Block v. Block
| Citation | 15 Wis.2d 291,112 N.W.2d 923 |
| Parties | Walter M. BLOCK, Appellant, v. Ruth Betten BLOCK, Respondent. |
| Decision Date | 29 December 1961 |
| Court | Wisconsin Supreme Court |
The order appealed from indefinitely suspended the visitation rights of the plaintiff Walter M. Block to see his two children who are in the custody of the defendant-respondent Ruth Betten Block in California. This appeal is but one phase of the litigation between these parties which has pursued a long and stormy course in the courts of Wisconsin. Other phases of this embittered battle were before us in Block v. Block (1960), 9 Wis.2d 378, 101 N.W.2d 101, and at this term in Block v. Block, Case No. 54, which appeal was dismissed on motion without opinion in June, 1961. A few weeks ago, on December 11, the United States Supreme Court denied the plaintiff's petition based on the dismissal of that appeal. 82 S.Ct. 186; 82 S.Ct. 383.
The parties were divorced in the state of Texas, where they then resided, and custody of the two minor children was awarded to the mother. After the divorce, the defendant came to Wisconsin with the children. The custody of the children and related issues have been in continuous litigation succssively before no less than three different trial courts. According to the appellant, he has been jailed wrongfully on two occasions in Wisconsin, has been persecured and has started various actions, both in state and federal courts, against some of the trial judges who have tried the litigation.
The record on this appeal, as on the previous appeal, is very sketchy and incomplete and the appellant's brief goes beyond the record and reiterates many of the charges and extraneous matters which are not properly before us or which were contained in his first appeal and other applications to this court for injunctions and a writ of mandamus. After our decision on the first appeal, the trial court entered an order allowing the respondent to take the children and to reside in California. The order also provided the plaintiff could have his children for visitation two weeks every summer in Chicago at such time as he might elect and for one week during the Christmas vacation. Apparently, the trial court appointed a guardian ad litem for the plaintiff who had been appearing in court without counsel on his own behalf. On March 28th, 1961, the trial court denied the motion of the plaintiff brought by his guardian ad litem to hold the defendant in contempt of court and to vacate or amend certain prior orders in respect to support money and other matters. The court amended the order allowing the plaintiff visitation rights to require the plaintiff to notify the defendant of his desire for visitation ten days before the date of such visitation by sending to the clerk of the circuit court of Brown county a written request for such visitation and if the request was for visitation during the Christmas Holidays to accompany such request by a money order or a cashier's check in an amount sufficient to defray the round trip transportation charges of the minor children. The guardian ad litem was discharged from further duties.
The following month the defendant, on April 26th, 1961, filed a motion with the court to hold the plaintiff in contempt for violating an order pertaining to the support of the minor children, to suspend his rights of visitation and, in the alternative, to require him to submit to a mental examination by a competent medical authority appointed by the court prior to any visitation with the minor children. This motion was set for hearing on May 29th, 1961, but was not heard because service could not be obtained upon the plaintiff.
On June 25th, pursuant to the procedure provided in the order of March 28th, 1961, the plaintiff notified the clerk by letter delivered by an employee of the Western Union Telegraph Company that he demanded his children, Ronald and Sharon Block, to visit him in Chicago starting July 16th, 1961; that he had arranged for airplane transportation, giving the details thereof. The letter also asked the clerk to notify the defendant, the defendant's attorneys, and the trial judge of this request.
On June 19th, 1961, the defendant obtained an order requiring the plaintiff to show cause on June 26th, 1961, why his visitation rights should not be indefinitely suspended. Since the plaintiff did not reside in Wisconsin, it was ordered that a copy of that order be served upon the plaintiff by mail in care of Bock Lewis, 70 West Chippewa Street, Buffalo, New York (his last known address), at least five days prior to the hearing. The plaintiff failed to appear at the hearing and upon supporting affidavits and proof submitted, the court found the plaintiff's place of residence was unknown and could not be ascertained with due diligence, that the plaintiff was studiously and deliberately attempting to hide his place of residence and that it was inimical to the best interests and welfare of the minor children to permit the plaintiff to have temporary exclusive custody of them for the purposes of visitation. It is from this order, the plaintiff appealed.
At the hearing on this appeal, the plaintiff did not appear personally or by counsel, although he filed a brief and a reply brief. The matter was considered to be submitted on briefs after an explanation by the defendant's counsel.
Walter M. Block in pro. per.
Cohen & Parins, Green Bay, for respondent.
The appellant claims there are eight questions to be answered by this court, but several of them are not properly raised and the rest can be restated as two propositions: (1) Did the court have jurisdiction to issue its order indefinitely suspending the plaintiff's visitation rights, and (2) did the court abuse its discretion in making the order?
The trial court has the power to make reasonable provisions concerning the care, custody, maintenance and education of minor children of parties involved in an annulment, divorce or legal separation; and thereafter, a court continues to have the power to change the care, custody, maintenance and education of such children when their welfare will be promoted. However, no order changing the custody of such child may be entered until after notice of such application has been given to the parents of such child, if they can be found. Secs. 247.24 and 247.25, Stats. The children in this instance are in California with their mother with the approval of the Wisconsin court. Such fact does not defeat the jurisdiction of the Wisconsin court even if it is considered the children are not domiciled in Wisconsin. Brazy v. Brazy (1958), 5 Wis.2d 352, 92 N.W.2d 738, 93 N.W.2d 856; Anderson v. Anderson (1959), 8 Wis.2d 133, 98 N.W.2d 434. The court having jurisdiction over the children did not lose such jurisdiction, nor was the trial court without power to act in changing the visitation rights of the plaintiff, because he could not be found and personally served and such order was based upon service by mail.
The plaintiff contends his residence was known at all times and he did not receive notice of the pending motion to change his visitation rights and the court was in error in finding he was attempting to evade service of process and hide his residence. In the record before us, there is ample evidence to sustain the finding of the trial court that the plaintiff could not be found with reasonable diligence. The defendant could not serve the plaintiff's guardian ad litem for the reason his guardian ad litem had been discharged on March 28th. At that time, the plaintiff's residence was apparently 1314 Devon Avenue, Chicago, Illinois. Personal service was attempted by a process-server at that address unsuccessfully. On May 11th the plaintiff wrote his...
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