author:
HIGGINBOTHAM, J. LUNDSTEN, J.
      DEININGER, EJ.

text:
    In re the Paternity of Nicholas B. Palmersheim: Leanne M. Abbas, Petitioner-Respondent, v. Bradley J. Palmersheim, Respondent-Appellant.

    Court of Appeals

      Nos. 02-3390, 03-1267.

      Submitted on briefs October 14, 2003.

      Decided June 3, 2004.

    2004 WI App 126
    (Also reported in 685 N.W.2d 546.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs oí Dale M. Eaton and Mary M. Prohaska of Eaton & Prohaska, LLP, Wausau.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Charles J. Lee of Red Wing, Minnesota.
    Before Deininger, EJ., Lundsten and Higginbotham, JJ.

       Petition to review granted 9-16-04.

   HIGGINBOTHAM, J.

¶ 1. Bradley M. Palmer-sheim appeals a circuit court order denying his motion for modification of custody and physical placement of Palmersheim's minor son. The circuit court found Palmersheim failed to establish a significant change in circumstances from the previous custody and physical placement order and also found Palmersheim failed to rebut the presumption that the current custody and physical placement arrangement was in the child's best interest under Wis. Stat. § 767.325(l)(b) (2001-02). Because the record does not support the circuit court's finding of no significant change in circumstances, we conclude the circuit court erred. However, because the circuit court proceeded to the second step in the analysis, that is, whether Palmersheim established that his proposed changes in custody and placement were in the child's best interest, we also conclude the circuit court's error was harmless. We further conclude that the circuit court applied the correct legal standard in determining the best interest of the child and that Palmersheim's equal protection rights were not violated. We therefore affirm the circuit court's order.

BACKGROUND

¶ 2. Palmersheim and Leanne M. Abbas are the parents of Nicholas, born October 6, 1991. A stipulated paternity judgment was entered on February 17, 1992, awarding sole legal custody to Abbas and periods of physical placement with Palmersheim "as agreed between the parties." At the time of this paternity judgment, Wis. Stat. § 767.51(3) (1991-1992) provided, in relevant part, "Unless the court orders otherwise,. . . the mother shall have sole legal custody of the child."

¶ 3. In August 2001, Palmersheim filed a motion to modify the original paternity judgment, seeking joint custody and shared physical placement. A hearing was held on this motion on June 10, 2002. Both Palmer-sheim and Abbas testified, as did Teri Phalin, a certified social worker who had completed a home study at the request of the guardian ad litem. Phalin testified, and her report states, the child is well adjusted, is doing well in school and is participating in both sports and an accelerated learning program. Phalin recommended joint custody, as did the guardian ad litem.

¶ 4. The circuit court, applying Wis. Stat. § 767.325(l)(b), denied Palmersheim's motion, finding that (1) Palmersheim failed to establish a substantial change in circumstances substantially affecting legal custody and physical placement since the entry of the previous order, and (2) Palmersheim failed to rebut the presumption that the current allocation of decision making under the legal custody order and the continuation of the child's primary physical placement with Abbas are in the best interest of the child.

¶ 5. On December 17, 2002, Palmersheim moved for reconsideration of the circuit court's December 4, 2002 order, claiming his constitutional right to equal protection was violated by application of the Wis. Stat. § 767.325(l)(b)2 presumptions. The circuit court denied his motion stating it is not unfair to presume to continue the status quo after eleven years have passed since the original custody and placement order and Palmersheim should not be permitted to interject a constitutional argument not presented at the motion hearing six months earlier. Palmersheim appeals.

DISCUSSION

Substantial Change in Circumstances

¶ 6. Whether to modify a custody or physical placement order is directed to the circuit court's sound discretion. Keller v. Keller, 2002 WI App 161, ¶ 6, 256 Wis. 2d 401, 647 N.W.2d 426. We affirm a circuit court's discretionary determination when the circuit court applies the correct legal standard to the facts of record and reaches a reasonable result. Id. Our task as a reviewing court is to search the record for reasons to sustain the circuit court's exercise of discretion. Id. However, when a party argues that the circuit court erroneously exercised its discretion by applying an incorrect legal standard, we independently review that issue of law. Id.

¶ 7. Wisconsin Stat. § 767.325(l)(b)2 provides that, after two years, a circuit court may substantially modify custody or physical placement if the modification is in the child's best interest and there has been a substantial change in circumstances since the entry of the last custody and placement order. Section § 767.325(l)(b)2 establishes a rebuttable presumption that

a. Continuing the current allocation of decision making under a legal custody order is in the hest interest of the child.
b. Continuing 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.

¶ 8. Whether there is a substantial change in circumstances is a mixed question of law and fact. See Harris v. Harris, 141 Wis. 2d 569, 574, 415 N.W.2d 586 (Ct. App. 1987). The circuit court's findings of fact regarding an alleged change of circumstance since the last custody and placement order will not be disturbed unless clearly erroneous. Rosplock v. Rosplock, 217 Wis. 2d 22, 33, 577 N.W.2d 32 (Ct. App. 1998). However, whether a substantial change in circumstances has occurred is a question of law. Keller, 256 Wis. 2d 401, ¶ 7. Because the circuit court's legal determination is mixed with its factual findings, we give weight to the circuit court's decision. Rosplock, 217 Wis. 2d at 33 (citation omitted).

¶ 9. Palmersheim argues that the circuit court erred by determining there was not a substantial change in circumstances since the entry of the last order affecting legal custody or physical placement. A substantial change of circumstances requires that the facts on which the prior order was based differ from the present facts and the difference is sufficient to justify the circuit court's consideration of modification. Keller, 256 Wis. 2d 401, ¶ 7. We are not bound by a circuit court's determination of whether there' was a significant change in circumstances. Id.

¶ 10. We conclude the evidence of record does not support the circuit court's finding of no substantial change in circumstances since the entry of the last order affecting legal custody or physical placement. Apparently the circuit court focused on events that occurred in the years just prior to the hearing in this matter, which, standing alone, do not show a substantial change in circumstances. However, when the entire relevant time period is considered, the facts clearly show a significant change in circumstances.

¶ 11. At the time of the last custody and placement order (the 1992 paternity judgment and order), Nicholas was four months old. Palmersheim and Abbas resided in the home of Palmersheim's parents in Wisconsin Rapids, Wisconsin. Palmersheim was a student at the University of Wisconsin-Stevens Point and Abbas was unemployed, receiving government assistance in the form of financial aid, food stamps and Medical Assistance. Palmersheim was able to be with his son every day and be a full-time parent.

¶ 12. Approximately six to eight months after the custody and placement order was issued, Abbas and Palmersheim broke up and Abbas moved to an apartment in Plover, Wisconsin, with Nicholas. Because of the custody and placement order, Abbas had sole legal custody and primary physical placement with periods of physical placement to Palmersheim as agreed between the parties. Palmersheim had irregular contact with Nicholas during the next several years. Beginning around 1994, Palmersheim had physical placement of Nicholas approximately every other weekend with perhaps one additional night during the week. Palmer-sheim also had extended periods of visitation during the summer months.

¶ 13. Today, Palmersheim and Abbas reside in different communities approximately forty-five minutes apart, have successful careers and are in commit,ted relationships with other persons. Nicholas is now twelve years old, well adjusted and successful in school. Palmersheim, at the time of the motion hearing in this case, had physical placement of Nicholas every other weekend from Friday until Monday mornings and overnight every Thursday. The parties alternated placement on holidays.

¶ 14. The facts upon which the prior order was based are substantially different from the present facts and this difference is sufficient to justify modification of the previous order. This is particularly true with respect to the amount of time Palmersheim has with Nicholas. At the time of the original custody and placement order, Nicholas lived with both parents. Palmersheim saw Nicholas every day. At the time of the hearing in this case Palmersheim saw Nicholas only every other weekend and every Thursday night. This change is substantial and material. We conclude the circuit court erred by finding Palmersheim had not established a significant change in circumstances.

¶ 15. However, we also conclude the circuit court's error is harmless. Despite its conclusion of no significant change in circumstances, the circuit court proceeded to analyze the evidence under Wis. Stat. § 767.325(l)(b)2 to determine whether Palmersheim's proposed changes in custody and placement were in Nicholas's best interest. On appeal, Palmersheim asserts the circuit court used an erroneous legal standard when determining the best interest of the child. Palm-ersheim raises no objections to the circuit court's factual findings. We conclude the circuit court applied the correct legal standard and we affirm.

Best Interest of the Child

¶ 16. We now determine whether the circuit court applied the correct legal standard in determining whether the proposed changes in custody and placement were in Nicholas's best interest. Palmersheim argues the circuit court erred by applying the status quo presumption as provided by Wis. Stat. § 767.325(l)(b)2 rather than the joint legal custody presumption as required by Wis. Stat. § 767.24(2)(am). Palmersheim asserts Wis. Stat. § 767.325(5m), which requires the circuit court to consider whether the proposed modification of custody and placement is in the child's best interest "in a manner consistent" with § 767.24, obligates the court to presume that joint legal custody is in the child's best interest. Section 767.24 is the statute governing initial determinations of legal custody and physical placement. In essence, Palmersheim argues, the status quo presumption does not apply in modification proceedings. He claims that the joint legal custody presumption is the "new" rebuttable presumption applicable in all cases, including custody and placement modification proceedings. We disagree.

¶ 17. The question before us is one of statutory interpretation, which we decide de novo. See Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997). Our primary objective in statutory interpretation is to discern the intent of the legislature. See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 25, 559 N.W.2d 563 (1997). To ascertain legislative intent, we first look to the statute's plain language. Id. A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997).

¶ 18. This case requires us to construe the statutory construction of two related statutes. The entire section of a statute and related sections are to be considered in its construction or interpretation; we do not read statutes out of context. Kerkvliet v. Kerkvliet, 166 Wis. 2d 930, 939, 480 N.W.2d 823 (Ct. App. 1992). In determining the meaning of any single phrase or word in a statute, it is necessary to look at it in light of the whole statute and related sections. Id. Statutes relating to the same subject matter are to be construed together and harmonized. Id. We are to interpret statutes so as to effectuate the purpose of the whole act; a construction which will defeat the manifest object of the act is disfavored. Id. at 940.

¶ 19. Standing alone, neither Wis. Stat. § 767.24(2)(am) nor Wis. Stat. § 767.325(l)(b) is ambiguous. However, these statutes are ambiguous in their interaction. There is an inherent conflict between these statutes when applied to custody and physical placement modification petitions or motions. Which presumption applies under a particular circumstance is tricky business, especially in the case where neither party is successful in rebutting either presumption.

¶ 20. Before Wis. Stat. § 767.325(5m) was created, Wis. Stat. § 767.24 applied only to initial determinations of legal custody and physical placement and § 767.325 applied only to custody and placement modification proceedings. See Kerkvliet, 166 Wis. 2d at 941, 943-44. No ambiguity existed. However, ambiguity now exists by the creation of § 767.325(5m), which requires courts to construe § 767.325 "in a manner consistent with s. 767.24." This language could be construed as requiring courts to incorporate all aspects of § 767.24 by reference into § 767.325 in determining custody and placement modification motions. Another reasonable interpretation of this phrase is that courts are required to consider those aspects of § 767.24 plainly applicable to modification proceedings, such as § 767.24(5), which provides the factors courts must consider in determining custody and placement at both initial and modification proceedings. Moreover, the language of Wis. Stat. § 767.24(2)(am) does not support applying this section to modification proceedings. To further complicate matters, the legislature did not explicitly repeal Wis. Stat. § 767.325(l)(b), thereby creating the possibility that two rebuttable, but diametrically opposed, presumptions are to be applied in custody and placement modification determinations.

¶ 21. Palmersheim argues "in a manner consistent with s. 767.24" means the presumption of joint legal custody as stated in Wis. Stat. § 767.24(2) (am) must be applied in all custody modification proceedings. Abbas argues that the legislature's decision not to repeal the status quo presumption in Wis. Stat. § 767.325(l)(b)2 shows the legislature did not intend to require courts to presume that joint legal custody was in the child's best interest in modification proceedings. What the legislature intended by this change is not so clear.

¶ 22. There is no dispute that the legislature, by enacting Wis. Stat. § 767.24(2)(am), intended to create a rebuttable presumption in favor of joint legal custody applicable in all initial custody proceedings. What is not clear is whether the legislature intended this presumption to apply in custody modification determinations. Moreover, were we to conclude that the legislature intended to apply the presumption of joint legal custody to custody modification actions, it is clear that the legislature failed to achieve its objective.

¶ 23. Because the legislature failed to specifically repeal the status quo presumption, we must construe the statutes in a manner so as to resolve the ambiguities. We bear in mind that where statutes relate to the same subject matter, they should be read together and harmonized if possible. Kerkvliet, 166 Wis. 2d at 939. To harmonize the two statutes, we must read them together in a way that gives each full force and effect. City of Milwaukee v. Kilgore, 193 Wis. 2d 168, 184, 532 N.W.2d 690 (1995).

¶ 24. We conclude that the most reasonable interpretation of Wis. Stat. § 767.24(2)(am) is that the presumption that joint legal custody is in the child's best interest applies only in initial legal custody determinations, not in modification determinations. Were we to conclude that the § 767.24(2) (am) presumption favoring joint legal custody applied to a Wis. Stat. § 767.325(1)(b) motion for modification of custody and physical placement, such a conclusion would, in essence, eliminate the § 767.325(l)(b) presumption favoring the status quo. We will not interpret a statute in a way that results in the judicial nullification of a statute. See Phillips v. Wisconsin Pers. Comm'n, 167 Wis. 2d 205, 217, 482 N.W.2d 121 (Ct. App. 1992). Furthermore, this interpretation would abrogate the clear legislative preference for continuity in custody and placement. The legislature raised the bar for parties wishing to upset the status quo by enacting § 767.325(l)(b) because changes in custody and physical placement can be hard on children and change is not desirable unless supported by good reason. We conclude the legislature did not intend to eliminate the preference for continuity in custody and placement as codified in § 767.325(l)(b) by enacting § 767.24(2)(am) and Wis. Stat. § 767.325(5m).

¶ 25. In addition, the modification statute is inconsistent with a presumption favoring joint legal custody since it favors continuing the status quo regardless of whether the initial order awarded joint legal custody. Under Palmersheim's view, the status quo presumption would only apply when joint legal custody is the status quo. Moreover, even if the legislature intended to eliminate the presumption of maintaining the status quo in modification actions, the legislature failed to clearly signal its intentions by not specifically repealing Wis. Stat. § 767.325(l)(b).

¶ 26. Furthermore, it is presumed that the legislature acts with knowledge of existing statutes when enacting legislation. H.F. v. T.F., 168 Wis. 2d 62, 69 n.5, 483 N.W.2d 803 (1992). We must presume the legislature did not intend to create a conflict between these two statutes. Id. at 69-70 n.5. Thus, it is reasonable for us to assume that when the legislature enacted Wis. Stat. § 767.325(5m) requiring the circuit court, in all custody and placement modification actions, to make its determination "in a manner consistent" with Wis. Stat. § 767.24, the legislature was aware of the more specific status quo presumption required by Wis. Stat. § 767.325(l)(b).

¶ 27. Finally, because Wis. Stat. § 767.325(5m) is general and, as it relates to this topic, at best, ambiguous, and Wis. Stat. § 767.325(l)(b)2 is specific and clear with respect to the presumption to be applied in custody and placement modification proceedings, the specific language trumps the general language. See Brown County v. State Pub. Defender, 167 Wis. 2d 168, 174, 482 N.W.2d 665 (Ct. App. 1992). If a sufficient number of legislators had reached agreement that the status quo presumption should not apply when an existing custody order is for sole custody, then surely the legislature would have chosen a means less obscure than § 767.325(5m) to achieve that result. The most reasonable interpretation of the legislature's failure to specifically repeal the status quo presumption contained in § 767.325(l)(b)2 is that the legislature intended for the status quo presumption to survive its sweeping changes of the law.

¶ 28. The dissent's interpretation of the statutes is unworkable because it fails to provide direction to circuit courts in deciding close cases, the very cases in which a presumption is most important. The dissent's suggestion is unworkable precisely because it directs that conflicting presumptions be applied simultaneously. The dissent suggests that in close cases the circuit court's final task is to "assess the strength of the competing legislative directives on the record before it, and ultimately, to determine which should receive the greater weight in the case at hand." Dissent at ¶ 60. But this is no guidance at all. How does a circuit court "assess the strength of the competing legislative directives" in a close case? The result of adopting the dissent's approach is predictable: judges who, in general, favor sole custody will likely give that presumption greater weight. Judges with no personal preference will be left adrift with no guidance as to which presumption should be given "greater weight." Certainly the legislature did not intend this.

Equal Protection

¶ 29. Palmersheim next argues that if the status quo presumption of Wis. Stat. § 767.325(1) (b) cannot be rebutted by the joint custody presumption in Wis. Stat. § 767.24(2)(am), then application of the status quo presumption in § 767.325(1)(b) deprives him of his constitutional right to equal protection under the law. He argues that because the right to raise one's child is a fundamental right, there must be a compelling state interest in maintaining a presumption that the status quo is in a child's best interest in custody and placement modification proceedings where the initial custody and placement determinations were made prior to the 1999 legislative changes. Palmersheim claims that he and other similarly situated parents who were subject to the presumption of sole legal custody prior to the 1999 legislative changes are being deprived the benefit of the presumption that joint legal custody is in the child's best interest in modification proceedings by operation of § 767.325(l)(b)2. He points out that this presumption is fair for those parents seeking modification after the 1999 legislation was enacted but parents who seek to modify custody and placement where their last custody and placement orders occurred prior to 1999 will never enjoy a presumption of joint custody and maximized physical placement.

¶ 30. We review a constitutional challenge to a statute de novo. Bethke v. Lauderdale of La Crosse, Inc., 2000 WI App 107, ¶ 15, 235 Wis. 2d 103, 612 N.W.2d 332. We give no deference to the circuit court's determination in this matter. Griffin v. Milwaukee Transp. Servs., Inc., 2001 WI App 125, ¶ 4, 246 Wis. 2d 433, 630 N.W.2d 536. A statute enjoys a presumption of constitutionality and a party challenging a statute must establish its unconstitutionality beyond a reasonable doubt. Sambs v. City of Brookfield, 97 Wis. 2d 356, 370, 293 N.W.2d 504 (1980).

¶ 31. A party seeking to challenge the constitutionality of a statute on equal protection grounds must demonstrate that the statute treats similarly situated persons differently. Aicher v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶ 56, 237 Wis. 2d 99, 613 N.W.2d 849. We apply a strict scrutiny analysis where the statute impinges-upon a fundamental right or creates a classification that disadvantages a suspect class. Id.

¶ 32. We conclude that applying Wis. Stat. § 767.325(l)(b)2 to the facts of this case implicates a fundamental right. We recognize that parents have a fundamental right to the care and custody of their children. See Barstad v. Frazier, 118 Wis. 2d 549, 556-57, 348 N.W.2d 479 (1984). We further conclude, however, that the state's interest in protecting the best interest of a child by imposing a rebuttable presumption of maintaining the status quo in custody and physical placement modification proceedings is compelling and that § 767.325(l)(b)2 is narrowly tailored to achieve that purpose.

¶ 33. First, because we have concluded that the legislature failed to create a presumption that joint legal custody applies in custody and placement modification proceedings, all parties seeking modification of custody and placement orders, regardless of the date the last order was entered, are treated the same; the presumption that the status quo is in the child's best interest will be applied.

¶ 34. Second, the legislative decision to leave in place the presumption of continued custody and placement reveals its belief that it is inherently harmful to change a child's situation absent some change in circumstances that makes the status quo no longer in the child's best interest. Third, parents such as Palmer-sheim will not in all instances be treated differently than post-1999 legislation parents. The status quo presumption applies even for parents where the court makes an initial custody and placement determination after the 1999 reform legislation went into effect. Wisconsin Stat. § 767.24(2) provides certain circumstances under which a circuit court may order sole custody to a parent. Thus, a parent seeking modification of that order will he similarly affected as a pre-1999 legislation parent who carries the burden of demonstrating that it is in his or her child's best interest to modify custody or placement. In essence, continuity in custody and placement circumstances is beneficial for children, which constitutes a compelling state interest, even where the mother originally acquired custody due to the sole legal custody presumption. We conclude the circuit court applied the correct legal standard by applying Wis. Stat. § 767.325(1)(b) to the facts of this case.

CONCLUSION

¶ 35. While we agree with Palmersheim that there was a substantial change in circumstances, we conclude that the circuit court applied the correct standard of law under Wis. Stat. § 767.325(1)(b)2, a presumption that maintaining the current custody and physical placement schedule is in the child's best interest. We also conclude Palmersheim's equal protection rights have not been violated by operation of § 767.325(1)(b)2. We therefore affirm the order denying Palmersheim's request for modification of custody and physical placement.

By the Court — Order affirmed.

LUNDSTEN, J.

¶ 36. (concurring). I agree with much of the lead opinion. I join the conclusions that there was a substantial change in circumstances in this case and that there is no equal protection violation. Regarding the construction of the status quo language found in Wis. Stat. § 767.325(1)(b)2,1 join the conclusion that the status quo presumption that applies to custody modification requests is unaffected by the creation of § 767.325(5m). I write separately, however, because I differ in how I reach that conclusion. Unlike the lead opinion, I conclude that the statutes are unambiguous.

¶ 37. The asserted conflict between the different custody presumptions arises in cases where a prior order gives sole custody to one parent and, later, the other parent requests modification of the order to joint custody. Here, the mother has had sole custody since 1992 and the father, Palmersheim, seeks modification to joint custody. Palmersheim argues that the joint custody presumption in Wis. Stat. § 767.24(2) (am) trumps the status quo presumption in Wis. Stat. § 767.325(l)(b)2 because § 767.325(5m) states that modifications to custody and placement orders "shall" be made in a "manner consistent with" § 767.24, and § 767.24 contains the joint custody presumption.

¶ 38. My review of the legislative history leads me to conclude that there is nothing in that history that reliably demonstrates whether the many legislators who voted for the changes encompassed in 1999 Wis. Act 9 intended that one of those changes be that the status quo presumption applicable to modification proceedings take a back seat to the joint custody presumption. In any event, we need not engage in an effort to discern the subjective intent of legislators because the statutes at issue are unambiguous.

¶ 39. The joint custody presumption applies to initial custody decisions. Typically, at the time of an initial custody decision, change for the children is unavoidable. At this initial stage, the legislature has provided that courts "shall presume that joint legal custody is in the best interest of the child." Wis, Stat. § 767.24(2)(am). Obviously, the legislature has determined that, in the aftermath of a parting of the ways of parents, children benefit from the active involvement of both parents. No ambiguity here.

¶ 40. Just as plainly, the legislature recognizes that children benefit from continuity. Thus, under Wis. Stat. § 767.325(l)(b), the modification of a custody order must be "in the best interest of the child" and "there is a rebuttable presumption that... Continuing the current allocation of decision making under a legal custody order is in the best interest of the child." No ambiguity here either.

¶ 41. Palmersheim argues, and the lead opinion agrees, that Wis. Stat. § 767.325(5m) introduces ambiguity. I disagree. Section 767.325(5m) reads, in pertinent part: "In all actions to modify legal custody. . . the court. . . shall make its determination in a manner consistent with s. 767.24." There is, however, nothing inconsistent between the joint custody presumption applied at the time of an initial custody decision and the status quo presumption applied two or more years later, the time after which the status quo presumption applies.

¶ 42. As the lead opinion points out, when courts construe statutes, specific language controls general language. See Brown County v. State Pub. Defender, 167 Wis. 2d 168, 174, 482 N.W.2d 665 (Ct. App. 1992) ("[W]hen a general and a specific statute relate to the same subject matter, the specific statute controls."). Here, Wis. Stat. § 767.325(1)(b)2 is specific and clear, whereas § 767.325(5m) is general and, as it relates to this topic, at best ambiguous. I agree with the lead opinion's statement that "[i]f a sufficient number of legislators had reached agreement that the status quo presumption should not apply when an existing custody order is for sole custody, then surely the legislature would have chosen a means less obscure than § 767.325(5m) to achieve that result." Lead opinion at ¶ 27. Stated differently, there is no ambiguity because the unambiguous specific language of § 767.325(l)(b)2 controls over the ambiguous general language found in § 767.325(5m).

¶ 43. The dissent proposes a creative solution not suggested by either party. However, I agree with the view expressed by the lead opinion that applying both presumptions simultaneously is not a viable interpretation of the statutes. I offer a few more words on that topic.

¶ 44. It is not hard to imagine how the dissent's proposal would be received by parties and trial court judges. Putting myself in the place of a trial court judge attempting to apply the dissent's proposal, I might ask the following:

Now let me get this straight. The mother here has sole custody because of the 1999 order. The father wants a switch to joint custody. There is a lot of credible evidence both for and against maintaining the status quo. Do I have this right? Is the court of appeals telling me I must apply both the presumption of continued sole custody and the presumption that I should switch to joint custody? I guess I am supposed to decide which presumption gets more weight, but how should I do that?

The dissent's proposal has the effect of nullifying both presumptions in cases in which a presumption is needed most, that is, close cases where it is not clear whether the current custody arrangement should be maintained or modified.

¶ 45. Finally, I note that the dissent weaves into its discussion a topic not emphasized by the parties or the lead opinion: the maximization-of-placement-time directive found in Wis. Stat. § 767.24(4)(a)2. The allocation of placement time often has a greater effect on children and parents than decision-making authority conferred by custody allocation orders. It seems to me that Palmersheim's argument in this regard is weaker still because, as the dissent explains, in contrast to custody, there is no presumption of equal physical placement. See Lofthus v. Lofthus, 2004 WI App 65, ¶ 14, 270 Wis. 2d 515, 678 N.W.2d 393, review dismissed, 2004 WI 50, 271 Wis. 2d 113, 679 N.W.2d 547 (No. 03-1754); Arnold v. Arnold, 2004 WI App 62, ¶ 2, 270 Wis. 2d 705, 679 N.W.2d 296, review denied, 2004 WI 50, 271 Wis. 2d 112, 679 N.W.2d 547 (No. 03-1547), cert. denied, 125 S.Ct. 112 (2004); Keller v. Keller, 2002 WI App 161, ¶ 12, 256 Wis. 2d 401, 647 N.W.2d 426. If I am wrong in my conclusion that there is no conflict between the joint custody presumption applicable to initial custody decisions and the status quo presumption applicable to modification proceedings, then an important question arises as to whether there is a conflict between the maximization-of-placement-time directive (which is something less than an equal placement presumption) and the continuity presumption.

¶ 46. It would be hard to overstate the importance of the subjects we address today: decision-making authority of parents and placement time. I readily admit I do not know whether the legislature subjectively intended to eliminate or modify the status quo presumption in cases like the one before us. I only know that it failed to do so. At the same time, this court does not have the final word on the topic. The dissent recommends that the supreme court accept this case for review if a petition is filed, and I join in that recommendation. Further, if the legislature's intent was to eliminate or modify the status quo presumption, the lead, dissenting, and concurring opinions in this case should leave no doubt as to how that goal can be achieved.

DEININGER, EJ.

¶ 47. (dissenting). I agree with the lead opinion that the trial court erred in concluding that there had not been a substantial change in circumstances since the initial custody and placement determinations in this paternity action. The lead opinion concludes that this error was harmless, which perhaps it was, because the trial court ostensibly went on to consider whether modifications to the existing order would be in the child's best interest. I do not agree, however, with the lead opinion's conclusion that the trial court applied the proper standard of law in determining that it would not be in the child's best interest to modify the existing allocation of custody and placement.

¶ 48. Rather, I conclude the trial court erred in giving no consideration whatsoever to the legislatively mandated presumption "that joint legal custody is in the best interest of the child," Wis. Stat. § 767.24(2)(am) (2001-02), or to the legislature's direction "to set a placement schedule that maximizes the amount of time the child may spend with each parent," § 767.24(4)(a)2.1 would reverse the appealed order and remand to allow the trial court to consider whether, under the applicable statutes, correctly interpreted, joint custody should be ordered and the present physical placement schedule modified. Accordingly, I respectfully dissent.

¶ 49. There can be no question that the trial court felt constrained to apply the "continuity presumptions," Wis. Stat. § 767.325(1)(b)2, and only those presumptions, in determining whether the modifications sought by Palmersheim were in the best interest of the child. The trial court's comments strongly suggest that, had it not believed itself to be so constrained, it might have ordered modifications to the existing custody and placement arrangements:

The Court has to follow the statute.... It's not what I want to do; it's what I have to do. I've got to follow the statute. The statute is telling me there's a rebuttable presumption that continuing the current allocation of decisionmaking is in the best interests of the child, and I can't find sufficient evidence in this record to overcome that presumption.
Let's go to the next part of it. Continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interests of the child. And in order to get that change, you've got to have that substantial change in circumstances.
... I respect the guardian ad litem's recommendation, and I respect the recommendation of the social worker. I've got to follow the statute, and I'm not sure the statute — I'm not satisfied from the evidence that there's a substantial change in circumstances which allow me to make the modifications that I think are probably appropriate .... In fact, as I was considering this, I thought about expanding the, the visitation, but as I read this statute, I can't do that unless I am satisfied that there's been a substantial change in circumstances. So in essence, it's ... almost easier in an initial finding when the parties first come before the Court to have the Court make types of findings that would allow for visitation that the Court believes are appropriate. But I think that given the statute the way it is, I. . . don't think I can do it....
I understand Mr. Palmersheim's wanting to have joint custody and wanting to have extended periods of physical placement, but I don't think I can do it under the statute. I think that Mr. Palmersheim is well-motivated. I respect that. I think he's a good father.

¶ 50. The trial court's comments indicate that it may have intertwined its analysis of whether a change of circumstances had been demonstrated with its analysis of the best interest of the child in light of the continuity presumptions under Wis. Stat. § 767.325(l)(b)2. If that is the case, the court's error in finding no change in circumstances may not have been as harmless as the lead opinion concludes. Lead opinion at ¶ 15. Even though the trial court refers in the quoted portion of its ruling to a lack of changed circumstances, it was also clearly engaged in a determination of whether the continuity presumptions had been overcome. Had the trial court considered the legislative directives which favor joint legal custody and the maximization of placement time with each parent, Wis. Stat. § 767.24(2)(am) and (4)(a)2, as counterpoints to the continuity presumptions, as I conclude it was required to do, the trial court might well have granted modifications to the existing order.

¶ 51. When a trial court's discretionary determination rests on an erroneous view of the law, the court has erroneously exercised its discretion. See State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968). I conclude that is what happened here.

¶ 52. Under the plain language of Wis. Stat. § 767.325(5m), which was enacted at the same time as the directives in favor of joint custody and maximization of placement time with each parent, "[i]n all actions to modify legal custody or physical placement orders, the court shall consider the factors under 767.24(5) and shall make its determination in a manner consistent with s. 767.24" (emphasis added). Legislative history provided to us by Palmersheim supports a conclusion that the legislature intended that courts consider its preferences for joint custody and maximization of placement time with each parent whenever a court makes custody and placement decisions. An earlier version of the legislative bill that ultimately became 1999 Wis. Act 9 provided in the newly created § 767.325(5m) that a court faced with a modification request must consider only the custody and placement factors listed in Wis. Stat. § 767.24(5). The provision was amended before final passage, however, to add the direction for courts to make the determination regarding modification "in a manner consistent with s. 767.24." The added language was apparently suggested to the drafting attorney by a member of the legislative lead author's staff, who explained in a memo to the drafter:

It appears that modifications to [the bill] suggested by the State Bar. . . would make the changes in the factors under s. 767.24(5) applicable to revisions of legal custody and physical placement orders. That memo, however, is silent with respect to the applicability of important changes to the language that are being made in s. 767.24(4)(a). The language below is intended to address this issue.

¶ 53. By relying on only the continuity presumptions of Wis. Stat. § 767.325(1) (b)2, the trial court failed to consider the possible countervailing effects of the express legislative directives favoring joint custody and maximization of placement time with each parent expressed in Wis. Stat. § 767.24(2)(am) and (4)(a)2. Thus, the trial court, in my view, violated the legislature's mandate in Wis. Stat. § 767.325C5m) that a court "shall make its determination in a manner consistent with s. 767.24" when considering whether to modify existing custody and placement orders under § 767.325.

¶ 54. The lead opinion justifies the trial court's failure to consider the effect of Wis. Stat. § 767.24(2) (am) and (4)(a)2 by concluding that certain provisions in § 767.24 apply only to initial custody and placement determinations but never to modification proceedings under Wis. Stat. § 767.325. Lead opinion at ¶ 24. It opines that applying the presumption under § 767.24(2) (am) in favor of joint custody to modification proceedings "would, in essence, eliminate the § 767.325(l)(b) presumption favoring the status quo." Id. But much the same can be said of the lead opinion's holding: it "in essence, eliminate[s]" the joint custody presumption of § 767.24(2)(am), the legislature's directive in § 767.24(4) (a)2 to maximize placement time with each parent, and the mandate of § 767.325(5m) that courts are to make modification determinations "in a manner consistent with s. 767.24."

¶ 55. In my view, the lead opinion has not sufficiently explained why we must conclude that the legislature meant what it said in Wis. Stat. § 767.325(1)(b)2 but not what it has more recently said in Wis. Stat. §§ 767.24(2)(am), 767.24(4)(a)2, and 767.325(5m). I am not persuaded that, in order to harmonize these statutes, we must necessarily ignore any of the legislature's directives. Rather, when we are "interpreting two statutes that are alleged to conflict, it is our duty to attempt to harmonize them in a way that will give effect to the legislature's intent in enacting both statutes." City of Madison v. DWD, 2003 WI 76, ¶ 11, 262 Wis. 2d 652, 664 N.W.2d 584.

¶ 56. One advantage of the lead opinion's interpretation, of course, is its simplicity. By permitting courts to simply ignore the express legislative directives in favor of joint custody and maximization of placement time with each parent expressed in Wis. Stat. § 767.24(2)(am) and (4)(a)2 when acting on modification requests, the lead opinion no doubt makes life a little easier for trial courts and much easier for parties seeking to maintain the status quo in sole-custody and substantially one-sided placement arrangements. Under what I believe to be the correct interpretation and application of the statutes, however, a party moving for modifications would be able to benefit from the legislative preferences expressed in § 767.24(2)(am) and (4)(a)2, while still shouldering significant burdens in seeking to disturb the status quo. Moreover, contrary to the lead opinion's suggestion, Lead opinion at ¶ 28, trial courts would not be without guidance in how to approach the modification determination.

¶ 57. First, if an existing order provides for joint custody and a placement schedule that arguably maximizes placement time with each parent, "taking into account geographic separation and accommodations for different households," Wis. Stat. § 767.24(4) (a)2, the party requesting changes would indeed swim upstream against a strong current of multiple legislative directives favoring the status quo. Moreover, even if the existing order provides for sole custody or a significantly one-sided placement schedule, but the order was entered at a time when the directives of the present § 767.24(2)(am) and (4)(a)2 were in effect, the moving party still has significant obstacles to overcome. He or she must show, as a threshold matter, that the circumstances that prompted the court to enter the original one-sided order, despite the legislative directives disfavoring it, have changed substantially. See Wis. Stat. § 767.325(l)(b)l.b.

¶ 58. It is only in the present circumstance that something approaching parity in the arguably dueling presumptions and directives occurs. The alleged conflict is not irreconcilable, however, as the lead opinion concludes. The legislature, by enacting Wis. Stat. § 767.325(5m), has expressed its intent that a parent who seeks modifications consistent with the presumption in Wis. Stat. § 767.24(2)(am) favoring joint custody, or with the directive in § 767.24(4)(a)2 for maximizing placement time with each parent, should have the benefit of the court's consideration of these legislative preferences in the modification proceedings. Again, the moving parent would still bear the burden of showing as a threshold matter that circumstances have changed since the initial custody and placement determinations. But, if a parent makes the required showing (which the lead opinion agrees Palmersheim has done, Lead opinion at ¶ 14), when deciding whether it is in the best interest of a child to modify an existing order for sole custody or substantially unequal placement, a court should consider the presumption of § 767.24(2)(am), the directive under § 767.24(4)(a)2, and the continuity presumptions under § 767.325(1)(b)2.

¶ 59. Although the competing presumptions may seem to point toward different outcomes in cases like this one, that will not necessarily be the case once the trial court has taken evidence and made its findings. See Wis. Stat. § 903.01 (providing that a "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"). For example, the presumption under Wis. Stat. § 767.24(2) (am) in favor of joint legal custody might be overcome by showing that "[o]ne party is .not capable of performing parental duties and responsibilities," or that "[t]he parties will not be able to cooperate in the future decision making required under an award of joint legal custody." Section 767.24(2) (b)2. The directive that "the amount of time the child may spend with each parent" should be maximized invites evidence relating to the "geographic separation and accommodations for different households" and whether more equalized sharing of placement would adversely affect the child's "physical, mental or emotional health." See § 767.24(4) (a)2 and (4)(b). The continuity presumptions of Wis. Stat. § 767.325(l)(b)2, on the other hand, seemingly call for evidence showing that the child would not be adversely affected by the proposed change, or perhaps that the benefits accruing to the child from a change would outweigh any benefits of maintaining existing custody and placement arrangements.

¶ 60. After hearing the evidence, the trial court should first make findings regarding whether any presumptions under Wis. Stat. § 767.325(1)(b)2 and Wis. Stat. § 767.24(2)(am) had been overcome, and whether the placement directive of § 767.24(4) (a)2 was shown to be infeasible or inadvisable. If the court concludes that the presumptions favoring the status quo are overcome and the competing presumption and directive are not, or vice versa, the outcome will be clear. If neither are overcome, however, leaving the § 767.325(1)(b)2 presumptions pointing toward maintaining the status quo and the § 767.24(2)(am) presumption or the § 767.24(4)(a)2 directive pointing toward modifications, the trial court's final task is to assess the strength of the competing legislative directives on the record before it, and ultimately, to determine which should receive the greater weight in the case at hand.

¶ 61. The weighing of competing goals and policy considerations is the essence of discretionary decision making. See, e.g., Connor v. Connor, 2001 WI 49, ¶ 27, 243 Wis. 2d 279, 627 N.W.2d 182 ("In its exercise of discretion, the court 'must attempt to strike the appropriate balance between the countervailing policy considerations that consistently pull at either end of the . . . spectrum.'"); State v. White, 2000 WI App 147, ¶ 4, 237 Wis. 2d 699, 615 N.W.2d 667 (concluding that trial courts "must exercise discretion on a case-by-case basis in order to balance and give effect to the [competing] goals"). That did not happen in this case because the trial court felt constrained by Wis. Stat. § 767.325(1)(b)2 to maintain the status quo. It thus gave no weight whatsoever to the express statutory preferences favoring joint custody and the maximization of placement time with each parent, which the legislature has determined to be in the best interests of children absent indications to the contrary. Because of this omission, which I conclude is contrary to the express mandate of § 767.325(5m), I would reverse and remand for further proceedings on Palmersheim's motion.

¶ 62. In sum, I conclude that the statutes under review indicate legislative preferences for certain outcomes which may or may not be in conflict in a given modification proceeding. Instead of simply ighoring pertinent legislative pronouncements, as the lead opinion's holding does, I believe a trial court must be permitted to consider whether the parties have rebutted the presumptions or directives weighing against their respective positions. I believe that this interpretation avoids the flaw in the lead opinion's analysis of ignoring express statutory directives, and it gives life to the legislative intent underlying the provisions of both Wis. Stat. §§ 767.24 and 767.325. Finally, because the lead opinion has concluded otherwise, and the arguably conflicting legislative pronouncements present an issue of statewide importance, I respectfully recommend that the supreme court accept review should Palmersheim request it.

       All references to the Wisconsin Statutes will be to the 2001-02 version unless otherwise noted.

       Palmersheim argues tangentially that the circuit court erroneously exercised its discretion by not awarding him equal placement, claiming Wis. Stat. § 767.24(4) requires the court to maximize his physical placement time with his son. The heart of this case centers on whether the circuit court applied the proper legal standard in determining what was in Nicholas's best interest. Palmersheim pays scant attention to the physical placement aspect of the case; thus, our inquiry focuses on whether the circuit court erred in its application of the law to the facts of this case. In any event, the circuit court generally addressed the factors in Wis. Stat. § 767.24(5) in determining whether a change in custody and physical placement was in Nicholas's best interest. We will not disturb the circuit court's findings of fact unless the record clearly does not support them.

       Wisconsin Stat. § 767.24(2)(am) reads, "The court shall presume that joint legal custody is in the best interest of the child."

       Wisconsin Stat. § 767.325(5m) provides, "In all actions to modify legal custody or physical placement orders, the court shall consider the factors under s. 767.24(5) and shall make its determination in a manner consistent with s. 767.24."

       We deal here with the provision governing modification motions after two years. The logical extension of Palmersheim's argument is that the joint custody presumption also trumps Wis. Stat. § 767.325(l)(a). That subsection plainly intends to foster stability for children by setting a very high bar for custody changes within two years of the original order. The moving party must, with some exceptions, show "by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child ...." Id. This status quo presumption'is much stronger than the one at issue here and, under Palmersheim's approach, even more "inconsistent" with Wis. Stat. § 767.24.

       The legislature is delegated the task of promulgating laws and, in the process, must do so in a rational and logical manner so as to avoid absurd results. The legislature neglected this task by creating a new presumption without explicitly eliminating or repealing the old one. Palmersheim strains to reconcile these conflicting presumptions by suggesting that the presumption of joint legal custody rebuts the presumption of maintaining the status quo. We cannot find any reference in the legislative history to suggest the legislature intended to maintain two statutory presumptions, with the joint legal custody presumption rebutting the status quo presumption.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The guardian ad litem recommended joint legal custody and increased physical placement with Palmersheim. Although he did not file a separate brief, the guardian ad litem has informed us that he supports Palmersheim's arguments on appeal. The social worker also recommended joint custody and increased placement with Palmersheim.

        See 1999 Wis. Act 9, § 3065ck.

       Although the lead opinion finds Wis. Stat. § 767.24(2)(am), and apparently § 767.24(4)(a)2, inapplicable to modification proceedings, it finds § 767.24(5) to be "plainly applicable" to modifications. Lead opinion at ¶ 20. I find no language in either § 767.24 or Wis. Stat. § 767.325(5m) that allows us to pick and choose from among the provisions of § 767.24 those with which modification decisions must be consistent and those which may be ignored.

        See, e.g., Wis. Stat. § 767.24(2) (b)2, which permits a court, absent agreement of the parties, to order sole legal custody to one of them "only" if certain circumstances exist.

       I recognize that, while Wis. Stat. § 767.24(2) (am) creates an express presumption in favor of joint custody, § 767.24(4)(a)2 creates no similar presumption in favor of equal placement time for each parent. We concluded in Keller v. Keller, 2002 WI App 161, ¶ 12, 256 Wis. 2d 401, 647 N.W.2d 426, that § 767.24(4)(a) does not create a presumption in favor of equal placement. (We have recently reaffirmed that interpretation and concluded further that a parent enjoys no constitutional right to equal placement following divorce or estrangement from the other parent. See Arnold v. Arnold, 2004 WI App 62, 270 Wis. 2d 705, 679 N.W.2d 296, review denied, 2004 WI 50 (Wis. Apr. 20, 2004) (No. 03-1547), and Lofthus v. Lofthus, 2004 WI App 65, 270 Wis. 2d 705, 679 N.W.2d 296, review dismissed, 2004 WI 50 (Wis. Mar. 10, 2004.) (No. 03-1754). We remanded in Keller to allow the trial court to consider whether, under a proper interpretation of § 767.24(4)(a)2, the modification sought would be in the best interest of the child and whether the continuity presumption under Wis. Stat. § 767.325(l)(b) had been overcome. See

        Keller, 256 Wis. 2d 401, ¶ 13. We did not say or even suggest, however, that the continuity presumption precluded the court from even considering the directive in § 767.24(4)(a)2 in favor of maximizing placement time with each parent. Rather, our instructions in Keller are consistent with what I believe to be the proper disposition in this case: the trial court should consider both the continuity presumptions under § 767.325(1)(b) and the directives of § 767.24 in deciding Palmersheim's modification motion.

       This is especially true for a parent like Palmersheim who did not have the benefit of the 1999 legislative changes at the time of the initial custody and placement determinations. My reading of these statutes thus eliminates any equal protection concerns.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    Herder Hallmark Consultants, Inc., Plaintiff-Respondent, v. Regnier Consulting Group, Inc., and Steven J. Regnier, Defendants-Appellants.

    Court of Appeals

      No. 03-1917.

      Submitted on briefs February 11, 2004.

    Decided June 10, 2004.

    2004 WI App 134
    (Also reported in 685 N.W.2d 564.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Gary L. Dreier of First Law Group, S.C., Stevens Point.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gerald M. O'Brien of Anderson, O'Brien, Bertz, Skrenes & Golla, Stevens Point.
    Before Deininger, PJ., Dykman and Higginbotham, JJ.

       Petition to review denied 9-1-04.

   DYKMAN, J.

¶ 1. Regnier Consulting Group, Inc. (Regnier, Inc.) and Steven Regnier appeal from an order granting partial summary judgment to Herder Hallmark Consultants, Inc. (Herder, Inc.) declaring that there was an express contract between Herder, Inc. and Regnier. We granted Regnier, Inc. and Regnier's petition for leave to appeal to clarify additional proceedings in this matter. Regnier and Regnier, Inc. assert that the trial court erred by concluding that an implied purchase agreement existed between the parties. They argue that indefiniteness voids any agreement since the parties did not agree upon an essential term, the sale price. We conclude that the parties' conduct evidences a contract for the sale of assets and affirm.

FACTS

¶ 2. Herder, Inc. was an actuarial business. John Herder owned all the stock in Herder, Inc. Herder, Inc. employed Regnier as an actuary. Herder informed Reg-nier that he planned to terminate his business on July 1, 2001. Herder and Regnier discussed the sale of Herder, Inc.'s assets to Regnier. On June 30, 2001, Regnier sent an announcement to Herder, Inc.'s clients that read: "Herder Hallmark Consultants, Inc. is Pleased to Announce A Change in the Management of the Firm." It stated that "[e]ffective July 1, 2001, STEVEN J. REGNIER will be taking over the consulting operation." Herder told some clients that Regnier would be willing to provide actuarial services for them.

¶ 3. On July 5, 2001, Regnier formed Regnier, Inc., which is an actuarial business providing services similar to those provided by Herder, Inc. After Herder, Inc. closed on July 1st, Regnier, Inc. hired all of Herder, Inc.'s employees and took all of Herder, Inc.'s files and customer lists, except for a small number that stayed with Herder. It used Herder, Inc.'s computers, furniture, and trade secrets, among other assets. It also rented and occupied the same office location that Herder, Inc. had occupied.

¶ 4. Despite numerous proposals for calculating a fair purchase price, the parties did not reach an agreement about the sale price of the assets. Correspondence between the parties' attorneys in November 2001 establishes that the parties were considering using an independent appraiser selected by each of the parties' designated accountants to determine the sale price. However, in June 2002, Regnier decided that he would not be bound by a third party's valuation of the business.

¶ 5. Eventually, Herder, Inc. sued Regnier, Inc. and Regnier for breach of contract, among other things. The parties dispute whether they formed a contract whereby Regnier would purchase Herder, Inc.'s assets for a reasonable price. At trial, both parties moved for partial summary judgment. The trial court awarded Herder, Inc. "summary judgment declaring that there is an express agreement between [Herder, Inc.] and defendant Regnier regarding the sale of [Herder, Inc.'s] business to Regnier as of 7/1/01, and declaring that there is an implied agreement between the parties that the sale be for a fair price." It left the sale price to be determined by a jury at trial. Regnier, Inc. and Regnier appeal.

DISCUSSION

¶ 6. We review a trial court's decision on a motion for summary judgment de novo, applying the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate if there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2001-02). For the purposes of partial summary judgment, the parties only dispute whether vagueness or indefiniteness void any agreement between the parties because they did not agree on a purchase price. We may decide as a matter of law whether the essential terms of the contract were definite. Mgmt. Comp. Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 178, 557 N.W.2d 67 (1996).

¶ 7. Regnier, Inc. and Regnier contend a contract cannot exist when the parties have not agreed upon an essential term such as the sale price. Citing Household Utilities, Inc. v. Andrews, Co., Inc., 71 Wis. 2d 17, 28, 236 N.W.2d 663 (1976), they argue that Herder, Inc. must prove a meeting of the minds as to the purchase price before Regnier, Inc. or Regnier can be held liable for breaching a contract to pay for Herder, Inc.'s assets. They contend that the alleged agreement between the parties is so indefinite and vague that it cannot constitute a contract. They argue that Herder, Inc.'s remedy lies in quantum meruit.

¶ 8. We agree that ordinarily a contract must be definite and certain as to its basic terms and requirements to be enforceable. Petersen v. Pilgrim Vill., 256 Wis. 621, 624, 42 N.W.2d 273 (1950). Certainty of contract terms concerns whether the parties had a meeting of the minds. Dunlop v. Laitsch, 16 Wis. 2d 36, 42, 113 N.W.2d 551 (1962). Wisconsin has recognized the traditional notion that definiteness requires mutual assent via a "meeting of the minds." Mgmt. Comp. Servs., Inc., 206 Wis. 2d at 178-79 (citations omitted). The supreme court has clarified that "a literal 'meeting of the minds' is not required." Id. at 180-81. See also Kernz v. J.L. French Corp., 2003 WI App 140, ¶ 20, 266 Wis. 2d 124, 667 N.W.2d 751, review denied, 2003 WI 140, 266 Wis. 2d 62, 671 N.W.2d 849 (Wis. Oct. 27, 2003) (No. 02-1291) ("However, it is well established that an actual meeting of the minds is not a prerequisite to an enforceable contract."). Instead, we give effect to the parties' intent to contract if such intent is discernible from their conduct or the contract language:

If parties evidently intended to enter a contract, the trier of fact should not frustrate their intentions, but rather should attach a "sufficiently definite meaning" to the contract language if possible. We have previously decided: "Even though the parties have expressed an agreement in terms so vague and indefinite as to be incapable of interpretation with a reasonable degree of certainty, they may cure this defect by their subsequent conduct and by their own practical interpretation." Nelson v. Farmers Mut. Auto. Ins. Co., 4 Wis. 2d 36, 51, 90 N.W.2d 123 (1958). Therefore, if the jury can determine the parties' intentions, "indefiniteness disappears as a reason for refusing enforcement." As Judge (later Justice) Cardozo has stated, "Indefiniteness must reach the point where construction becomes futile."

Mgmt. Comp. Servs., Inc., 206 Wis. 2d at 179-80 (citations omitted).

¶ 9. Wisconsin's approach to contract formation accords with Corbin on Contracts:

In the process of negotiating an agreement, a term that is frequently left indefinite and to he settled by future agreement, or by some other specified method, is the price in money .... If the parties provide a practicable method for determining this price or compensation there is no such indefiniteness or uncertainty as will prevent the agreement from being an enforceable contract. The same is true if they agree upon payment of a "reasonable" price or compensation. There are cases, however, in which it is clear that the parties have not expressly or implicitly agreed upon a "reasonable price," and also have not prescribed a practicable method of determination. Where this is true, the agreement is too indefinite and uncertain for enforcement. Such cases should be rare. If the agreement is a commercial one it can be presumed that the parties as actors in the market intend a market or some other reasonable price.

1 Corbin on Contracts: Formation of Contracts, § 4.3 (Joseph M. Perillo ed., rev. ed. 1993) (citations omitted).

¶ 10. Thus, we may discern a contract where the parties conduct evidences sufficient definiteness of an intent to contract, even if an essential term is left vague or indefinite.

¶ 11. Here, the parties have not agreed upon the price of the assets transferred to Regnier, Inc. or a method for determining a price. But neither party disputes that after July 1, 2001, Regnier, Inc. used Herder, Inc.'s office space, employees, client lists, furniture, computers, goodwill, trade secrets, and other assets. Nobody disputes that neither Regnier, Inc. nor Regnier have paid Herder, Inc. for any of these assets. In his deposition, Regnier admitted that these assets were valuable to him.

¶ 12. In his affidavit in support of Herder, Inc.'s motion for summary judgment, Herder averred that he found two documents on the hard drive of Regnier's personal computer. He attached the documents as exhibits to his affidavit. The first document reads, in pertinent part: "Mr. Regnier is the President and owner of Regnier Consulting Group, Inc. Mr. Regnier purchased the actuarial consulting business of Herder Hallmark Consultants, Inc. July 1, 2001." The second document concludes with "Mr. Regnier purchased Herder Hallmark Consultants, Inc. on July 1, 2001."

¶ 13. In response, Regnier averred that "the letters referred to [in Herder's affidavit] ... did not state a purchase price or a formula to determine the purchase price; these were matters of negotiations, along with other important items as of the time the subject letters were prepared by me." Both Regnier, Inc. and Regnier argue that these documents only evidence continued negotiations, not a contract. They contend that if a contract is formed for "fair value" then contract law would be subsumed into the law of unjust enrichment.

¶ 14. We conclude that there is no genuine issue of material fact as to whether Regnier accepted Herder, Inc.'s assets and whether those assets were valuable to him. Regnier stated that he purchased Herder, Inc. in the letters found on his computer. Neither Regnier, Inc. nor Regnier averred any evidence that refutes the letters. Regnier's affidavit merely notes that the agreement lacked a definite sale price.

¶ 15. We also conclude that the conduct of the parties cures any indefiniteness as to the price of the assets. Under Management Computer Services, Inc., we "attach a 'sufficiently definite meaning' to the contract language if possible." Mgmt. Comp. Servs., Inc., 206 Wis. 2d at 179 (citation omitted). Specifically, Regnier, Inc.'s acceptance of numerous, valuable assets belonging to Herder, Inc. evidences that the parties intended Regnier, Inc. to purchase some, if not all, of Herder, Inc.'s assets when Herder, Inc. closed its business. Moreover, all of the parties' negotiations attempted to reach a fair contract price. Neither Regnier, Inc. nor Mr. Regnier has submitted any evidence that rebuts the presumption that "parties as actors in the market intend a market or some other reasonable price." Corbin, supra, ¶ 9. The lack of an agreed upon sale price does not void the parties' contract. We reject the contention that Herder, Inc. needed to show that the parties agreed upon the precise value of the assets for a contract to be formed.

¶ 16. Finally, Regnier, Inc. and Regnier assert that the trial court erred by considering settlement negotiations in concluding that the implied agreement existed, and by concluding that an implied agreement was not timely pled by Herder, Inc. But this argument is undeveloped. Ordinarily, we will not address undeveloped arguments and decline to do so here. State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992). Our review of the complaint establishes that Herder, Inc. pled a breach of contract. Accordingly, the cause of action was timely pled.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


author: VERGERONT, J.

text:
    Patricia A. Steiner, Plaintiff-Co-Appellant, John M. Steiner, Plaintiff, Unity Health Plans Ins. Corp. and Healthcare Financing Administration, Involuntary-Plaintiffs, v. Wisconsin American Mutual Insurance Company, Defendant-Respondent, Robert Steiner and Mt. Morris Mutual Ins. Co., Defendants-Appellants.

    Court of Appeals

      No. 03-1959.

      Submitted on briefs January 13, 2004.

    Decided June 10, 2004.

    2004 WI App 135
    (Also reported in 685 N.W.2d 831.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Jeffrey T. Nichols and Stacy K. Luell, Crivello, Carlson & Mentkowski, S.C., Milwaukee.
    On behalf of the plaintiff-co-appellant, the cause was submitted on the briefs of Gregory R. Wright, Gregory R. Wright Law Offices, S.C., Montello.
    On behalf of the defendant-respondent, the cause was submitted on the briefs of Timothy J. Yanacheck and Ward I. Richter, Bell, Gierhart & Moore, S.C., Madison.
    Before Deininger, PJ., Vergeront and Higgin-botham, JJ.

       Petition to review granted 9-16-04.

   VERGERONT, J.

¶ 1. In this personal injury action Patricia Steiner alleges that Steiner Corporation owned the resort at which she was injured. The circuit court concluded that Steiner Corporation did not own the resort at the time of her accident and granted summary judgment in favor of Wisconsin American Mutual Insurance Company (WAMIC), Steiner Corporation's insurer. Based on the record of the foreclosure proceeding against Steiner Corporation, the relevant common law, and our construction of Wis. Stat. § 846.30 (2001-02), we agree with the circuit court that Steiner Corporation did not own the resort on the date of the accident. We therefore affirm.

BACKGROUND

¶ 2. On October 15, 1999, Patricia was injured when she fell down a dry well at a resort on Castle Rock Lake in Adams County. Robert Steiner had been draining the waterlines for cabins on the resort that day, and had removed the cover for the dry well, leaving only a sheet of styrofoam over the hole. Patricia walked near the dry well, lost her footing, and fell down the hole. Patricia and her husband, John Steiner, filed a complaint against WAMIC as the insurer of Steiner Corporation, alleging that Steiner Corporation owned the resort at the time of the accident and was negligent in failing to properly cover the hole in which Patricia fell.

¶ 3. WAMIC moved for summary judgment arguing among other points that Steiner Corporation did not own the resort at the time of the accident, and therefore Robert could not have been acting as Steiner Corporation's servant at that time. WAMIC submitted documents from a foreclosure action against Steiner Corporation to show the corporation had no interest in the property at the time of the accident.

¶ 4. The record of the foreclosure action shows the following. The resort had originally been purchased in the 1950s by Patricia, John, and John's brother, Robert. For purposes of this appeal, it is undisputed that in the mid-1990s the three owners sold the property to Steiner Corporation by a series of land contracts. By 1998 Steiner Corporation had stopped making payments on the land contracts. Patricia and Robert filed suit to foreclose on the land contracts and take the property back for nonpayment.

¶ 5. In the foreclosure proceeding, the circuit court, with the Honorable Duane Polivka presiding, held a hearing on September 7,1999, on the plaintiffs' motion for default judgment against Steiner Corporation. Because of a tax hen on the property, the parties and court agreed that a foreclosure and sheriffs sale was preferable to a strict foreclosure. The court made an oral ruling setting a thirty-day period for redemption and the amount required to be paid to redeem the property. The closing comments of the court show it anticipated that a confirmation of the sale would follow.

¶ 6. However, the next documents in the record are "Findings of Fact and Conclusions of Law" and "Judgment," entered on October 19, 1999, which make no reference to a sheriffs sale but instead provide for strict foreclosure. The judgment states that if the defendants do not pay the specified sum by October 7,1999, all their right, title, and interest to the property will cease to exist and title will vest in the plaintiffs. The final document from the foreclosure record is a "Final Judgment" entered on December 1,1999, stating that no payment had been received, confirming the judgment of October 19, 1999, "in all respects," and stating that "all right, title and interest of Defendants ... shall cease to exist." This final judgment describes the judgment entered on October 19, 1999, as "providing for the strict foreclosure of [the land contracts, and] providing the Defendants shall have thirty (30) days from October 19, 1999 to pay... the amount due."

¶ 7. The circuit court in this action, Judge Polivka again presiding, concluded that under strict foreclosure law, Steiner Corporation lost all right and title to the property when it failed to pay the full amount due before the end of the redemption period, which, the court stated, was October 7, 1999. The court decided that, because Steiner Corporation no longer owned the property, it "had no basis on which to employ Robert Steiner and no right to control his activities." Accordingly, the court granted summary judgment in favor of WAMIC and dismissed the claim against it. Patricia, Robert, and Mt. Morris appeal from that judgment.

DISCUSSION

¶ 8. We review a summary judgment de novo, applying the same standard as the trial court. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375 (Ct. App. 1998). A party is entitled to summary judgment if there are no genuine issues of material fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). In deciding whether there are genuine issues of material fact, the court is to draw all reasonable inferences in favor of the nonmoving party. Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 32, 236 Wis. 2d 435, 613 N.W.2d 142. Whether an inference is reasonable is a question of law, and if there is only one reasonable inference, then the drawing of that inference is also a question of law. Groom v. The Professionals Ins. Co., 179 Wis. 2d 241, 249, 507 N.W.2d 121 (Ct. App. 1993).

¶ 9. The appellants argue that the circuit court erred in concluding that Steiner Corporation no longer owned the resort on October 15, 1999, the day of the accident. Robert and Mt. Morris contend the judgment of strict foreclosure was not entered against Steiner Corporation until October 19, and Steiner Corporation had thirty days from that date to redeem the property, or, under Wis. Stat. § 846.30, at least seven days from October 19. In the alternative, they argue, along with Patricia, that, regardless of the date on which the redemption period ended, under § 846.30 the judgment was not "final" until a confirmation of the judgment was entered on December 1,1999. Thus, they assert, Steiner Corporation still owned the resort until the judgment was confirmed on December 1, 1999.

¶ 10. WAMIC responds that the circuit court correctly decided the period of redemption expired on October 7,1999, and therefore Steiner Corporation no longer owned the resort after that date. As WAMIC construes Wis. Stat. § 846.30, the statute does not alter this result.

¶ 11. A resolution of the dispute over Steiner Corporation's ownership on October 15, 1999, requires that we analyze the foreclosure proceedings in light of the relevant common law and Wis. Stat. § 846.30. The question of the proper interpretation of § 846.30 presents a question of law, which we review de novo. See State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). We begin with the language of the statute, and if that yields a plain meaning, we apply that meaning. State ex rel. Kalal v. Cir. Ct. for Dane County, 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110. A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. Id., ¶ 47. If a statute is ambiguous, we may look beyond the language to extrinsic sources to resolve the ambiguity. Id., ¶ 50.

1. Background Law on Land Contracts and Remedies

¶ 12. Under a land contract, the vendor holds legal title while the vendee holds equitable title. See City of Milwaukee v. Greenberg 163 Wis. 2d 28, 36-39, 471 N.W.2d 33 (1991). The vendee has "full rights" of ownership over the property as well as liabilities—for instance, for taxes assessed on the property. Id. at 37-38. The vendee is also generally liable to third parties injured on the property. See McCarty v. Covelli, 182 Wis. 2d 342, 345-46, 514 N.W.2d 45 (Ct. App. 1994).

¶ 13. There are several remedies available to a vendor if a vendee defaults on a land contract. Kallenbach v. Lake Publ'ns, Inc., 30 Wis. 2d 647, 651, 142 N.W.2d 212 (1966). The two remedies relevant in this case are specific performance and strict foreclosure. Specific performance is similar to a mortgage foreclosure proceeding that results in a sheriffs sale of the property. James J. Vance, Titles to Real Estate § 18.04D (1998 revised ed.). Out of the proceeds from the sale of the property, the land contract vendor is entitled to the contract price and the vendee is awarded the remainder; if the property is sold for less than the contract price, the vendee is liable for the deficiency. Kallenbach, 30 Wis. 2d at 651. In a strict foreclosure, there is no sale. Rather, the circuit court sets a "period of redemption" during which the vendee has the ability to pay the remainder due on the contract. Id. at 652-54. If the vendee fails to pay in full the equitable title passes to the vendor. Id.

2. Redemption Period

¶ 14. Robert and Mt. Morris argue that the circuit court's September 7, 1999 oral ruling opted for the remedy of specific performance by proceeding to a sheriffs sale, instead of the remedy of strict foreclosure, and that a judgment of strict foreclosure was not granted until October 19. They argue that, because there was no sale, the Steiner Corporation retained its equitable interest in the property after the expiration of the thirty-day period of redemption set for the sale, and the October 19 judgment of strict foreclosure set a second period of redemption, which did not expire until November 18, 1999. For this second period of redemption, they rely on the December 1 final judgment, which describes the October 19 judgment as providing for thirty days from October 19, 1999, in which to pay the amount due.

¶ 15. We agree with these appellants that the court's September 7 oral ruling and October 19 judgment are inconsistent in that the former contemplated a sheriffs sale and the latter provides for strict foreclosure. However, we conclude the only reasonable inference from the record is that the parties agreed to change the remedy to strict foreclosure sometime after September 7 and before the judgment was entered on October 19, and also agreed to use the same thirty-day redemption period established by the court for the sale. The October 19 findings of fact and conclusions of law and the October 19 judgment both refer to the hearing on September 7 as the basis for the findings and conclusions. The findings and conclusions include the finding that "thirty (30) days commencing as of September 7, 1999, is a reasonable time for the Defendants to perform said contract"; the conclusion that the defendants "shall perform the said Land Contract on or before October 7, 1999"; and the conclusion in paragraph 15 that "judgment of strict foreclosure shall provide that should the Defendants not perform said Land Contract within the time specified above, Defendants ... shall be forever foreclosed from any right, title and interest in the land described herein and title shall vest in the name of the Plaintiffs herein." As we have noted above, the October 19 judgment repeats October 7 as the date by which payment must be made and the provisions of paragraph 15 of the findings and conclusions. There is no reasonable way to read these documents, even in light of the transcript of the September 7 hearing, as other than establishing October 7 as the end of the redemption period for the remedy of strict foreclosure.

¶ 16. It is true that the use of the future tense in conjunction with the October 7 date (i.e., "shall perform the said Land Contract on or before October 7,1999") is incongruent with the October 19 date of entry of the findings of fact and conclusions of law and the judgment. However, that is simply a function of when the court signed and entered the documents. It does not create an ambiguity concerning the contents, much less establish unambiguously that the redemption period was to begin on October 19, as the appellants contend.

¶ 17. The December 1 final judgment injects another inconsistency, but, again, we conclude that no reasonable inference supports the appellants' position. This final judgment has an internal inconsistency. It states that "the original judgment entered by this court on October 19, 1999 ... is confirmed in all respects," but also states the defendants had thirty days from October 19, 1999, in which to pay the amount due, which contradicts the October 19 judgment's unambiguous language that the period of redemption was to end October 7. The only reasonable explanation for this discrepancy is that the period of redemption described in the December 1 final judgment is a mistake. This final judgment, when read together with the October 19 judgment, is plainly intended to confirm the October 19 judgment because there had been no payment. It cannot reasonably be read to confirm that judgment and at the same time alter the redemption period plainly established in that judgment.

¶ 18. Robert and Mt. Morris argue in the alternative that the period of redemption could not have ended October 7, 1999, because, under Wis. Stat. § 846.30, Steiner Corporation was entitled to at least a seven-day redemption period from the date of entry of the judgment of strict foreclosure, which was October 19.

¶ 19. Wisconsin Stat. § 846.30 provides:

Redemption period for land contracts. If a court finds that the purchaser under a land contract is obligated to make certain payments under that land contract, that the purchaser has failed to make the required payments and that the vendor is entitled to a judgment of strict foreclosure, the court shall set a redemption period of at least 7 working days from the date of the judgment hearing or, if there is no hearing, from the date of the entry of the judgment order. No judgment of strict foreclosure is final until the court enters an order after the expiration of the redemption period confirming that no redemption has occurred and making the judgment of strict foreclosure absolute.

(Emphasis added.) Under the plain language of the statute, if there is a judgment hearing, the redemption period must be at least seven days from that date. We have already concluded that the October 19 findings of fact and conclusions of law and the judgment plainly show that the parties agreed, after the fact, to treat the September 7 hearing as the date on which the court granted the request for a judgment of strict foreclosure and ordered a redemption period of thirty days from September 7. While it may be that a party to that proceeding could have objected to that agreement if that party's interests were adversely affected, the record does not indicate that any party did. We conclude that § 846.30 does not require a redemption period beyond October 7, 1999.

3. Finality under Wis. Stat. § 846.30

¶ 20. Patricia, Robert, and Mt. Morris argue that, regardless of the date on which the redemption period expired, under Wis. Stat. § 846.30 Steiner Corporation's ownership interest in the resort was not extinguished until December 1, 1999, when the circuit court entered the final judgment confirming that the redemption period had ended without payment in full by Steiner Corporation. The appellants argue that, because the statute requires a confirmation order before the strict foreclosure is "final," ownership in the resort could not have been transferred before the confirmation order was entered on December 1. WAMIC responds that § 846.30 was enacted to put an end to the uncertainty existing under common law by requiring a final order confirming nonpayment, not to change the substantive rights of parties to land contracts that had long existed at common law. In WAMIC's view, under common law Steiner Corporation's rights in the resort were terminated when the redemption period expired on October 7, 1999, and the date on which the final judgment was entered does not affect that result.

¶ 21. We conclude that both constructions of Wis. Stat. § 846.30 are reasonable. An order making a strict foreclosure judgment "final" may be reasonably construed to be an order that completely resolves the dispute between the vendor and vendee by transferring title to the vendor. On the other hand, "final" can reasonably be construed as providing finality by confirming a transfer of title that has already occurred. The statute is therefore ambiguous.

¶ 22. As a first step in resolving this ambiguity, we examine the relevant common law existing at the time Wis. Stat. § 846.30 was enacted in 1995. In Exchange Corp. v. Kuntz, 56 Wis. 2d 555, 561, 202 N.W.2d 393 (1972), the supreme court described the judgments in strict foreclosure actions as

somewhat unusual, in that basically they grant relief from a forfeiture on equitable grounds and declare the rights of the parties upon certain conditions .... [T]he judgment... becomes final or absolute only upon the expiration of the period of redemption. Such a judgment may be considered as an interlocutory judgment which automatically becomes final upon the expiration of the period of redemption without any further motion or decree making it absolute. If the record is to reflect the fact the vendee did not redeem, an order may be entered finding the vendee did not meet the conditions; sometimes an affidavit of such fact is filed. But if the order is used, it would normally not confirm the title but merely reaffirm the legal title in the vendor.

(Emphasis added.) Based on these considerations the court held that, while the circuit court had the authority during the redemption period to extend it, once the period had expired, the court could not extend it, unless in an unusual case the court had reserved that power. Id. at 561-62. Thus, prior to the enactment of § 846.30, if the requisite payment was not made by the end of the redemption period, all title in the vendee ceased and absolute title vested in the vendor without any order required to confirm the fact of nonpayment.

¶ 23. We agree with WAMIC that accepting the appellants' construction of Wis. Stat. § 846.30 would be a significant change from common law, in that it would alter the time at which title in the vendee ceases and absolute title vests in the vendor. A change in the common law must be clearly expressed. Gaugert v. Duve, 2001 WI 83, ¶ 41, 244 Wis. 2d 691, 628 N.W.2d 861. Section 846.30 clearly expresses the requirement of a confirming order to make a strict foreclosure judgment final — a requirement that did not exist at common law. However, the statute does not clearly express that the date on which title transfers is delayed until that order is entered. Thus, this rule of statutory construction favors WAMIC's construction.

¶ 24. Three additional considerations favor WAMIC's construction. First, adoption of the appellants' construction would mean that there is an indefinite period of time from the end of the redemption period, now mandated by statute, until the transfer of title. During this time the vendee would no longer have the right to redeem but would still own the property and presumably still have the obligations and liabilities of the owner. This is not a logical result.

¶ 25. The second point, related to the first, is that the date on which the confirming order is entered would not be tied, either by statute or by practical realities, to the actual situations of the vendor and vendee. Instead it might depend simply on when an order is presented to the court to sign, or when the court is able to sign and enter the order.

¶ 26. Finally, WAMIC's construction does not make the confirming order meaningless, as the appellants contend. Although the confirming order does not establish the date of transfer of title, it does add a measure of certainty and predictability that did not exist at common law. Thus, for example, parties interested in ascertaining the chain of title to property can rely on the confirming order as proof that the vendee indeed failed to redeem before the end of the period of redemption.

¶ 27. Because we construe Wis. Stat. § 846.30 to leave unchanged the common law rule that absolute title vests in the vendor at the end of the redemption period if payment in full has not been made, we conclude that Steiner Corporation lost its equitable title in the resort on October 7, 1999, not December 1, 1999.

CONCLUSION

¶ 28. Based on the undisputed facts, we conclude that under the judgment entered on October 19, 1999, the period of redemption for the judgment of strict foreclosure against Steiner Corporation ended October 7, 1999. We further conclude that under common law, Steiner Corporation's equitable title in the resort passed to Patricia, John, and Robert Steiner on that date. Therefore, Steiner Corporation did not own the resort on October 15,1999, and is not liable for injuries sustained by Patricia on that day. Accordingly, we affirm the circuit court's decision to grant Steiner Corporation's motion for summary judgment.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Patricia and John Steiner subsequently amended their complaint to include a negligence claim against Robert Steiner and Mt. Morris Mutual Insurance Company, Robert's insurer. This appeal concerns only Patricia and John's claim against WAMIC.

       We note that both the findings of fact and conclusions of law and the judgment bear the typed date "September _, 1999," and that someone (presumably the court when signing them) lined through "September" and wrote in "October 19."

       Wisconsin Stat. § 846.30 was enacted by 1995 Wis. Act 250. The first sentence of § 846.30 mandates a period of redemption for strict foreclosures of land contracts, which had not before then been required by statute. According to the Legislative Reference Bureau analysis, this provision was intended to bring strict foreclosure actions into accord with mortgage foreclosure actions. Legislative Reference Bureau Drafting File for 1995 Wis. Act 250, Analysis by the Legislative Reference Bureau of 1995 A.B. 579. Our analysis concerns only the second sentence of the statute.

       We acknowledge that our construction may raise questions on the effect of the failure to have a confirming order entered. Those questions are not before us, because a confirming order was entered here. However, we are satisfied that it is more reasonable to construe the statute as leaving the time of the transfer of title unchanged even if that construction may present questions about the precise effect of the lack of a confirming order.

       Because of this conclusion, we need not address the appellants' arguments that Robert was acting as an employee or servant of Steiner Corporation at the time of the accident and that Steiner Corporation is liable for Patricia's injuries under the "safe place" statute, Wis. Stat. § 101.11.