Elies v. Elies

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPER CURIAM.
Citation300 N.W. 493,239 Wis. 60
Decision Date13 December 1941
PartiesELIES v. ELIES.

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.

[300 N.W. 494]

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

[300 N.W. 495]

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...

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12 practice notes
  • State ex rel. Cooper v. Garvin, No. 10672
    • United States
    • Supreme Court of West Virginia
    • May 18, 1954
    ...Mich. 14, 284 N.W. 627; Tumini v. Tumini, 150 Pa.Super. 363, 28 A.2d 357; Cline v. Cline, 132 Cal.App. 713, 23 P.2d 431; Elies v. Elies, 239 Wis. 60, 300 N.W. 493; Brong v. Brong, 129 Pa.Super. 224, 195 A. 439; Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745, 747. In the Butler case, it is fu......
  • State ex rel. Hammond v. Worrell, No. 11043
    • United States
    • Supreme Court of West Virginia
    • March 3, 1959
    ...Mich. 14, 284 N.W. 627; Tumini v. Tumini, 150 Pa.Super. 363, 28 A.2d 357; Cline v. Cline, 132 Cal.App. 713, 23 P.2d 431; Elies v. Elies, 239 Wis. 60, 300 N.W. 493; Brong v. Brong, 129 Pa.Super. 224, 195 A. 439; Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745, 747. In the Butler case, it is fu......
  • Crowe v. Crowe, No. 17410.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1946
    ...194 So. 153;Williams v. Williams, 1943, 110 Colo. 473, 135 P.2d 1016;Kane v. Kane, 1927, 241 Mich. 96, 216 N.W. 437;Elies v. Elies, 1941, 239 Wis. 60, 300 N.W. 493;Crummer v. Crummer, 1932, 44 Wyo. 1, 7 P.2d 223;Kirby v. Kirby, 1923, 126 Wash. 530, 219 P. 27;Duncan v. Duncan, 1943, 293 Ky. ......
  • Crowe v. Crowe, 17410.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1946
    ...So. 153; Williams v. Williams, 1943, 110 Colo. 473, 135 P.2d 1016; Kane v. Kane, 1927, 241 Mich. 96, 216 N.W. 437; Elies v. Elies, 1941, 239 Wis. 60, 300 N.W. 493; Crummer v. Crummer, 1932, 44 Wyo. 1, 7 P.2d 223; Kirby v. Kirby, 1923, 126 Wash. 530, 219 P. 27; Duncan v. Duncan, 1943, 293 Ky......
  • Request a trial to view additional results
12 cases
  • State ex rel. Cooper v. Garvin, No. 10672
    • United States
    • Supreme Court of West Virginia
    • May 18, 1954
    ...Mich. 14, 284 N.W. 627; Tumini v. Tumini, 150 Pa.Super. 363, 28 A.2d 357; Cline v. Cline, 132 Cal.App. 713, 23 P.2d 431; Elies v. Elies, 239 Wis. 60, 300 N.W. 493; Brong v. Brong, 129 Pa.Super. 224, 195 A. 439; Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745, 747. In the Butler case, it is fu......
  • State ex rel. Hammond v. Worrell, No. 11043
    • United States
    • Supreme Court of West Virginia
    • March 3, 1959
    ...Mich. 14, 284 N.W. 627; Tumini v. Tumini, 150 Pa.Super. 363, 28 A.2d 357; Cline v. Cline, 132 Cal.App. 713, 23 P.2d 431; Elies v. Elies, 239 Wis. 60, 300 N.W. 493; Brong v. Brong, 129 Pa.Super. 224, 195 A. 439; Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745, 747. In the Butler case, it is fu......
  • Crowe v. Crowe, No. 17410.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1946
    ...194 So. 153;Williams v. Williams, 1943, 110 Colo. 473, 135 P.2d 1016;Kane v. Kane, 1927, 241 Mich. 96, 216 N.W. 437;Elies v. Elies, 1941, 239 Wis. 60, 300 N.W. 493;Crummer v. Crummer, 1932, 44 Wyo. 1, 7 P.2d 223;Kirby v. Kirby, 1923, 126 Wash. 530, 219 P. 27;Duncan v. Duncan, 1943, 293 Ky. ......
  • Armstrong v. Armstrong, No. 6503.
    • United States
    • Missouri Court of Appeals
    • February 15, 1945
    ...Corpus Juris Secundum, Divorce, § 317, page 1197; 17 American Jurisprudence, page 519; Thomas v. Thomas, 233 Ill.App. 488; Elies v. Elies, 239 Wis. 60, 300 N.W. 493; Averch v. Averch, 104 Colo. 365, 90 P.2d 962; Borigo v. Borigo, 142 Or. 46, 18 P.2d 810; Frazier v. Frazier, 109 Fla. 164, 14......
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