Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Custody And Placement of A. J. S.

Court of Appeals of Wisconsin, District IV

April 19, 2018

In re the custody and placement of A. J. S.:
v.
Bryan J. Schulte, Respondent-Respondent. Sara J. Scace, Petitioner-Appellant,

          APPEAL from an order of the circuit court for Green County No. 2015FA186: DUANE M. JORGENSON, Judge. Reversed.

          Before Sherman, Kloppenburg and Fitzpatrick, JJ.

          SHERMAN, J.

         ¶1 Sara J. Scace appeals from an order of the circuit court directing that the last name of Scace's child[1] be changed to Scace-Schulte. Bryan J. Schulte, who acknowledged paternity of the child, argued for the name change. Scace argues that the court lacked the statutory authority to order the child's name change and that, even if the court had the authority to change the child's name, the court erred in determining that the name change is in the best interests of the child. We agree that the circuit court lacked the authority to change the child's name under these facts and reverse the order on that basis.

         BACKGROUND

         ¶2 Scace, who was unmarried, gave birth to a child in 2014. At birth, as reflected on the birth certificate, the child was given only the mother's surname. At or near the time of birth, Schulte signed a voluntary acknowledgment of paternity form and therein asserted that he is the father of the child. Scace commenced this action to resolve disputes between the parties about custody, visitation, child support, and the surname of the child.[2] All issues were resolved by stipulation, except the issue of changing the child's surname.

         ¶3 After briefing, the circuit court determined that it had the authority to change the child's surname in this situation, reasoning:

In reviewing [Wis. Stat. ch.] 767 [(2015-16)[3] the Court observes that the subchapter (IX) of [§] 767 is entitled paternity and all provision[s] from [§§] 767.80 to 767.895 are statutory provisions addressing determinations of paternity. Additionally, [§] 767.805 states that a voluntary acknowledgment of paternity that is conclusive shall have the same effect as a judgment of paternity. Consequently, this Court concludes that the provisions of [§] 767.89 should apply to actions brought premised on such acknowledgment of paternity. Therefore, the name change provisions should and must be equally available to a child whose paternity is established by the voluntary acknowledgment or by a court ordered determination of paternity.

         The court then determined that the best interests of the child are served by the hyphenated surname and ordered the change of name. Scace appeals.

         DISCUSSION

         ¶4 "The [circuit] courts in paternity actions are limited to the authority provided in the paternity statutes." State v. R.R.R., 166 Wis.2d 306, 312, 479 N.W.2d 237 (Ct. App. 1991). The question of whether the circuit court had the authority to order the change of name in this action involves a question of statutory interpretation. "Statutory interpretation is a question of law that we review de novo." State v. Cole, 2000 WI.App. 52, ¶3, 233 Wis.2d 577, 608 N.W.2d 432.

         ¶5 Subchapter IX (Paternity) of Wis.Stat. ch. 767 (Actions Affecting the Family) contains a comprehensive procedure for the determination of paternity either through an action commenced by the filing of a petition, see Wis. Stat. § 767.80(5), or by motion in an action already commenced. See § 767.80(1). When a determination of paternity is sought by a direct action or through a motion in an already commenced action, the circuit court issues a judgment or order of paternity. See Wis. Stat. § 767.89. The specifics of what a judgment or order determining paternity must contain are set forth in § 767.89(3). These provisions concern, among other things, custody, placement and support. See § 767.89(3)(b), (c). In addition, the circuit court is specifically authorized to change the name of the child in any such judgment or order. See § 767.89(3m).[4]

         ¶6 Alternatively, and in contrast to the procedure just described, paternity can be determined by the voluntary acknowledgement of the father. Wisconsin Stat. § 767.805, which is found in the same subchapter as Wis.Stat. § 767.89, provides for the voluntary acknowledgement of paternity by filing a statement with the state registrar, which becomes a "conclusive determination" of paternity after the expiration of a period during which the paternity acknowledgement can be rescinded. See § 767.805(1). An action for custody, placement or support may be brought with respect to a child whose paternity is determined by voluntary acknowledgment. See § 767.805(3)(a). Section 767.805(1) provides that a determination of paternity based on an acknowledgement "shall be of the same effect as a judgment, of paternity." Similar to where the circuit court has issued a judgment in an action determining paternity, the contents of an order for the custody, placement or support of a child whose paternity is determined by voluntary acknowledgment is set forth by statute. See § 767.805(4).

         ¶7 This dispute in this case arises because, in contrast to the statute that governs paternity judgments through direct action, the statute that governs determinations of paternity based on acknowledgements does not authorize a circuit court to change the child's name. Nonetheless, the circuit court here concluded that it had the authority to change the child's name, pointing to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.