Elies v. Elies

• Decision Date: 13 December 1941
• Citation: 300 N.W. 493,239 Wis. 60
• Parties: ELIES v. ELIES.
• Court: Wisconsin Supreme Court

239 Wis. 60

300 N.W. 493

ELIES

v.ELIES.

Supreme Court of Wisconsin.

Nov. 4, 1941.

Supplemental Opinion Dec. 13, 1941.

Appeal from orders of the County Court of Sauk County; Henry J. Bohn, Judge.

Order as to custody of child: Reversed. Order as to suit money: Affirmed.

Action for divorce by Ruth Elies against Arthur Elies. From an order granted on motion of the defendant after judgment changing the custody of a child and from an order denying motion of plaintiff for suit money, the plaintiff appeals. The facts are stated in the opinion.

FRITZ, J., dissenting in part.Rogers & Owens and Bruce J. Rogers, all of Portage, for appellant.

Sigman & Sigman, of Appleton, for respondent.

FOWLER, Justice.

The appeal involves two orders: One a modifying of the decree of divorce so as to take the custody of the only child from the mother and awarding it to the father; the other denying the application of the mother for suit money and attorney's fees in connection with the application for modification of the judgment. The child is a girl and was two years and three months old at the time of the modification of the judgment.

The court found and adjudged on hearing the application for modification of the judgment as to custody of the child that the mother is an unfit person to have the custody and that the father is a fit person to have such custody and is now giving and has been giving the child proper care since she last came into his custody. During this period of ten months the child has been in the immediate care of five different women, although her health has been uniformly good, and the women were all competent to conserve the child's health and give her proper physical care.

The judgment of divorce was entered February 14, 1940. The plaintiff wife sued for divorce on the ground of cruelty. The husband denied the allegations of cruelty and counterclaimed asking divorce on the ground of cruelty practiced by improper association with a Dr. Harris. Before the trial the husband withdrew the answer and counterclaim and judgment was taken by default pursuant to stipulation of the parties.

On March 2d, 1940, the defendant moved the court to vacate the judgment, declare the stipulation void and relieve the defendant from its terms, reinstate the answer and counterclaim of the defendant and proceed to trial on the issues raised by the pleadings.

On May 21, 1940, the court denied this motion, and found that the matters on which the defendant based his motion were the same matters that were involved under his counterclaim, and were duly considered by the defendant and his counsel before the stipulation was entered and his counsel “entirely and completely advised” him in relation thereto before the case was finally heard; that apparently “the main object of the motion is to change the custody of the child,” and that the court was not satisfied from the testimony submitted “that the judgment awarding the custody of the child should be changed.”

The plaintiff on June 22, 1940, was married in Iowa to Dr. Harris. This marriage and the circumstances leading up to it are the only additional matters that occurred after the denial of the application to vacate the judgment up to the time of the granting of the instant order changing the custody of the child.

[1] On the hearing of the instant motion the court received evidence and manifestly considered that the motion not only covered the matters next above referred to, but all that preceded the entry of the judgment and formed the basis of defendant's counterclaim. We are of opinion that receipt and consideration of these matters was improper, and the court was limited to consideration of the conduct of the plaintiff since the hearing of defendant's previous motion, and such facts if any as the plaintiff concealed from the court upon the previous hearings. The plaintiff's previous association with Dr. Harris, however, was not concealed in those hearings. The nature of that association was the subject of investigation and determination and could not on the instant motion be re-litigated. The facts proper for consideration may be briefly summarized as the plaintiff's going to Iowa and the circumstances thereof, the marriage of the plaintiff in Iowa, her present residence there as the wife of Dr. Harris, her expectation of continuance of such residence, her ability and likelihood of giving the child proper care and nurture and of exercising a proper influence upon the child's morals and the likelihood of the plaintiff prejudicing the child against the defendant if the custody of the child were left with her.

That the mother is fond of the child, properly disposed towards her and capable of giving her proper personal and cultural care in her home in Iowa, is made entirely clear by the evidence adduced upon the motion. The only thing left as bearing upon the change of custody is the plaintiff's marriage, association with Dr. Harris since the denial of the motion to vacate the judgment and her marriage to him within one year from the entry of the judgment contrary to the terms of the judgment and admonitions of the court against marriage within one year given upon rendition of the judgment. It is without dispute that the residence of Dr. Harris and the plaintiff in Iowa is bona fide and that its continuance permanently was contemplated when they were married. It is also without dispute that Dr. Harris took competent legal counsel prior to his marriage to the plaintiff and was advised by such counsel that if the parties had acquired a bona fide legal residence in Iowa and continued to reside there the marriage was legal under the Iowa statutes and court decisions, and that the counsel who gave such advice reiterated it to plaintiff upon her asking him if he had so advised the doctor. The trial court recognized that “willing violation of the order of this court and the laws of Wisconsin (relating to marriage within one year) does not per se prove her unfitness to have the custody” of the child.

In juxtaposition with this statement the court found that plaintiff had “shown a willfulness and a lawlessness” because after signing the stipulation that the defendant should have custody of the child for a ten day period she refused to abide by it. She wrote Mr. Elies: “I refuse to let Carol Joy (the daughter) leave our house”; “you are not welcome in the home of my parents any longer”; “My life is my own *** you need not bother about coming after Carol Joy Sunday.” We have searched the record and there is no evidence by testimony or affidavit, as to any such statement by the plaintiff. If such testimony was given, it must have been given on the hearing to set aside the judgment. Whether so given or not it has no place here. The court, as above stated, denied the application to set aside the judgment and in its findings thereon reiterated the adjudication of the judgment of divorce that the plaintiff is a fit and proper person to have the custody of the child. That adjudication was res judicata, and the court could not properly on the present application repudiate or withdraw it, except for conduct of the plaintiff subsequent to the denial of the application to vacate the judgment, or concealment by her on previous hearings of facts relevant to such hearings.

The court found on the instant motion that the plaintiff “has no respect for the law or the orders” of the court and “an oath means little or nothing to her,” giving as a reason for such finding that she stated in an affidavit “that the defendant's allegation that the does not care to have Dr. Harris, who broke up his home, become the foster parent of his child, is a false allegation of fact as to any past act on the part of Dr. Harris and an unjustified accusation as to the future.” This statement to our minds does not warrant the court in so stigmatizing or regarding the plaintiff.

[2][3] The court also found that the plaintiff's scheming and conniving with Dr. Harris destroyed the defendant's home and the home and marriage of Dr. Harris and his first wife; that the plaintiff “did not speak the whole truth as to what the actual facts were” in the original divorce hearing. These findings indicate that the trial judge now accepts entirely the charge and insinuations of the defendant which he repudiated on the application for vacation of the judgment and in effect on the instant motion retried that application and the issues of the case as originally made by the pleadings in order to support the instant order for the change of the child's custody. This the trial judge could not do. The matter of association with Dr. Harris having been previously litigated, the judge should have decided the instant application on what, and only what has occurred since denial of the application to vacate the judgment. As to such matters the court might discard the...