIEW

[¶19] This case requires us to interpret Wisconsin's grandparent visitation statute. " The interpretation and application of a statute are questions of law that we review independently, 'but benefiting from the analyses of the court of appeals and the circuit court.'" Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 14, 309 Wis.2d 541, 749 N.W.2d 581 (quoting Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110).

III. DISCUSSION

A. Interpreting Wis. Stat. § 767.43(1)

[¶20] We begin our analysis by interpreting Wis. Stat. § 767.43(1). When interpreting statutes, this court consistently begins with the statutory language. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58');">2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. " Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id.

[¶21] " Context is important to meaning. So, too, is the structure of the statute in which the operative language appears." Id., ¶ 46. Consequently, " statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id. " It is certainly not inconsistent with the plain-meaning rule to consider the intrinsic context in which statutory language is used; a

Page 753

plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose." Id., ¶ 49. A review of the statutory history--meaning " previously enacted and repealed statutory provisions" --also can play a helpful role in the contextual analysis of a statute's language. Id., ¶ 52 n.9. Analysis of unambiguous statutory text does not require the court to resort to extrinsic sources of meaning such as legislative history, " although legislative history is sometimes consulted to confirm or verify a plain-meaning interpretation." Id., ¶ 51.

[¶22] Applying this interpretive methodology, we conclude that the phrase " who has maintained a relationship similar to a parent-child relationship with the child" applies only to an otherwise undefined " person" who petitions for visitation rights under Wis. Stat. § 767.43(1), not to a grandparent, greatgrandparent, or stepparent. A grandparent, greatgrandparent, or stepparent need not prove a parent-child relationship to succeed on a petition for visitation. By this we mean that " maintain[ing] a relationship similar to a parent-child relationship with the child" is not the sine qua non of a visitation petition by a grandparent, greatgrandparent, or stepparent under § 767.43(1). It is, however, the sine qua non for a petitioner who is not a grandparent, greatgrandparent, or stepparent under § 767.43(1).

[¶23] We acknowledge that subsection (1) is not wholly unambiguous. In other words, reasonable people have read it in different ways. Nonetheless, we confidently reach the conclusion stated above after reviewing the arguments pro and con, carefully examining the language of Wis. Stat. § 767.43(1), and then reviewing that language in context with surrounding language and with the statute's history. A brief review of the statute's legislative history confirms our interpretation.

[¶24] In its current form, the relevant portion of Wis. Stat. § 767.43(1) reads as follows:

[U]pon petition by a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child, the court may grant reasonable visitation rights to that person if the parents have notice of the hearing and if the ...

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