Groh v. Groh

• Decision Date: 05 January 1983
• Docket Number: No. 81-1602,81-1602
• Citation: 327 N.W.2d 655,110 Wis.2d 117
• Parties: In re the Marriage of Janette G. GROH, Petitioner-Appellant-Petitioner, v. Edward G. GROH, Respondent.
• Court: Wisconsin Supreme Court

Page 655

327 N.W.2d 655

110 Wis.2d 117

In re the Marriage of Janette G. GROH, Petitioner-Appellant-Petitioner, v. Edward G. GROH, Respondent.

No. 81-1602.

Supreme Court of Wisconsin.

Argued Oct. 4, 1982.

Decided Jan. 5, 1983.

Carol W. Medaris, Legal Action of Wisconsin, Inc., Madison, for petitioner-appellant-petitioner.

Harlow J. Hellstrom (argued), Milwaukee, for respondent; Thea M. Host-Keane, Milwaukee, on brief.

Henry A. Tessmer, Milwaukee, guardian ad litem, for minor children.

DAY, Justice.

This is a review of an unpublished per curiam decision of the court of appeals 107 Wis.2d 747, 322 N.W.2d 700 filed on May 18, 1982, which affirmed an order of the Circuit Court for Milwaukee County, JOHN F. FOLEY, Judge, directing that custody of the minor children of petitioner, Janette Groh, and respondent, Edward Groh, be continued with Janette Groh on the condition that she and the children move from Rhinelander to a residence within fifty miles of Milwaukee by September 1, 1981. If Janette Groh, the mother, failed to move, the court ordered that the custody of the children be transferred to Edward Groh, the father. This court ordered a stay of the trial court order pending review of the decision of the court of appeals.

There are two issues on this review. First, did the court have the authority to order the mother to change her residence within the state as a condition of retaining custody? Second, did the trial court abuse its discretion in ordering that custody of the children be taken from the mother and be transferred to the father if she failed to move to Milwaukee?

We conclude that the trial court lacked authority to order the mother to relocate to Milwaukee as a condition of retaining custody. We further conclude the trial court abused its discretion in ordering that custody be transferred to the father should the mother fail to move with the children to the Milwaukee area. Accordingly, we reverse the decision of the court of appeals.

Edward and Janette Groh were divorced on December 7, 1978. At the time the family lived in Milwaukee. There were four children of the marriage: Jodi, born November 26, 1970; Kelly, born December 11, 1972; Edward, (Casey) born March 22, 1974, and Christine, born February 8, 1977. At the time of the divorce, custody was awarded to the mother by stipulation.

In August, 1979, Janette Groh moved with the children to Rhinelander. Edward Groh was opposed to the move. Prior to the move, Edward Groh visited with the children approximately two weekends per month and one or two evenings a week. Following the move, he would visit the children one or two weekends a month and take them over the Christmas and Easter holidays, and for a seven-to-eight-week period during the summer. The weekend visits take place at property his parents own about forty miles from Rhinelander. It is approximately 235 miles from Milwaukee to Rhinelander.

Nine months after the move, Edward Groh began an action to get custody of the children. A hearing was held before a family court commissioner and a trial de novo took place before the circuit court. At the trial, Janette Groh stated she moved to Rhinelander because she had visited the area since she was a child and she and her former husband had many relatives there. She also said she believed that Rhinelander would provide a better environment for her and the children and that she could live more cheaply there. Janette Groh helped support the family by working part-time as a waitress. She also received $400 per month support payments from Edward Groh and an Aid to Families with Dependent Children grant.

During the trial, the judge found that the Rhinelander school system had "excellent" facilities for the children and that their special needs were identified and met. The children participated in a support group at school for children from divorced families.

Both a psychologist and family conciliation worker testified that custody should be retained by the mother. They did, however, emphasize the importance of the children continuing the close relationship they had with their father. The guardian ad litem, on the other hand, recommended that custody remain with the mother only on the condition that she return to Milwaukee. The family conciliation worker testified that the children told her they wished to remain with their mother and continue to live in Rhinelander.

There was testimony that the children enjoyed a very close relationship with both parents. The psychologist testified that to a reasonable degree of professional certainty that both parents were appropriate persons to have custody of the children. The court found that both parents were "fully competent" to have custody of the children. The court reviewed the factors set out in section 767.24(2), Stats. 1979-80 ¹ and determined that "the scale has not weighed one way or the other" in favor of either parent having custody of the children. Nevertheless, the court decided the mother could retain custody of the children only if she and the children moved to within fifty miles of Milwaukee.

The court based its decision on three factors: first, the distance that Edward Groh had to travel to see the children; second, the fact that the mother was only marginally employed and was receiving public assistance in Rhinelander; and third, the fact that Janette Groh had not remarried and had no close "romantic attachments". The court summarized these latter two factors by stating that "... everything that [Janette's] doing in Rhinelander can be done very easily in the City of Milwaukee."

In order for the trial court order to be enforceable, the court must have subject matter jurisdiction over the action, personal jurisdiction over the parties and the power to make the order. We conclude that while the trial court had personal jurisdiction over the parties and subject matter jurisdiction over the custody issue, it lacked authority or power to order the mother to move because of legislative action restricting the court's power.

In Dovi v. Dovi, 245 Wis. 50, 55, 13 N.W.2d 585 (1944), this court held that a circuit court, as a court of equity, had equitable jurisdiction arising from the Wisconsin Constitution to decide child custody in divorce actions even though no divorce was granted. That holding was reiterated in Subrt v. Subrt, 275 Wis. 628, 632, 83 N.W.2d 122 (1957). However, the court in Dovi recognized that while legislation was not necessary to confer jurisdiction on the trial court in custody matters, the legislature could regulate "... the exercise of the equity jurisdiction of the court." 245 Wis. at 55, 13 N.W.2d 585.

The problem in Dovi was that a provision in the statutes that had previously been interpreted by the court as authorizing the court to make a custody award in a divorce action where no divorce was granted was repealed by the legislature. It was then argued that a trial court had no jurisdiction to make a custody award in a divorce action where no divorce was granted.

Recognizing that jurisdiction in divorce is entirely dependent on legislative authority, in Dovi, this court said:

"The plaintiff cites to our attention a number of cases to the effect that in Wisconsin it has long been held that the courts of this state have no common-law jurisdiction over the subject of divorce and that their authority is confined altogether to such express and incidental powers as are conferred by statute (citing cases) Such is undoubtedly the law." 245 Wis. at 53, 13 N.W.2d 585. (Emphasis added.) ²

Similarly, in Subrt, the statute in effect at the time did not address the question of awarding custody of minor children in an action for divorce where a divorce was not granted. In both cases, the trial courts were forced to fashion equitable remedies to protect the interests of the children involved.

However, where the legislature has set forth a plan or scheme as to the manner and limitation of the court's exercise of its jurisdiction, that expression of the legislative will must be carried out and power limitations adhered to.

The authority of the legislature to limit a court's power in awarding custody was recognized by this court in Hamachek v. Hamachek, 270 Wis. 194, 198-199, 70 N.W.2d 595 (1955), wherein this court said:

"Courts have no power in awarding custody of minor children other than that provided by statute. The only provision in the statutes for awarding custody of minor children to an institution or to a person other than the parents is that which is applicable to cases where both the mother and father are found unfit to have custody."

This paragraph was quoted with approval in Larson v. Larson, 30 Wis.2d 291, 297, 140 N.W.2d 230 (1966).

Under common law the father was entitled to the custody of the children unless a valid court decree declared otherwise. Wisconsin changed the rule by statute and provided that "Women shall have the same rights and privileges under the law as men in the ... care and custody of children..." (see discussion of this change in the law in Dovi v. Dovi, 245 Wis. at 56, 13 N.W.2d 585).

The rule then became that mothers were favored over fathers in the award of custody. As this court said in 1966 in Larson v. Larson, 30 Wis.2d at 299, 140 N.W.2d 230: "The rule that the law favors the mother as to the custody of the minor child is a strong and fundamentally a natural consideration in determining custody, ..."

But legislative perceptions change and in 1977 the legislature enacted section 767.24(2), Stats., that eliminated the maternal preference in custody determinations by providing: "In making custody determination, the court ... shall not prefer one potential custodian over another on the basis of the sex of the custodian...."

Recognizing that the trial court had jurisdiction over custody in this case, the question becomes one of whether the legislature has acted in such a manner as to preclude the court from ordering Janette...