WisBar News: Appeals Court Upholds Order Requiring Mother to Move Back to School District:

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  • October
    31
    2014

    Appeals Court Upholds Order Requiring Mother to Move Back to School District

    Joe Forward

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    Oct. 31, 2014 – A mother must move her children back to Wisconsin and enroll them in a specific school district, according to a state appeals court decision, which agreed that Blenda Shulka did not adhere to the letter and spirit of the original placement order.

    Blenda and Martin Sikraji had two children before divorcing in 2007. Both kids have some degree of autism. At the time of divorce, the court granted joint legal custody of the kids but placed them primarily with Shulka, who got them 60 percent of the time.

    In 2011, Shulka took a job in Lake County, Illinois, and filed a motion to remove them from Lake Geneva, where both Shulka had been living.

    At the hearing, Shulka said she would move to the Lincolnshire/Deerfield area and enroll the children in one of two different schools. They had been attending the Woods School in Lake Geneva, which was about 40 minutes from their father’s home.

    The court permitted the move and reduced Sikraji’s placement time during the school year. However, Shulka didn’t move to Lincolnshire or Deerfield. She moved to Round Lake, which was closer to Wisconsin and Sikraji’s home. In addition, she enrolled the kids in a different school than what was indicated to the court in determining placement.

    Sikraji filed a motion to modify the judgment. Ultimately, the family court commissioner ordered Shulka to move back to the Wood School District in Lake Geneva and enroll the kids in one of the school there or lose primary placement of the children.

    Shulka filed for de novo review by the circuit court but then filed a motion to enroll a foreign judgment of divorce and child placement in Lake County, Illinois. Sikraji filed a motion, arguing overtrial since Sikraji was required to defend in two jurisdictions.

    The circuit court ultimately ruled that Shulka had to move to the Wood School District or lose primary placement. The circuit court also ruled that Shulka committed overtrial.

    In Shulka v. Sikraji, 2013AP2080 (Oct. 29, 2014), a three-judge panel for the District II Court of Appeals affirmed, concluding Sikraji showed a substantial change of circumstances and moving the kids back to Lake Geneva was in their best interest.

    The panel noted that schooling was an important issue because the children have special needs: “[T]here is credible evidence supporting the [circuit] court’s finding that it would be in the best interest of the children for them to attend the Wood School District schools, instead of the Illinois schools,” wrote Judge Mark Gundrum for the panel.

    The panel rejected Shulka’s claim that the circuit court acted beyond its authority in ordering Shulka to move back to the Wood School District or lose primary placement. The panel noted the enrollment in that district required the children to live there.

    “[O]rdering Shulka to immediately move back to the Wood School District and re-enroll the children there was the only clear means by which the court could accomplish its best interest goals,” Judge Gundrum explained.

    The panel also rejected Shulka’s argument that the circuit court could not limit her choice of residence, citing Groh v. Groh, 110 Wis. 2d 117, 327 N.W.2d 655 (1983).

    In Groh, the Wisconsin Supreme Court said a circuit court could not condition a mother’s custody on her moving within 50 miles of the father’s home. The mother was living in Rhinelander and the father lived in Milwaukee.

    Subsequently, the appeals court in Derleth v. Cordova, 2013 WI App 142, 352 Wis. 2d 51, 841 N.W.2d 552, said Groh is still good law with respect to a statute that limits the court’s authority over intrastate moves of less than 150 miles.

    The appeals panel said Groh and Derleth aren’t controlling. “To begin, neither Groh nor Derleth say anything about a situation where a circuit court is ordering a parent to move to Wisconsin, and Shulka does not address that issue,” Gundrum wrote.

    “More importantly, however, the facts in both Groh and Derleth were that the circuit court was making an initial decision ordering the mother to establish or residency closer to the father,” wrote Gundrum, noting that Shulka was ordered to move back because the conditions that allowed her to make the move in the first place never came true.

    The panel noted that the court was attempting to “return the children to the stable school and family environment they enjoyed” before Shulka obtained permission to move to a specific area in Illinois and enroll them in a specific school district there.

    Finally, the panel agreed that Sikraji was entitled to attorneys’ fees incurred while defending the case in Illinois, rejecting Shulka’s argument that the circuit lacked authority to award attorney fees for that case.

    The panel said the Walworth County Circuit Court had authority to award attorneys’ fees because the Illinois case was “intrinsically related.” Shulka was attempting to have the Illinois court take over jurisdiction while also seeking relief in Walworth County. The panel concluded that this was unreasonable and wasted judicial resources.




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