D. J. W. v. M. N. Z.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 3, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP753 Cir. Ct. No. 2022GN181

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE GRANDPARENTAL VISITATION OF A. Z. AND A. Z.:

D. J. W.,

PETITIONER-RESPONDENT,

V.

M. N. Z.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
TIMOTHY A. HINKFUSS, Judge. Affirmed.

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

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP753

¶1 PER CURIAM. Dawn1 filed a petition seeking grandparent
visitation with her two minor grandchildren, Alice and Andrew. The children’s
mother, Megan, now appeals from the circuit court’s order granting Dawn’s
petition. Megan argues that the court lacked personal jurisdiction over her and
that it failed to apply the correct legal standard when ruling on Dawn’s petition.
We reject these arguments and affirm.

BACKGROUND

¶2 Alice and Andrew—currently ages ten and eight, respectively—are
the children of Megan and her late husband, Adam, who died in 2021. Dawn is
Adam’s mother and the children’s paternal grandmother. In May 2022, Megan
relocated with the children from Green Bay, Wisconsin, where Dawn resides, to
Las Vegas, Nevada.

¶3 In November 2022, Dawn filed a petition for grandparent visitation
with Alice and Andrew, pursuant to WIS. STAT. § 48.9795(12) (2023-24).2 In the
petition, Dawn alleged that she has had a “very close relationship” with Alice and
Andrew throughout their lives, but when Megan moved to Las Vegas in
May 2022, Megan refused to provide Dawn with her new address and then cut off
all contact with Dawn. Dawn alleged that it would be in the children’s best
interests to allow their relationship with her to continue “by having regular
guaranteed contact.” Dawn therefore asked the circuit court to grant her
“meaningful periods of placement” with the children.

1
For ease of reading, we refer to the individuals involved in this confidential appeal
using pseudonyms, rather than their initials.
2
All references to the Wisconsin Statutes are to the 2023-24 version.

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¶4 On the same date that Dawn’s petition was filed, a guardian ad litem
(GAL) was appointed for Alice and Andrew. In a report filed with the circuit
court on January 11, 2023, the GAL recommended that the court grant Dawn
“regular scheduled FaceTime” with the children, one week of visitation with the
children in Green Bay each summer, and three days of visitation with the children
in Las Vegas during their winter break from school.

¶5 On January 12, 2023, an attorney filed a notice of appearance in this
case on Megan’s behalf. According to CCAP entries,3 Megan appeared by phone
at a hearing on January 19, 2023, and her attorney appeared by video. During that
hearing, both sides made statements regarding the GAL’s report, and the hearing
was then adjourned to March 16, 2023.

¶6 On March 14, 2023, Megan’s attorney filed a letter with the circuit
court explaining Megan’s position regarding grandparent visitation. The letter
stated that Megan “believes that visitation with [Dawn] is in the best interests of
the minor children, however, she is not comfortable with them traveling across the
country and being away from home for an extended amount of time.” The letter
further stated that Megan “does not oppose weekly ‘FaceTime’” between Dawn
and the children and “is open to periodic visits with [Dawn] in Las Vegas.” The
letter asked the court to “enter a visitation order consistent with [Megan’s]
wishes.”

3
CCAP, which is an acronym for Wisconsin’s Consolidated Court Automation
Programs, is an online website that contains information entered by court staff. Kirk v. Credit
Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d 522. We may take
judicial notice of CCAP records. See id.

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¶7 Megan subsequently appeared by phone at the March 16, 2023
hearing, and her attorney was present in court. During the hearing, the parties
agreed to participate in mediation. In May 2023, Megan moved with the children
from Las Vegas to South Carolina. Megan subsequently appeared by phone at a
status conference on June 8, 2023, and her attorney appeared by video. A
contested hearing on Dawn’s petition for grandparent visitation was later
scheduled for November 22, 2023.

¶8 On October 20, 2023, prior to the contested hearing, Megan filed a
motion to dismiss Dawn’s petition for grandparent visitation for lack of personal
jurisdiction. Megan asserted that the circuit court lacked personal jurisdiction over
her because she was never personally served with Dawn’s petition and no affidavit
of personal service or substitute service had been filed with the court. The court
orally denied Megan’s motion to dismiss during a hearing on October 27, 2023.

¶9 The contested hearing on Dawn’s petition for grandparent visitation
took place on November 22, 2023, and January 18, 2024. During the hearing, the
circuit court heard testimony from Dawn, Megan, and Dawn’s adult grandson.
Following the first day of the contested hearing, the court entered a temporary
order granting Dawn weekly FaceTime contact with Alice and Andrew.

¶10 After the conclusion of the witnesses’ testimony on the second day
of the contested hearing, the GAL renewed his recommendation that Dawn be
granted regular FaceTime contact with Alice and Andrew, one week of visitation
in Green Bay during the summer, and three days of visitation in South Carolina
during the children’s winter break.

¶11 Dawn’s attorney generally concurred with the GAL’s
recommendation but asked the circuit court to grant Dawn 10 to 14 days of

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visitation with Alice and Andrew during the summer. Counsel acknowledged that
when a court considers whether to grant a petition for grandparent visitation, “a fit
parent gets a presumption that what they’re doing is right for the children.”
Counsel argued, however, that the court should grant Dawn her requested
visitation because Megan “has cut off a substantial relationship that is very
important to these children” and because Dawn is “a net positive in these
children’s lives.”

¶12 Megan’s attorney asked the circuit court to follow the GAL’s
recommendation, “with the exception that the … summer visitation occur in
South Carolina.” Counsel argued that Megan is a fit parent and that due process
“does not allow the state to intervene in the child rearing decision of a fit parent.”

¶13 During its oral ruling, the circuit court noted that under WIS. STAT.
§ 48.9795(12), a court may grant a petition for grandparent visitation “if the court
determines that visitation is in the best interests of the child.” The court then
agreed with Megan’s testimony at the contested hearing that requiring weekly
FaceTime contact between Dawn and the children was “too much.” The court
reasoned that requiring FaceTime contact “every other week” would be more
appropriate, under the circumstances. The court agreed with Dawn’s attorney that
Dawn should be granted 14 days of visitation with the children each summer in
Green Bay, where the family of their deceased father lives. The court also stated
that it was inclined to grant Dawn two days of visitation with the children in
South Carolina during their winter break from school, reasoning that the children
should “be there for [Megan]” at Christmas and for Megan’s birthday shortly after
Christmas.

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¶14 Ultimately, after further discussion with the parties regarding the
logistics of transporting Alice and Andrew to Green Bay in the summer, the circuit
court stated it would be in the children’s best interests to order FaceTime contact
with Dawn every other week, to grant Dawn visitation on December 29 and 30
every year in the location “where the children are living with [Megan],” and to
grant Dawn two weeks of visitation each summer in Green Bay. The court entered
a written order memorializing its oral ruling, and this appeal follows.4

DISCUSSION

I. Personal jurisdiction

¶15 As an initial matter, Megan renews her argument that the circuit
court lacked personal jurisdiction over her because she was not properly served
with Dawn’s petition for grandparent visitation. Megan argues that under WIS.
STAT. § 48.9795(4)(c)2., Dawn was required to serve her with the petition by
either personal delivery or certified mail. Megan further argues that the petition
was “never personally served” on her, “nor was any affidavit of mailing filed.”

¶16 Assuming without deciding that WIS. STAT. § 48.9795(4)(c)2.
applies to a petition for grandparent visitation under § 48.9795(12), we agree with
the GAL that Megan waived her argument that the circuit court lacked personal

4
We pause to note that the parties’ appellate briefs, and the GAL’s brief, do not comply
with WIS. STAT. RULE 809.19(8)(bm), which requires a brief to “have page numbers centered in
the bottom margin using Arabic numerals with sequential numbering starting at ‘1’ on the cover.”
Our supreme court has explained that this pagination requirement “will match the page number to
the page header applied by the eFiling system, avoiding the confusion of having two different
page numbers.” S. CT. ORDER 20-07, 2021 WI 37, 397 Wis. 2d xiii (eff. July 1, 2021). We
admonish counsel that future violations of the Rules of Appellate Procedure may result in
sanctions. See WIS. STAT. RULE 809.83(2).

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No. 2024AP753

jurisdiction over her. A court with subject matter jurisdiction may exercise
personal jurisdiction “over any person who appears in the action and waives the
defense of lack of jurisdiction over his or her person as provided in [WIS. STAT.
§] 802.06(8).” WIS. STAT. § 801.06.5 Section 802.06(8), in turn, provides that a
defense of lack of personal jurisdiction is waived if it is “neither made by motion
under this section nor included in a responsive pleading.” Sec. 802.06(8)(a)2.

¶17 Thus, a person waives any objection to personal jurisdiction if he or
she appears in an action without first raising an objection to personal jurisdiction
in a motion under WIS. STAT. § 802.06 or in a responsive pleading. See also
Artis-Wergin v. Artis-Wergin, 151 Wis. 2d 445, 452, 444 N.W.2d 750 (Ct. App.
1989) (“[A]n appearance of a defendant who does not object to the jurisdiction
over his [or her] person is an appearance and equivalent to personal service.”).
“The term ‘appearance’ is generally used to signify an overt act by which one
against whom a suit has been commenced submits himself [or herself] to the
court’s jurisdiction.” Id.

¶18 Megan indisputably appeared in the underlying circuit court case
before filing her motion to dismiss for lack of personal jurisdiction. As
summarized above, Megan’s attorney filed a notice of appearance on January 12,
2023. Thereafter, on March 14, 2023, Megan’s attorney filed a letter with the
court explaining Megan’s position regarding grandparent visitation and asking the
court to “enter a visitation order consistent with [Megan’s] wishes.” In addition,
Megan and her attorney appeared at and participated in hearings on January 19,

5
WISCONSIN STAT. chs. 801-847 apply to proceedings under WIS. STAT. ch. 48, “except
where a different procedure is prescribed by statute or rule.” David S. v. Laura S., 179 Wis. 2d
114, 143 n.26, 507 N.W.2d 94 (1993); see also WIS. STAT. § 801.01(2).

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No. 2024AP753

2023, March 16, 2023, and June 8, 2023. All of these actions occurred before
Megan filed her motion to dismiss for lack of personal jurisdiction on October 20,
2023.

¶19 We agree with the GAL that, under these circumstances, Megan
waived any objection to the circuit court’s personal jurisdiction over her. In
addition, we note that by failing to file a reply brief, Megan has conceded the
GAL’s argument in this regard. See Charolais Breeding Ranches, Ltd. v. FPC
Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (“Respondents
on appeal cannot complain if propositions of appellants are taken as confessed
which they do not undertake to refute.” (citation omitted)).6

II. Application of an incorrect legal standard

¶20 Megan also argues that the circuit court applied an incorrect legal
standard when ruling on Dawn’s petition for grandparent visitation. “Whether to
grant or deny grandparent visitation is within the circuit court’s discretion.”
Rogers v. Rogers, 2007 WI App 50, ¶7, 300 Wis. 2d 532, 731 N.W.2d 347. “We
6
We further note that the appellate record does not contain a transcript of the
October 27, 2023 hearing at which the circuit court denied Megan’s motion to dismiss for lack of
personal jurisdiction. It is the appellant’s burden to ensure that the record is sufficient for us to
review the issues raised on appeal, see State Bank of Hartland v. Arndt, 129 Wis. 2d 411, 423,
385 N.W.2d 219 (Ct. App. 1986), and we must assume that any missing materials support the
circuit court’s ruling, see Fiumefreddo v. McLean, 174 Wis. 2d 10, 27, 496 N.W.2d 226
(Ct. App. 1993).

We also note that, on appeal, Megan appears to argue that the circuit court lacked
“competency” due to Dawn’s failure to comply with WIS. STAT. § 48.9795(4)(c)2.
“Competency” pertains to a court’s ability to exercise its subject matter jurisdiction over a
particular case, not its personal jurisdiction over a party. See Village of Trempealeau v. Mikrut,
2004 WI 79, ¶9, 273 Wis. 2d 76, 681 N.W.2d 190. Furthermore, there is no indication in the
appellate record that Megan raised any argument regarding competency in the circuit court.
“Arguments raised for the first time on appeal are generally deemed forfeited.” Tatera v. FMC
Corp., 2010 WI 90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810.

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No. 2024AP753

will affirm if the circuit court examined the relevant facts, applied the proper legal
standard and, using a demonstrated rational process, reached a conclusion that a
reasonable judge could reach.” Id. Whether the court applied an incorrect legal
standard is a question of law that we review de novo. Id.

¶21 WISCONSIN STAT. § 48.9795(12) provides that, “[i]f one or both
parents of a child are deceased and the child is in the custody of the surviving
parent or any other person,” a circuit court may grant “reasonable visitation
privileges” to the child’s grandparent “if the surviving parent or other person who
has custody of the child has notice of the hearing and if the court determines that
visitation is in the best interests of the child.” However, when considering a
petition for grandparent visitation, a court must apply a presumption “that a fit
parent’s visitation decision is in the best interest of his or her child.” Michels v.
Lyons, 2019 WI 57, ¶23, 387 Wis. 2d 1, 927 N.W.2d 486; see also Rick v.
Opichka, 2010 WI App 23, ¶4, 323 Wis. 2d 510, 780 N.W.2d 159.

[A] circuit court should consider the nature and extent of
grandparent visitation only if a grandparent overcomes the
presumption in favor of a fit parent’s visitation decision
with clear and convincing evidence that the decision is not
in the child’s best interest. A circuit court should not
substitute its judgment for the judgment of a fit parent even
if it disagrees with the parent’s decision.

Michels, 387 Wis. 2d 1, ¶37.

¶22 Megan argues that the circuit court failed to apply the presumption
that her visitation decision was in the children’s best interests and instead “applied
its own assessment of what was in the best interests of the children.” She asserts
that the court “made no findings or comment regarding” her “very clearly stated
position” that Dawn’s visitation with the children should take place “where [the

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No. 2024AP753

children] currently lived.” She further asserts that there was “no evidence”
presented at the contested hearing that “conducting the visitation where the
children lived would be harmful or impair their relationship with [Dawn] to their
detriment.”7

¶23 Megan is correct that, during its oral ruling, the circuit court did not
expressly reference the presumption that Megan’s visitation decision was in the
children’s best interests. It is clear from the record, however, that the court was
aware of that presumption when making its decision. Dawn’s attorney expressly
argued on the second day of the contested hearing, shortly before the court made
its oral ruling, that “a fit parent gets a presumption that what they’re doing is right
for the children.” Megan’s attorney similarly argued, just before the court made
its ruling, that due process “does not allow the state to intervene in the child
rearing decision of a fit parent” and that a fit parent’s visitation decision “should
be given special weight under law.”

¶24 Furthermore, the evidence presented at the contested hearing was
sufficient to support the circuit court’s implicit determination that Dawn had
overcome the presumption that Megan’s preference for visitation in
South Carolina, rather than Green Bay, was in the children’s best interests. See
Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737
(“Although the proper exercise of discretion contemplates that the circuit court
explain its reasoning, when the court does not do so, we may search the record to

7
We note that Megan does not develop any argument on appeal that the circuit court
erred by awarding Dawn visitation with the children, nor does she challenge the amount of
visitation that the court awarded. Megan’s appellate arguments pertain solely to the court’s
decision that the children’s summer visitation with Dawn would take place in Green Bay, rather
than South Carolina.

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No. 2024AP753

determine if it supports the court’s discretionary decision.”); see also Teff v. Unity
Health Plans Ins. Corp., 2003 WI App 115, ¶14, 265 Wis. 2d 703, 666 N.W.2d
38 (refusing to reverse a discretionary decision where “there [was] an implicit
finding under the correct standard and … the facts provide[d] a reasonable basis
for the court’s implicit determination”).

¶25 During her testimony at the contested hearing, the only reasons that
Megan provided in support of her decision that Dawn’s visitation should occur in
South Carolina, rather than Green Bay, were that Megan would not feel
“comfortable” with the children being so far away from her and that she would
like to be closer to the children in case of an emergency. These reasons, however,
pertain to Megan’s best interests—that is, what would make Megan most
comfortable. Megan did not provide any reasons why it would be in the children’s
best interests for Dawn’s visitation to occur in South Carolina.

¶26 Moreover, Megan acknowledged that Dawn and the children love
each other, that the children have a relationship with Dawn, and that Megan does
not want to “take that away from them.” During her testimony, Dawn explained
that it would be impractical—if not impossible—for her to exercise visitation with
the children in South Carolina for extended periods of time. Dawn testified that
she and her husband are the primary caregivers for her daughter, who is “severely
handicapped” and requires significant care. Dawn further explained that her
daughter is unable to travel long distances and that, due to the nature of her
daughter’s condition, “it’s very difficult to find somebody that can just walk in
and” provide the necessary care for her. Dawn testified that the longest amount of
time that she would be willing to travel away from her daughter would be three
days.

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No. 2024AP753

¶27 Dawn also testified that having visitation in Green Bay would be
beneficial to the children because, aside from Dawn, the children have other
family members in Green Bay on their father’s side, including an aunt, an uncle,
and five cousins. Dawn explained that visitation in Green Bay would be the
children’s “only opportunity” to see those family members.

¶28 In addition, in his written report to the circuit court, the GAL opined
that the children have a substantial relationship with Dawn and that Megan “has
unfairly refused to encourage that relationship.”8 The GAL noted that “[i]t almost
seems like [Megan] thinks it is best to eliminate anything or anyone related to
[Adam] from the children’s lives,” which the GAL did not believe was in the
children’s best interests.

¶29 The circuit court could reasonably conclude that this evidence was
sufficient to overcome the presumption in favor of Megan’s visitation decision and
that, contrary to Megan’s decision, granting Dawn visitation with the children in
Green Bay would be in the children’s best interests. The court did not erroneously
exercise its discretion in that regard.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

8
Dawn testified at the contested hearing that Megan moved to Las Vegas without telling
her and without providing her new address; that Dawn was forced to hire a private investigator to
find Megan and the children; and that Megan has made it difficult for Dawn to contact the
children via FaceTime.

12