Eule v. Eule

• Decision Date: 05 January 1960
• Citation: 9 Wis.2d 115,100 N.W.2d 554
• Parties: Mary Ellen EULE, Respondent, v. Rudolph EULE, Appellant.
• Court: Wisconsin Supreme Court

Page 554

100 N.W.2d 554

9 Wis.2d 115

Mary Ellen EULE, Respondent, v.Rudolph EULE, Appellant.

Supreme Court of Wisconsin.

Jan. 5, 1960.

Glassner, Clancy & Glassner, Milwaukee, for appellant.

Wittig & Wittig, Milwaukee, for respondent.

HALLOWS, Justice.

The first question presented is whether a Wisconsin court having personal jurisdiction of the husband and wife in an action by the wife for a divorce, alimony, custody of the minor child and its support, must give full faith and credit to an Illinois divorce decree awarding custody of the child to the husband when that decree was obtained by the husband in a divorce action in an Illinois court which had no personal jurisdiction over the mother or the child.No question is raised on this appeal that the Illinois decree so far as it dissolved the marital status of the parties is not entitled to full faith and credit.The question concerns only that part of the Illinois decree awarding custody and making no reference to alimony.

It is without dispute that the mother and the child resided in Wisconsin and the appellant husband resided in Illinois.The parties were married in Wisconsin July 6, 1953, and for sometime lived in New York.On November 27, 1955, the wife left the husband, taking the child with her.Neither the mother not the child was within the state of illinois at the time of the Illinois divorce proceeding or personally served in Illinois.

The appellant urges that full faith and credit of the entire Illinois decree must be given under sec. 247.21, Stats.This section does not add anything that is not required by Art. IV, sec. 1, of the United States Constitution on full faith and credit.It applies to decrees of annulment of marriage or divorce when the jurisdiction of such foreign courts was obtained in the manner and in substantial conformity with methods of commencing such actions in this state.The section does not expressly refer to custody of children or to decrees of alimony.We do not construe the statute to change the case law in this state as to those matters.Alimony and custody of children are separate issues in a divorce action and if not adjudicated in the divorce action may be the subject of a separate action.A divorce action is divisible into status, alimony, and custody.Pollock v. Pollock, 1955, 273 Wis. 233, 77 N.W.2d 485.

The gist of the appellant's argument is that the Illiniois decree is entitled to full faith and credit, even though the respondent was not personally served in the state of Illinois because she made an appearance and therefore participated in that action.It is true that the defendant appeared but under the law of Illinois it was a special and limited appearance to raise the jurisdictional question and was so treated by the Illinois court.In the order of the Illinois court finding the respondent in default it is recited the respondent failed to file an answer or otherwise make an appearance in the action.The appellant relies on Davis v. Davis 1938, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26;Williams v. State of North Carolina, 1942, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279;Sherrer v. Sherrer, 1948, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429;Coe v. Coe, 1948, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451.

Those cases involved the jurisdiction of foreign courts to grant divorces dissolving the marital status, not jurisdiction to award custody of children of the parties or alimony.The doctrine of the Sherrer and Coe cases, supra, that the opportunity of the nonresident to contest the jurisdictional issue of domicile is sufficient to give the court jurisdiction to dissolve the marital status has not been applied to sustain jurisdiction in custody cases.In those cases, as pointed out by this court in Davis v. Davis, 1951, 259 Wis. 1, 47 N.W.2d 338 both parties to each action were physically present and participated in the divorce proceedings.The Daviscase, supra, concluded that 'personal appearance' or the opportunity to participate meant physically present in court and a special appearance by counsel did not amount to a personal appearance by the party.Such is the situation with this respondent.She made a special appearance under the law of Illinois but not a personal appearance for the purpose of contesting not domicile, but an issue of jurisdiction which is not being relitigated in this action.

Since the Sherrer and Coe cases, supra, were decided the United States Supreme Court had an apportunity to apply the personal appearance doctrine to custody cases but did not do so.In May v. Anderson, 1953, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221, the court considered a Wisconsin ex parte divorce awarding custody to the husband of children who were with their mother on Ohio, who was not personally served in Wisconsin, and held that in a habeas corpus proceeding which raised the issue of the right of the mother to possession of her minor children, the Ohio court was not bound by the full faith and credit clause of the federal constitution to give effect to the Wisconsin decree because the Wisconsin court did not have personal jurisdiction of the mother.The argument that personal jurisdiction was not required of the mother was advanced in the dissenting opinion.The majority opinion stated the rights of parents to the custody, care, management, and companionship, of their minor children were far too precious to be cut off by a court which did not have jurisdiction over the parents in personam.A parent's right to custody of his children is a personal right and cannot be affected in a divorce action unless the court had personal jurisdiction over the parent.The full faith and credit clause does not entitle a judgment in personam to extra territoral effect when it is made to appear such judgment was rendered without personal jurisdiction of the person sought to be bound.

The rule is stated in 17a Am.Jur., Divorce and Separation, p. 177, sec. 994, 'Thus, where a nonresident parent has custody of a child in another state after a separation of the spouses, and has a right to custody, this is a personal right which cannot be terminated without jurisdiction over such parent in personam; the divorce court, in a state in which he or she is not domiciled, cannot gain jurisdiction to terminate that right by constructive service.'Citing May v. Anderson, supra;Kline v. Kline, 1881, 57 Iowa 386, 10 N.W. 825;Newell v....