Aaron Michael Smits v. Kerri Lynn Pineda

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.
April 14, 2026
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. 2024AP1188 Cir. Ct. No. 2021FA109

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE MARRIAGE OF:

AARON MICHAEL SMITS,

PETITIONER-APPELLANT,

V.

KERRI LYNN PINEDA,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Door County:
D. TODD EHLERS, 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. 2024AP1188

¶1 PER CURIAM. Aaron Michael Smits appeals a postdivorce order
granting Kerri Lynn Pineda’s motion to modify legal custody and physical
placement.1 Smits argues that the circuit court erred in numerous respects by
granting Pineda’s motion. We conclude, however, that Smits forfeited these
arguments by failing to raise them in the circuit court and by instead consenting to
Pineda’s proposed modifications. Alternatively, the doctrine of judicial estoppel
prevents Smits from raising his current arguments challenging the order modifying
legal custody and physical placement. We therefore affirm.

BACKGROUND

¶2 Smits petitioned for divorce from Pineda in December 2021. A final
judgment of divorce was entered in August 2022. At the time of the divorce,
Smits resided in Door County, Wisconsin, while Pineda resided in Florida, and the
parties had three minor children—a son and two daughters. The divorce judgment
awarded the parties joint legal custody of all three children. Smits was awarded
primary physical placement of the parties’ son during the school year, while
Pineda was awarded primary physical placement of the parties’ daughters during
the school year. On February 2, 2023, the circuit court entered an order clarifying
that, during the summer, Smits would have placement of all three children from
the day after the parties’ daughters finished school until the Saturday of the second
week in July, and Pineda would then have placement of all three children from the
Saturday of the second week in July until the Saturday of the third week in
August.

1
Smits is represented by counsel on appeal, while Pineda is self-represented.

2
No. 2024AP1188

¶3 On April 22, 2024, Pineda filed a motion to modify legal custody
and physical placement. Specifically, Pineda asked the circuit court to grant her
sole legal custody of all three children and primary physical placement of the
parties’ son. As the basis for the motion, Pineda asserted that Smits “requested I
come get [the parties’ son] as [Smits] is no longer able to provide a safe secure
home.” Pineda further asserted that a substantial change in circumstances had
occurred because the “safety” of the parties’ son was “in question” and Smits
“cannot provide for” the children. Attached to Pineda’s motion was an email from
Smits to Pineda, dated April 19, 2024, in which Smits stated:

Per our conversation today on 19 April 2024, I no longer
believe that I am able to provide a safe and secure home for
[our son]. Because of this I have requested that you come
and take [our son] into your custody for the time being if
not indefinitely. I would like to make it clear that this is
my own will and should be legally binding. I want no
repercussions brought against [Pineda] for taking the best
interest of her son in mind.

¶4 Pineda’s motion to modify legal custody and physical placement was
served on Smits on April 22, 2024. The motion informed Smits that a hearing
would take place on April 26, 2024. However, Smits did not appear at the
April 26 hearing. During the hearing, the circuit court explained:

Mr. Smits has not appeared, and I would note that there is a
certificate of service in the file evidencing he was served
with notice of today’s hearing. I would further note for the
record that the family clerk from the Clerk of Court’s
Office has advised me that Mr. Smits did call their office in
the past couple of days and advised that he was not
intending to appear today and further had indicated to the
clerk that he was not objecting to the relief Ms. … Pineda
was asking for today.

¶5 After confirming that Pineda did not wish to add anything to the
allegations in her motion, the circuit court stated:

3
No. 2024AP1188

[B]ased upon, again, an attachment that Ms. … Pineda had
to her motion, an email she received from Mr. Smits that,
again, he was suggesting or proposing to her that she come
and get [the parties’ son], that because of his situation he
wasn’t able to care for [the parties’ son] at the present
time, … I will order that Ms. … Pineda will have sole legal
custody of all three children at the present time and she will
also be awarded primary placement of [the parties’ son] at
the present time.

¶6 The circuit court subsequently entered a written order granting
Pineda sole legal custody and primary physical placement of all three of the
parties’ children. Smits now appeals from that order.

DISCUSSION

¶7 On appeal, Smits argues that the circuit court erred in numerous
respects by granting Pineda’s motion to modify legal custody and physical
placement. Specifically, he contends that the court erred by: (1) finding that
Pineda “had properly drafted and served timely notice on” Smits regarding the
April 26, 2024 hearing; (2) ignoring the “2-year prohibition on filing a Motion to
Modify Custody and/or Physical [Placement]”; (3) “failing to apply the proper
requirements when granting a Motion for Relocation of the minor child out of the
state of Wisconsin”; (4) “[waiving] (or ignoring) the 60-Day statutory notice of
intent to relocate the minor child, by certified mail, to the other parent and a copy
to the court”; (5) failing to notify Smits of his “right and his obligation to file an
‘Objection to Relocation’”; (6) “failing to hold an initial hearing and to follow the
requirements of such a hearing as prescribed by law”; (7) “failing to submit the
parties to court-ordered mediation”; (8) failing to appoint a guardian ad litem;
(9) “not having a proper final hearing and making a record of the reasons for
allowing the relocation”; (10) “ordering the termination of all Legal Custody and
Physical Placement, including any reasonable parental access[,] without adequate

4
No. 2024AP1188

findings to support such an order”; and (11) modifying legal custody and physical
placement of the parties’ two daughters when “no relief was requested regarding
these children.”

¶8 Smits, however, did not raise any of these arguments in the circuit
court. Instead, the record shows that Smits emailed Pineda on April 19, 2024, and
asked her to take the parties’ son into her “custody for the time being if not
indefinitely” because Smits did not believe he could “provide a safe and secure
home for” the child.2 The email further stated that this decision was Smits’ “own
will and should be legally binding.” After receiving Smits’ April 19 email, Pineda
moved for primary physical placement of the parties’ son and sole legal custody of
all three children. The motion, which was served on Smits on April 22, 2024,
notified Smits of the April 26 hearing date. Smits nevertheless chose not to appear
at the April 26 hearing.3 As noted above, during the hearing, the court recounted
that Smits had contacted the clerk of court’s office and advised “that he was not
intending to appear today” and “that he was not objecting to” Pineda’s requested
relief—i.e., primary physical placement of the parties’ son and sole legal custody
of all three children.4

¶9 “Arguments raised for the first time on appeal are generally deemed
forfeited.” See Tatera v. FMC Corp., 2010 WI 90, ¶19 n.16, 328 Wis. 2d 320,

2
On appeal, Smits does not dispute that he sent the April 19, 2024 email that was
attached to Pineda’s motion to modify legal custody and physical placement.
3
Smits does not dispute that he received notice of the April 26 hearing, nor does he raise
any argument that he was unable to attend that hearing.
4
Smits does not dispute that he contacted the clerk of court’s office and made these
statements.

5
No. 2024AP1188

786 N.W.2d 810; see also State v. Reese, 2014 WI App 27, ¶14 n.2, 353 Wis. 2d
266, 844 N.W.2d 396 (stating that “this court need not address arguments that are
raised for the first time on appeal”). “We will not … blindside trial courts with
reversals based on theories which did not originate in their forum.” See State v.
Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995). The forfeiture
rule

gives both parties and the circuit court notice of the issue
and a fair opportunity to address the objection; encourages
attorneys to diligently prepare for and conduct trials; and
prevents attorneys from “sandbagging” opposing counsel
by failing to object to an error for strategic reasons and
later claiming that the error is grounds for reversal.

State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612.

¶10 In this case, not only did Smits fail to raise his current arguments in
the circuit court, he affirmatively informed the court—via the clerk of court’s
office—that he did not object to the relief requested in Pineda’s motion to modify
legal custody and physical placement. Accordingly, Smits forfeited his current
arguments, and we reject them on that basis.

¶11 Alternatively, we conclude that Smits is judicially estopped from
raising his current arguments challenging the order modifying legal custody and
physical placement. The equitable doctrine of judicial estoppel “precludes a party
from asserting a position in a legal proceeding and then subsequently asserting an
inconsistent position.” State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817
(1996). The doctrine is intended “to protect against a litigant playing ‘fast and
loose with the courts’ by asserting inconsistent positions.” Id. (citation omitted).
To that end, the doctrine “recognizes that ‘[i]t is contrary to fundamental
principles of justice and orderly procedure to permit a party to assume a certain

6
No. 2024AP1188

position in the course of litigation which may be advantageous, and then after the
court maintains that position, argue on appeal that the action was error.’” State v.
Magnuson, 220 Wis. 2d 468, 471, 583 N.W.2d 843 (Ct. App. 1998) (alteration in
original; citation omitted).

¶12 Judicial estoppel requires proof of three elements: (1) a litigant’s
later position is clearly inconsistent with the litigant’s earlier position; (2) the facts
at issue are the same; and (3) the party to be estopped convinced the first court to
adopt its position. Petty, 201 Wis. 2d at 348. “Determining the elements and
considerations involved before invoking the doctrine of judicial estoppel are
questions of law which we decide independently.” Id. at 347.

¶13 Here, we conclude that all three of the elements required for the
application of judicial estoppel are satisfied. First, Smits has taken clearly
inconsistent positions in the circuit court and on appeal. In the circuit court, Smits
failed to appear at the hearing on Pineda’s motion to modify legal custody and
physical placement and instead informed court staff that he did not object to the
relief Pineda sought. Now, on appeal, Smits seeks to overturn the order granting
Pineda’s motion, arguing that the circuit court erred in numerous respects.
Second, the facts at issue in the circuit court and on appeal are the same. Third,
Smits convinced the circuit court to adopt his position. It is clear from the
transcript of the hearing on Pineda’s motion that, when granting the motion, the
circuit court relied on Smits’ email to Pineda asking her to take custody of the
parties’ son, his failure to appear at the hearing, and his statement to court staff
that he did not object to Pineda’s requested relief.

¶14 Accordingly, the elements of judicial estoppel are satisfied, and we
conclude it is appropriate to apply judicial estoppel in this case. Smits should not

7
No. 2024AP1188

be permitted to play “fast and loose with the courts,” see id. (citation omitted), by
“assum[ing] a certain position in the course of litigation … and then after the court
maintains that position, argu[ing] on appeal that the action was error,” see
Magnuson, 220 Wis. 2d at 471 (citation omitted). We therefore reject Smits’
appellate arguments and affirm the circuit court’s order granting Pineda’s motion
to modify legal custody and physical placement.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2023-24).

8