COURT OF APPEALS

DECISION

DATED AND FILED

October 18, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2021AP868 Cir. Ct. No. 2013FA900

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN RE THE MARRIAGE OF:

EMMALEE ANN BIEHL P/K/A EMMALEE ANN HYDE,

 PETITIONER-APPELLANT,

 V.

NATHAN DAVID HYDE,

 RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Outagamie County: 

MARK G. SCHROEDER, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, JJ.

¶1 HRUZ, J. Emmalee Biehl appeals an order increasing Nathan 

Hyde’s physical placement of the parties’ then nearly eight-year-old daughter, 
No. 2021AP868

2

which resulted in the parties having equal placement of the child.

1

 Biehl argues 

that the circuit court should not have modified placement because Hyde failed to 

establish a substantial change of circumstances since their original divorce 

judgment and because he failed to rebut the presumption that continuing the 

originally ordered periods of physical placement was in the child’s best interest.

¶2 We conclude that Hyde has established a substantial change of 

circumstances. Since the original divorce judgment, Hyde has relocated much 

closer to his daughter and has purchased his own home; he has obtained a new job 

that allows him to work exclusively from home and to set his own work schedule,

which permits him to spend more time with his daughter and reduces her need for 

childcare; he has married a woman who also works from home, and they have one 

child together; and the parties’ daughter has reached an age where she can more 

effectively express—and has expressed—a desire to spend more time with her 

father. Although some of these changes, in some way, may be related to Hyde’s 

economic circumstances and marital status or the child’s natural aging, we 

conclude that the circumstances in this case are sufficient to establish a substantial 

change of circumstances.

¶3 In addition, the circuit court did not erroneously exercise its 

discretion by determining that modification of physical placement was in the 

child’s best interest. In reaching that conclusion, the court rationally considered 

and weighed the relevant statutory factors regarding the child’s best interest and 

 

1

 Although the Honorable Mark G. Schroeder issued the written order at issue in this 

appeal, that order was pursuant to an oral ruling by the Honorable John A. Des Jardins. Other 

than the final order, Judge Des Jardins presided over the relevant proceedings in this appeal.
No. 2021AP868

3

the rebuttable presumption under WIS. STAT. § 767.451(1)(b)2.b. (2019-20),

2

that 

maintaining the status quo with respect to physical placement is in the child’s best 

interest. The court’s discussion of the presumption also does not suggest, as Biehl 

contends, that it applied an improper legal standard. Accordingly, we affirm.

3

BACKGROUND

¶4 The parties were previously married to each other and have one 

daughter, who was born in March 2013. Shortly thereafter, the parties separated 

and later obtained a divorce judgment in November 2014. The judgment awarded

the parties joint legal custody of their nearly two-year-old daughter and adopted 

the parties’ stipulation in their marital settlement agreement regarding physical 

placement. Pursuant to that stipulation, Biehl had physical placement with their 

daughter for nine out of every fourteen days and Hyde had placement on the 

remaining five days. Specifically, Hyde had overnight placement every 

Wednesday and every other weekend, while Biehl had placement on the remaining 

days.

¶5 At the time of their divorce, Hyde lived in Marinette, Wisconsin, at

his parents’ home, and Biehl lived in Pulaski, Wisconsin. Hyde was employed as 

a call center supervisor, which required him to be present in the office from 

approximately 8:00 a.m. to 5:00 p.m., Monday through Friday.

 

2

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.

3

 Biehl’s briefs violate WIS. STAT. RULE 809.19(1)(i) by repeatedly referring to the 

parties as “Appellant” and “Appellee”—i.e., party designations—instead of by each of the party’s 

names. We admonish Biehl’s counsel that future violations of the Rules of Appellate Procedure 

may result in sanctions. See WIS. STAT. RULE 809.83(2).
No. 2021AP868

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¶6 In October 2019, Hyde filed a motion to modify the divorce 

judgment to provide the parties with equal periods of physical placement of their 

daughter, who was then six years old. Hyde reasoned that such a modification was 

justified, in part, because he had remarried and obtained new employment that 

allowed him to work at home. In addition to the reasons stated in Hyde’s motion, 

Hyde later established that he had purchased and moved into a home in Green 

Bay, Wisconsin; that his wife also works from home; and that his daughter has had 

very positive interactions with his and his wife’s newborn son.

¶7 The parties agreed to the appointment of a guardian ad litem (GAL) 

and stipulated to the completion of a custody study by Family Court Services in 

Outagamie County. During that study, the parties’ daughter told the evaluator, 

Lynn Schroeder, that she wanted to spend equal time with her parents. At the 

conclusion of the custody study, Schroeder recommended that Hyde and Biehl 

have equal physical placement of their daughter.

¶8 Biehl later moved for summary judgment, arguing that Hyde’s 

remarriage, his new job, and their daughter’s age were insufficient, as a matter of 

law, to show a substantial change of circumstances since the 2014 divorce 

judgment. The circuit court denied Biehl’s motion at a hearing in December 2020, 

concluding that Hyde had established a substantial change of circumstances. 

Specifically, the court found Hyde’s move from Marinette to Green Bay and his 

new job with “flexible work hours and work-from-home status” to be substantial 

changes. The court also noted that while Hyde’s remarriage and new child were 

not substantial changes on their own, those circumstances “may increase [Hyde’s] 

availability [to] exercise additional placement.”
No. 2021AP868

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¶9 The circuit court subsequently held two hearings to determine 

whether modifying physical placement was in the child’s best interest. After 

considering the testimony at the hearings, the court concluded that equal

placement with each parent was in the best interest of the parties’ daughter. The 

court acknowledged that there was a statutory presumption in favor of maintaining 

the existing placement, but it determined that Hyde had rebutted that presumption. 

In reaching that decision, the court noted that “the largest factor here seems to be 

the child’s sincere wish that she ... spend ... equal time with each parent.” In 

addition, the court recognized that Hyde had proposed a one-day change to 

placement per week and that their daughter is “amenable to change.”

¶10 Thereafter, the circuit court issued an order granting Hyde’s motion 

and modifying the divorce judgment to provide each party with equal physical 

placement of their child. Biehl now appeals.

DISCUSSION

¶11 In general, and as relevant here, a circuit court may modify an order 

concerning a child’s physical placement after two years since the final judgment 

determining physical placement if: (1) there has been a substantial change of 

circumstances since the entry of the last order substantially affecting physical 

placement; and (2) modification is in the child’s best interest. WIS. STAT.

§ 767.451(1)(b)1. On appeal, Biehl argues that Hyde failed to establish either of 

the bases for the court to modify placement.

¶12 Before addressing the substance of Biehl’s arguments, however, we 

must first address Hyde’s argument regarding the scope of our review. Hyde 

argues that we lack jurisdiction to review the circuit court’s order concluding that 

there was a substantial change of circumstances because Biehl did not timely 
No. 2021AP868

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appeal the court’s “final determination” as to that issue. Hyde contends that such 

an order constitutes a “final order” for the purpose of filing an appeal because it 

“effectively resolved the issue at that point of the litigation.”

¶13 Hyde is wrong. The circuit court’s initial order concluding there 

was a substantial change of circumstances was not a “final order” for the purpose 

of appeal because the order did not “dispose[] of the entire matter in litigation as 

to one or more of the parties.” See WIS. STAT. § 808.03(1). In fact, the court had 

yet to address the second question necessary to resolve Hyde’s motion—namely,

whether modification was in the best interest of the parties’ daughter. See WIS.

STAT. § 767.451(1)(b)1. Thus, the court’s initial order left unresolved a 

substantive issue raised by Hyde’s motion to modify physical placement, which

was the “matter in litigation.” See § 808.03(1); Wambolt v. West Bend Mut. Ins. 

Co., 2007 WI 35, ¶33 n.10, 299 Wis. 2d 723, 728 N.W.2d 670 (“It is certainly the 

case where substantive issues remain, a document dismissing or adjudging only 

part of the action cannot constitute a final order or final judgment for purpose of 

appeal under § 808.03(1).”).

¶14 In addition, a timely appeal from a final order “brings before the 

court all prior nonfinal judgments, orders and rulings adverse to the appellant and 

favorable to the respondent made in the action or proceeding not previously 

appealed and ruled upon.” WIS. STAT. RULE 809.10(4). Hyde does not dispute 

that Biehl filed a timely appeal of the circuit court’s later order modifying physical 

placement, which was a final order. Accordingly, RULE 809.10(4) permits our 

review of the court’s order concluding there was a substantial change of 

circumstances because the order was adverse to Biehl (the appellant) and 

favorable to Hyde (the respondent) and had not been previously appealed or ruled 

upon. See id.
No. 2021AP868

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I. Substantial change of circumstances

¶15 To establish a substantial change of circumstances, the moving party 

must show that “the facts on which the prior order was based differ from the 

present facts” and that difference is enough to justify the court’s considering 

whether to modify the prior order. Shulka v. Sikraji, 2014 WI App 113, ¶24, 358 

Wis. 2d 639, 856 N.W.2d 617 (citation omitted). As relevant to this appeal, “[a] 

change in economic circumstances or marital status of either party is not 

sufficient” to establish a substantial change of circumstances. WIS. STAT.

§ 767.451(1)(b)3.

¶16 Whether a party seeking to modify an existing physical placement 

order has established a substantial change of circumstances is a question of law 

that we review de novo. Shulka, 358 Wis. 2d 639, ¶25. Although we 

independently review whether there was a substantial change of circumstances, we 

give some weight to the circuit court’s conclusion “because the determination is 

heavily dependent upon an interpretation and analysis of underlying facts.” Id. 

We will not set aside the court’s findings of fact—as to the present circumstances 

or the circumstances on which the prior order was based—unless those findings

are clearly erroneous. Lofthus v. Lofthus, 2004 WI App 65, ¶17, 270 Wis. 2d 

515, 678 N.W.2d 393; see also WIS. STAT. § 805.17(2).

¶17 In concluding that there was a substantial change of circumstances 

since the prior physical placement order, the circuit court primarily relied on our 

decision in Franks v. Smiley, No. 2018AP2278, unpublished slip op. (WI App 
No. 2021AP868

8

June 23, 2020).4 In Franks, a father had stipulated to the original order 

concerning legal custody and physical placement of his daughters. Id., ¶5. He did 

so under circumstances where he shared a two-bedroom apartment with another 

adult male, his daughters did not have their own living space in his shared 

apartment, he worked two jobs requiring him to work inflexible hours, and he

struggled financially, which impacted his ability to share quality time with his 

children. Id. When the father sought to modify that order several years later, he

established that his daughters were older and had a close relationship to his new 

stepdaughter, that he had acquired a home with space for his daughters to stay, that 

he had obtained employment with flexible hours, and that he had achieved greater 

financial stability. Id., ¶18. The GAL also reported that the daughters wanted to 

spend more time with their father. Id., ¶8. Under those facts, we concluded that 

the father had established a substantial change of circumstances. Id., ¶23.

¶18 Many of the changes noted in Franks are akin to the circumstances 

in this case. Namely, Hyde’s daughter is now older and has expressed a desire to 

spend equal time with her parents; Hyde has obtained different employment that 

allows him to work exclusively from home and to set his own work schedule; and 

Hyde has remarried and purchased a home with his wife where they are raising 

their newborn son. Additionally, Hyde has also moved from Marinette to Green 

Bay, which is considerably closer to Biehl’s residence.

¶19 Many of these changes have meaningfully improved Hyde’s ability 

to care for, and exercise physical placement of, his daughter. In particular, by 

 

4

 An unpublished opinion authored by a member of a three-judge panel and issued on or 

after July 1, 2009, may be cited for its persuasive value. WIS. STAT. RULE 809.23(3)(b).
No. 2021AP868

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working from home and having flexible work hours, Hyde has a much better 

ability now, than at the time of the divorce judgment, to respond to his daughter’s 

needs, either at school or at home, and to reduce the amount of time she spends in 

childcare. Similarly, Hyde’s relocation to Green Bay allows him to be more 

available to his daughter and reduces the amount of time she must spend traveling. 

Hyde is also able to provide a more suitable living arrangement for his daughter 

now, than he could at the time of the divorce judgment, because his wife can assist 

him in caring for his daughter and because he and his wife are also raising their 

son in the same home.

¶20 Biehl categorizes several of the aforementioned changes as changes 

in Hyde’s marital status and economic circumstances, and she contends that those 

changes are insufficient under WIS. STAT. § 767.451(1)(b)3. to establish a 

substantial change of circumstances. Biehl fails to consider our discussion in 

Franks, however, where we rejected a similar argument that § 767.451(1)(b)3. 

prevented a court from considering circumstances attendant to a change in 

economic circumstances or marital status.5 We explained that “most factors 

bearing upon the proper placement for a child can be tied in some fashion to 

‘economic circumstances’ or ‘marital status.’” Franks, No. 2018AP2278, ¶20. 

However, § 767.451(1)(b)3.’s use of the word “sufficient,” we explained,

demonstrates that the statute 

is meant to preclude modification of legal custody or 

placement based solely on the fact that a party has married 

 

5

 Indeed, Biehl never addresses Franks v. Smiley, No. 2018AP2278, unpublished slip 

op. (WI App June 23, 2020), in either of her appellate briefs. While Franks is citable only for its 

persuasive value and is not binding as precedent, see WIS. STAT. RULE 809.23(3)(b), the 

similarities of that case to this one, combined with both the circuit court’s and Hyde’s prominent 

reliance on it, caution in favor of Biehl’s addressing Franks.
No. 2021AP868

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or divorced or finds himself or herself better or worse off 

financially since the time of the original order. This 

limitation does not mean that certain considerations 

attendant to such circumstances—such as the amount of 

time the party is available to spend with the child, the 

suitability of the party’s living arrangements, the party’s 

work schedule, or changes in the parent’s relationship with 

the child—are prohibited in determining whether a 

substantial change of circumstances has occurred.

Franks, No. 2018AP2278, ¶20. Thus, § 767.451(1)(b)3. does not prohibit this 

court from considering changes attendant to Hyde’s improved economic 

circumstances and his remarriage, such as his flexible work schedule, his

increased availability to care for his daughter, and his ability to provide suitable 

living arrangements.

¶21 Biehl also argues that Hyde’s change in residence “should have been 

given little to no weight” by the circuit court. She contends that Hyde was leasing

an apartment in Green Bay at the time of the divorce judgment and stayed at his 

parents’ home in Marinette only when he had placement of the parties’ daughter. 

Biehl never argues, however, that the court’s finding regarding Hyde’s change in 

residence was clearly erroneous.

¶22 Even if Biehl had challenged the circuit court’s finding that Hyde 

lived in Marinette at the time of the divorce, we could not conclude that such a 

finding was clearly erroneous. Hyde testified at his deposition—and at a later

hearing—that he resided at his parents’ home in Marinette when he entered into 

the final stipulation for the divorce judgment. Notably, the divorce judgment also 

included an express finding that Hyde lived in Marinette. Although Hyde 

acknowledged that he and “a significant other” had leased an apartment in Green 

Bay “for a few months” and that he traveled back to Marinette to exercise 

placement with his daughter, he never testified that he was living at that apartment 
No. 2021AP868

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at the time of the parties’ divorce, nor did he retract his earlier testimony about 

living with his parents. Thus, Hyde’s original testimony about living in Marinette 

provided a sufficient basis for the court to find that he had resided in Marinette at 

the time of the divorce. The court, therefore, did not err in considering Hyde’s 

change in residence when determining whether there was a substantial change in 

circumstances.

¶23 Finally, Biehl argues that her daughter’s wishes regarding placement 

should not be considered because “the personal preference of a child is not a 

controlling consideration on the issue of custody unless the child gives substantial 

reasons why it would be against his or her best interests to award custody contrary 

to such expressed preference.” See Haugen v. Haugen, 82 Wis. 2d 411, 417, 262 

N.W.2d 769 (1978). Biehl fails to explain how this particular quote from Haugen

applies to the issue of whether a substantial change of circumstances has occurred

in this case. Regardless, Biehl’s argument is misplaced. We do not, nor did the 

circuit court, deem the personal preference of the parties’ daughter to be “a 

controlling consideration” in determining whether a substantial change of 

circumstances has occurred. Rather, her preference is one fact in a host of changes 

that, taken together, support the conclusion that there has been a substantial 

change of circumstances.

¶24 In sum, we conclude that Hyde has established a substantial change 

of circumstances. Hyde’s living arrangements and employment circumstances 

have materially changed since the divorce judgment in November 2014. See

Landwehr v. Landwehr, 2006 WI 64, ¶31, 291 Wis. 2d 49, 715 N.W.2d 180 

(concluding the circuit court had reasonably determined that there was a 

substantial change of circumstances due to the father becoming self-employed and 

moving closer to his children). Hyde has also fostered a positive relationship with 
No. 2021AP868

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his daughter, who has asked to spend equal time with her parents. See Franks,

No. 2018AP2278, ¶23 (recognizing that a child’s improved ability to express their 

own wishes might support a conclusion of a substantial change of circumstances). 

All of these changes demonstrate that Hyde is in a meaningfully better position to

care for, and exercise physical placement of, his daughter since the divorce 

judgment.

II. Best interest of the child

¶25 In determining whether the modification of a physical placement

order is in the best interest of the child, a circuit court must consider all of the facts 

relevant to the child’s best interest and the factors set forth in WIS. STAT.

§ 767.41(5)(am). As relevant to this appeal, a court must consider the child’s 

wishes; the child’s interaction and interrelationship with his or her parents and 

others; the child’s adjustment to home, school, religion and community; the age of 

the child and the child’s developmental and education needs; the need for 

regularly occurring and meaningful periods of physical placement; each party’s 

ability to support the other party’s relationship with the child; and the reports of 

appropriate professionals if admitted into evidence. Sec. 767.41(5)(am)2.-3., 5.-6., 

8., 11., 15.

¶26 In addition, there is a rebuttable presumption that “[c]ontinuing the 

child’s physical placement with the parent with whom the child resides for the 

greater period of time is in the best interest of the child.” WIS. STAT.

§ 767.451(1)(b)2.b. This presumption embodies the legislature’s recognition that 

children benefit from continuity in their physical placement. See Abbas v. 

Palmersheim, 2004 WI App 126, ¶¶24, 40, 275 Wis. 2d 311, 685 N.W.2d 546; see 

also Landwehr, 291 Wis. 2d 49, ¶34 n.13.
No. 2021AP868

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¶27 We review a circuit court’s determination regarding a child’s best 

interest for an erroneous exercise of discretion. Shulka, 358 Wis. 2d 639, ¶25. 

We will affirm the court’s determination if the court applied the correct legal 

standard to the facts of record and reached a reasonable result. Keller v. Keller, 

2002 WI App 161, ¶6, 256 Wis. 2d 401, 647 N.W.2d 426. In our review, we

search the record for reasons to sustain the court’s exercise of discretion. See id.

¶28 Biehl argues that the circuit court applied an improper legal standard 

by failing “to give proper weight and effect” to the rebuttable presumption set 

forth in WIS. STAT. § 767.451(1)(b)2.b. Specifically, Biehl interprets several of 

the court’s comments as “weakening the presumption” and lowering Hyde’s 

burden of proof. Biehl argues that WIS. STAT. § 903.01 governs “the weight” of 

the presumption in § 767.451(1)(b)2.b.

¶29 WISCONSIN STAT. § 903.01 provides:

Except as provided by statute, a presumption recognized at 

common law or created by statute, including statutory 

provisions that certain basic facts are prima facie evidence 

of other facts, imposes on the party relying on the 

presumption the burden of proving the basic facts, but once 

the basic facts are found to exist the presumption imposes 

on the party against whom it is directed the burden of 

proving that the nonexistence of the presumed fact is more 

probable than its existence.

Our supreme court has recognized that § 903.01 creates “a uniform quantum of 

proof” for “[a]ll presumptions at common law and all statutory presumptions 

which do not express a quantum of proof.” Kruse v. Horlamus Indus., Inc., 130 

Wis. 2d 357, 366, 387 N.W.2d 64 (1986). Where a statutory presumption does not 

express a quantum of proof, § 903.01 imposes the civil standard of proof, which is 

equivalent to “the greater weight of the credible evidence,” see Kruse, 130 Wis. 2d 
No. 2021AP868

14

at 366, and the “preponderance of the evidence” standards, see Marquez v. 

Mercedes-Benz USA, LLC, 2012 WI 57, ¶37, 341 Wis. 2d 119, 815 N.W.2d 314.

¶30 We agree with Biehl that WIS. STAT. § 903.01 is instructive of the 

proof required to rebut the presumption in WIS. STAT. § 767.451(1)(b)2.b. because 

that presumption lacks an express standard of proof.6 Thus, to rebut the 

presumption in § 767.451(1)(b)2.b., the party seeking modification of physical 

placement must prove that “the nonexistence of the presumed fact”—i.e., the 

child’s best interest is served by continuing the existing placement—“is more 

probable than its existence.” See § 903.01. Put differently, the party seeking 

modification must prove, by a preponderance of the evidence, that continuing the 

existing placement is not in the child’s best interest.7

¶31 Although we agree that WIS. STAT. § 903.01 is instructive of the 

standard of proof required here, we do not believe, as Biehl argues, that the circuit 

court weakened the presumption or lowered Hyde’s burden of proof. Biehl takes 

particular issue with the court’s statements that the “presumption should not be 

merely taken to make changes difficult” and that “put[ting] a whole lot of weight 

 

6

 Biehl does not advance any argument that WIS. STAT. § 767.451(1)(b)2.b. imposes an 

even higher standard of proof than the standard set forth in WIS. STAT. § 903.01. We therefore do 

not address or consider whether the “clear and convincing evidence” standard of proof should 

apply to the presumption in § 767.451(1)(b)2.b.

7

 Importantly, because a circuit court must determine whether modification is in the best

interest of the child, see WIS. STAT. § 767.451(1)(b)1.a., the party seeking to rebut the 

presumption in § 767.451(1)(b)2.b. is not required to show that the existing placement is 

inadequate or that the child is struggling. Rather, the party seeking modification could rebut the 

presumption by persuading the court that the proposed modification (or some other modification) 

better serves the child’s interests than the existing placement. Such an interpretation does not 

render the presumption superfluous because the presumption establishes who bears the burden of 

proof and reminds the court about the general preference in favor of maintaining continuity in 

physical placement.
No. 2021AP868

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on this presumption would be hard on this child.” While these statements did

occur in the context of the court rejecting Biehl’s argument that Hyde had failed to 

rebut the presumption, Biehl fails to consider these comments in the context of the 

court’s broader discussion. Specifically, the court made these comments while

discussing, among other things, the daughter’s “sincere wish” to spend equal time 

with her parents, the daughter’s ability to adapt to change, and the “good reasons” 

that supported the modification of physical placement.

¶32 When considered in the proper context, the circuit court’s statements 

demonstrate that the court contemplated the presumption in WIS. STAT.

§ 767.451(1)(b)2.b. but concluded that modification was in the child’s best 

interest. In particular, by stating that it “would be hard” on the child if the court 

relied on the presumption, the court undoubtedly determined that continuing the 

existing placement was not in the absolute best interest of the child. Further, we 

do not interpret any of the court’s other statements as demonstrating an improper 

understanding or application of the presumption. Accordingly, we cannot 

conclude, on this record, that the court applied an improper legal standard when 

determining whether Hyde had rebutted the presumption in § 767.451(1)(b)2.b.

¶33 Biehl also argues that none of the factors in WIS. STAT.

§ 767.41(5)(am) support the circuit court’s conclusion that modifying physical 

placement was in the child’s best interest or that Hyde had rebutted the 

presumption. In addition, Biehl contends that the court failed to explain what 

factors it relied upon in its decision to modify placement.

¶34 Although the circuit court did not explicitly reference all of the 

subdivisions in WIS. STAT. § 767.41(5)(am) upon which it relied, the record 

demonstrates that the court considered the relevant factors in § 767.41(5)(am) and 
No. 2021AP868

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that those factors supported the court’s determination that modifying placement 

was in the child’s best interest.

8

 Both parties submitted written briefs to the circuit 

court regarding the motion to modify physical placement, which discussed, among 

other things, the factors relevant to the child’s best interest. The parties also had 

an opportunity to discuss the relevant factors in their oral arguments. After 

considering these arguments and the evidence, the court began its decision by 

recognizing that “both parents are actually very good parents. They’re doing a 

great job. The child is thriving and doing well.”

¶35 The circuit court then considered “probably the largest factor,”

which was the child’s request that she spend “equal time with each parent.” See

WIS. STAT. § 767.41(5)(am)2. The court noted that there was “some limited 

information” that the daughter might have been manipulated into making the 

request because the young, six- to seven-year-old daughter apparently suggested a 

“2/2/3” placement on her own. But the court nonetheless found the daughter’s 

request for equal time to be her “sincere wish.”

¶36 Biehl suggests that the child’s request regarding placement was 

“unreliable” and that it could not be used to support the circuit court’s decision. 

Biehl fails to argue, however, that the court’s findings regarding the daughter’s 

request, including its sincerity, were clearly erroneous. Even if Biehl had raised 

that argument, the record contains ample evidence to support the court’s findings. 

Schroeder testified that the parties’ daughter said during the custody study that

 

8

 To the extent Biehl argues that the final order failed to comply with WIS. STAT.

§ 767.41(6) because the circuit court did not explain why modifying physical placement was in 

the child’s best interest, we disagree. The final written order incorporated the transcript of the 

court’s oral decision, which adequately expresses the court’s findings and the factors that it relied 

upon in reaching its decision.
No. 2021AP868

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“she wanted to spend equal time with [her] dad,” and Schroeder believed the 

daughter’s statements seemed “authentic.” Likewise, Hyde testified, “I have never 

coached her for this. Absolutely not.” The court could therefore find, as it did, 

that the child sincerely wanted to spend equal time with her parents, and it could 

rely on the child’s request when determining her best interest.

¶37 After considering the child’s request regarding placement, the circuit 

court then observed that “each of these households have other children ... and she 

apparently enjoys that as well. So that’s a consideration.” See WIS. STAT.

§ 767.41(5)(am)3. Although Biehl seems to dismiss this factor as not favoring 

either party, equal time with each parent gives the parties’ daughter an equal 

opportunity to develop relationships with her siblings in both households. Thus, 

by modifying placement to equal time, the court was able to provide the child with 

a better opportunity to further strengthen her relationship with Hyde’s son, while 

still providing her with an adequate opportunity to spend time with Biehl’s 

children.

¶38 The circuit court next considered several factors related to the 

child’s development and adjustment to home and school, her need for regular 

periods of placement, and each party’s support of the other party’s relationship 

with the child. See WIS. STAT. § 767.41(5)(am)5.-6., 8., 11. Specifically, the 

court recognized that the child is eight years old, smart, doing well in school, and 

“appear[s] to be above average” in her development. In addition, the court noted 

that “regular and meaningful periods of physical placement” did not seem to be a 

significant factor because the proposed change involved only one day per week. 

The court also observed that “there’s evidence in this case of both parents being 

oppositional to each other” and that Hyde had made some negative comments 

about Biehl.
No. 2021AP868

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¶39 Although the circuit court did not expressly discuss Schroeder’s 

recommendation from her custody study, that recommendation further supports

the court’s exercise of discretion because she recommended equal placement with 

each parent. See WIS. STAT. § 767.41(5)(am)15. Biehl suggests that this

recommendation could not be relied upon because, in her opinion, Schroeder did 

not sufficiently explain her recommendation with reference to the factors in

§ 767.41(5)(am).9 As a witness, however, Schroeder was not required to explicitly 

reference each statutory factor in support of her recommendation. Moreover, 

Schroeder provided an adequate explanation for her recommendation, testifying 

that equal placement would “maximiz[e] each parent’s available time” and that 

“there were no concerns [about the parents or the proposed placement] that came 

up” in the custody study.

¶40 In the end, the circuit court determined that Hyde had rebutted the 

presumption of the status quo and that modification was in the child’s best interest. 

We conclude that the court did not erroneously exercise its discretion in reaching 

these conclusions because the court applied the correct legal standards set forth in 

WIS. STAT. §§ 767.41(5)(am) and 767.451(1)(b) and because the court reached a 

reasonable result under the facts of this case. See Keller, 256 Wis. 2d 401, ¶6.

¶41 Biehl argues in her reply brief that the statutory presumption “exists 

to decide close cases in favor of the party opposing modification.” We disagree. 

 

9

 Biehl argues in her brief-in-chief that WIS. STAT. § 767.41(5)(am)15. was not a 

relevant factor because Schroeder’s report was never “admitted into evidence.” See id. Biehl, 

however, fails to respond to—and therefore concedes—Hyde’s argument that Schroeder’s 

testimony about her report was sufficient to meet the “admitted into evidence” requirement of 

§ 767.41(5)(am)15. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 

109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments may be deemed conceded).
No. 2021AP868

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The purpose of the presumption is to protect the best interest of the child, see

Landwehr, 291 Wis. 2d 49, ¶34 n.13, which sometimes requires maintaining the 

status quo. Here, however, the circuit court determined that modification was in 

the child’s best interest based upon the relevant statutory factors and that Hyde 

had rebutted the presumption of the status quo. Because these conclusions were 

reasonable, we must affirm.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.