April 12, 2010 – A court cannot modify sua sponte the physical placement order of a child under Wis. Stat. section 767.451(3), the appeals court concluded last week.
Section 767.451(3) states that "upon petition, motion or order to show cause by a party, a court may modify an order of physical placement which does not substantially alter the amount of time a parent may spend with his or her child if the court finds that the modification is in the best interest of the child."
In Stumpner v. Cutting, 2009AP94 (April 8, 2010), the appeals court ruled that under section 767.451(3), a court does not have authority to issue sua sponte an order modifying physical placement orders. That is, the court determined that "the language of the statute does not permit a court to modify a placement order in the absence of a 'petition, motion or order to show cause by a party.'" Id. at ¶ 5.
Claudia Stumpner and Charles Cutting divorced in 2004. The judgment awarded Stumpner primary physical placement of the couple's minor child. Periodic physical placement went to Cutting, who after two years filed a contempt motion involving an allegation that Stumpner's mother was interfering with the father-child relationship.
The circuit court denied Cutting's motion but issued sua sponte an order modifying the order of physical placement, which required Stumpner's mother (the child's grandmother) to be supervised by an adult other than Stumpner when visiting with the child.
The court applied a case that dealt with the language of section 767.451(1), which governs modifications to legal custody orders and orders of physical placement that would substantially alter the time a parent may spend with his or her child. Section 767.451(3), the provision at issue in Stumpner, governs modifications that do not substantially alter the amount of time a parent may spend with his or her child.
Cutting argued against reversal because Stumpner did not raise the sua sponte issue in circuit court. However, the appeals court noted that it had the authority to address unpreserved issues, and did so considering the "important parental rights at stake and the statutory requirement that any modification be in the child's best interest." Id. at ¶ 12.