Braun v. Brown

• Decision Date: 08 October 1957
• Citation: 85 N.W.2d 392,1 Wis.2d 481
• Parties: Rose Ann BRAUN, Appellant, v. James Gordon BROWN, Respondent.
• Court: Wisconsin Supreme Court

Page 392

85 N.W.2d 392

1 Wis.2d 481

Rose Ann BRAUN, Appellant, v. James Gordon BROWN, Respondent.

Supreme Court of Wisconsin.

Oct. 8, 1957.

Rehearing Denied Dec. 3, 1957.

See 86 N.W.2d 427.

Charlton, Yanisch & Binzak, Milwaukee, William A. Ritchay, Milwaukee, of counsel, for appellant.

Stephen J. Hajduch, Milwaukee, for respondent.

WINGERT, Justice.

We have reached the conclusion that plaintiff is entitled to recover the unpaid installments of support money called for by the judgment of divorce, and that accordingly the judgment in the present action must be reversed.

1. Sec. 247.32, Stats., provides that after a judgment providing for alimony or other allowance for the wife and children,

'the court may, from time to time, on the petition of either of the parties, revise and alter such judgment respecting the amount of such * * * allowance and the payment thereof * * *.'

Thus it was open to defendant Brown, at any time before the boy died, to apply to the court for relief from the support money provisions of the divorce judgment. He made no effort to do so.

In Halmu v. Halmu, 247 Wis. 124, 19 N.W.2d 317, this court held in a carefully considered opinion that when the youngest of several children for whose benefit an allowance of support money has been made reaches age twenty-one, the power of the divorce court to revise the support money provisions of the divorce judgment terminates; and the ex-wife may when maintain an independent action, in the nature of a common law action of debt upon a record, to recover the unpaid installments of support money. 247 Wis. at pages 131-132, 135, 19 N.W.2d at pages 320-321.

The rule and reasoning of the Halmu case are equally applicable to the case at bar. The death of an only child, like the attainment of his majority, operates to terminate the jurisdiction of the divorce court to modify the judgment for support money, and the ex-wife may then maintain an independent action to recover the unpaid installments.

In Halmu it was observed, with reference to the action for unpaid support money, that

'Under these circumstances, we consider that plaintiff need only show the amounts due by reason of the judgment during the minority of the children, subtract payments made by defendant, and the balance will be the amount owed by defendant';

it being merely a matter of mathematical computation. 247 Wis. at page 136, 19 N.W.2d at page 322. The court nevertheless considered a contention that the plaintiff ex-wife was guilty of laches, but held that she was not, without saying what affect on her rights laches would have had if proven. 247 Wis. at pages 136-137, 19 N.W.2d at page 322.

In the present case it is not necessary to determine whether, as intimated in Halmu, the court in such an action is always limited to a mathematical ascertainment of the amounts remaining unpaid, and must enter judgment therefor regardless of other considerations, or whether, on the other hand, the court may exercise the familiar power of a court of equity to relieve against a judgment whose enforcement would be inequitable. Even assuming the existence, after the death of the child, of power to relieve defendant from the support money provisions of the divorce judgment on equitable grounds, we are satisfied that defendant was in no position to invoke the aid of equity. Equitable relief from a money judgment will not be granted to one who is guilty of inexcusable neglect in asserting his right to such relief. Schulteis v. Trade Press Pub. Co., 191 Wis. 164, 165, 210 N.W. 419; Grady v. Meyer, 205 Wis....