Beberfall v. Beberfall

• Decision Date: 31 October 1969
• Docket Number: No. 154,154
• Citation: 171 N.W.2d 390,44 Wis.2d 540
• Parties: Freda BEBERFALL, Appellant, v. Lester BEBERFALL, Respondent.
• Court: Wisconsin Supreme Court

Page 390

171 N.W.2d 390

44 Wis.2d 540

Freda BEBERFALL, Appellant, v. Lester BEBERFALL, Respondent.

No. 154.

Supreme Court of Wisconsin.

Oct. 31, 1969.

This is an appeal from an order terminating support payments under a divorce decree to a daughter who had attained the age of eighteen and had completed high school.

The plaintiff in the underlying divorce action obtained a divorce from Lester Beberfall in 1966. Custody of four minor children was awarded to the mother, and just prior to the commencement of these proceedings Lester Beberfall, a professor of Spanish at the State University at Oshkosh and holder of a Ph.D. degree, was under an obligation to pay $300 per month for the support of the children. In December of 1968 Beberfall petitioned the county court for an order to reduce the support payments by $75 per month. The petition was based upon the allegation that Carol, a daughter, had attained the age of eighteen years.

After a hearing in which the financial status of the parties was presented, the court ordered that reduction of the support payments as asked for by the petitioner.

This appeal is from that order. Further facts will appear in the opinion.

Williams & Lampe, Oshkosh, for appellant.

Lester Beberfall, pro se.

HEFFERNAN, Justice.

At the outset it should be stated that the defendant-respondent, Beberfall, failed to comply with the rules of this court requiring that briefs be printed (sec. 251.39, Stats.). His request for exoneration from this rule was denied by this court. Yet, in flagrant disregard of the rules of the Supreme Court of Wisconsin and its specific directions, he filed typewritten-ditto copies of what purported to be a brief. At oral argument Beberfall was informed by the Chief Justice that, by his failure to comply with the rule requiring briefs, he had forfeited his right to make an argument. As a matter of grace, the court nevertheless permitted Beberfall to make a 'statement' of his position. Our rules are clear. Sec. 251.60, Stats., provides in part:

'Oral argument on a cause will not be heard on behalf of any party for whom no brief has been filed, unless otherwise ordered by the court.'

Rule 251.57, Stats., provides:

'When a cause is submitted, or presented by counsel for appellant or plaintiff in error, but not by the opposing party, the judgment or order appealed from may be reversed as of course, without argument.'

Beberfall, a nonlawyer, appeared without counsel. If we saw fit, under our rules the order could be reversed without recourse to the facts of the case.

The point raised is, however, of great importance, and in regard to which there should be no misunderstanding by either the bench or bar.

It appears that Beberfall's petition was predicated upon the belief that he had no obligation to pay support money to a divorced wife for the care of a child which had attained the age of eighteen and had completed high school.

Sec. 247.24, Stats., provides in part:

'247.24 Judgment; care and custody, etc., of minor children. In rendering a judgment of annulment, divorce or legal separation, the court may make such further provisions therein as it deems just and reasonable concerning the care, custody, maintenance and education of the minor children of the parties, * * *.' (Emphasis supplied.)

It thus appears on the fact of the statutes that a divorce court is empowered with discretion to provide for the care and education of a child at least until it reaches its majority. In Brackob v. Brackob (1953), 265 Wis. 513, 524, 61 N.W.2d 849, 854, we determined the effect of that statute and decided:

'* * * there was no abuse of discretion on the part of the court in requiring defendant to pay support money for each child until the child reaches twenty-one, or his or her formal education is completed, whichever first occurs. The income of the defendant is such that he should be required to provide further education beyond high school for his children * * *.'

In Peck v. Peck (1956), 272 Wis. 466, 471, 76 N.W.2d 316, 319, 56 A.L.R.2d 1202, we stated:

'We are of the opinion that as a general rule, in a case where a child under twenty-one years of age who has completed high school is desirous of attending college and whose high-school record has demonstrated that he has the capacity to do college work, a court should not relieve the father from at least being required to continue paying the monthly support money provided in the divorce judgment for the period prior to the child arriving at the age of eighteen years. However, an exception should be made to this rule where the required continuance of such support-money payments would place an undue financial burden on the divorced father.'

These two cases make it clear that a court is under no obligation to terminate support payments to a minor child at the age of eighteen and should not relieve a father from continuing payments in at least the same amount as before when it appears the continuance of such payments would not place an undue burden on the divorced father and when such payments are necessary for the continued support or...