Jenkins v. Jenkins

Decision Date08 March 1921
Citation173 Wis. 592,181 N.W. 826
PartiesJENKINS v. JENKINS.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Douglas County; Solon L. Perrin, Judge.

Action for divorce by William J. Jenkins against Gladys Jenkins. From judgment for plaintiff, defendant appeals. Judgment modified, and as modified affirmed.

Action for divorce. Plaintiff and defendant were married November 25, 1911, at Duluth, Minn., and were divorced by the judgment herein December 21, 1920. At the time of the trial plaintiff was 36 years of age and defendant 26. Three children were born to them, William S., aged 8 years, Allen, aged 5, and Eugene, aged 3 years. Defendant without cause left plaintiff about the 11th day of March, 1918, taking the youngest son with her. Since then up to the time of the trial he has lived with her and the other two children remained with their father. The court granted the custody of all the children to the father, permitting defendant to visit them at reasonable times. The plaintiff earns about $150 per month, and the defendant had a salary of $128 per month at the time of the trial. She is living with her parents in Duluth, and he is living in Superior. Defendant appealed from the judgment, alleging that the court erred in granting the custody of the boy Eugene to plaintiff instead of to herself, and it erred in the division of property that was made and in its refusal to grant her suit money.Luse, Powell & Luse, of Superior, for appellant.

Grace, Fridley & Crawford, of Superior, for respondent.

VINJE, J. (after stating the facts as above).

[1][2] The trial court found that both the plaintiff and the defendant were morally fit and financially able to care for one or all of the children, and it reached the conclusion that it was for the best interests of the children that they should be brought up as one family and that the plaintiff should have the custody of all. It must be admitted that the trial court proceeded upon the right conception of the law, namely, that the result reached should subserve the best interests of the minor children. Welch v. Welch, 33 Wis. 534;Johnston v. Johnston, 89 Wis. 416, 62 N. W. 181;Markwell v. Pereles, 95 Wis. 406, 69 N. W. 798. It is also borne in mind that the conclusion of the trial court should not be disturbed unless clearly wrong. Welch v. Welch, 33 Wis. 534. In view of these well-established principles of law, should the court modify the decree as to the custody of the children? A correct answer to the question requires a somewhat fuller statement of the cause for the decree of divorce. Defendant when married was only 17 years old, and plaintiff was then 27 years of age. They lived for a while with defendant's father and mother, but that did not prove satisfactory, and the young couple established a home of their own. It is apparent that “her folks and his folks” did not harmonize and the same is true as to plaintiff and defendant's parents. Much of the discord between the parties was aggravated, if not induced, by her parents. On the other hand, there seems to be some ground for their conduct. The plaintiff at times drank some and enjoyed dances and parties that his wife did not relish, though she says he never abused her when he drank, and that his lapses from sobriety were neither frequent nor excessive. They both testify to the fact that she frequently entreated him to be better, though it is not very clear just in what his failing consisted. He says he promised to be better, and she says that for periods he was better. Her parents were Presbyterians and she was a Methodist. It does not appear that he belonged to any church. In March, 1918, she left him without cause, as the trial court found, and steadily refused to return to live with him, though he urged her to do so and was able and willing to provide a suitable home for her. She had left him temporarily several times before, but had gone back. She says her love for her husband is...

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15 cases
  • Dumas v. City of Dallas
    • United States
    • U.S. District Court — Northern District of Texas
    • September 12, 1986
    ...a mother's love and the atmosphere of heaven, and ... no child should be deprived of that maternal influence"); Jenkins v. Jenkins, 173 Wis. 592, 181 N.W. 826, 827 (1921) ("nothing can be an adequate substitute for motherly love"). The attitudes have been persistent. See Hall v. Small Busin......
  • State ex rel. Watts v. Watts
    • United States
    • New York Family Court
    • August 8, 1973
    ...this respect is fundamental, and the law should recognize it unless offset by undesirable traits in the mother.' (Jenkins v. Jenkins, 173 Wis. 592, 181 N.W. 826, 827, 1921). Later decisions have recognized that this view is inconsistent with informed application of the best interests of the......
  • Scolman v. Scolman
    • United States
    • United States State Supreme Court of Wisconsin
    • March 4, 1975
    ...701 (custody awarded to mother).9 (1974), Minn., 220 N.W.2d 487.10 Kritzik v. Kritzik (1963), 21 Wis.2d 442, 124 N.W.2d 581.11 (1921), 173 Wis. 592, 181 N.W. 826.12 See, e.g., Welker v. Welker (1964), 24 Wis.2d 570, 578, 129 N.W.2d 134; Peterson v. Petersen (1961), 13 Wis.2d 26, 30, 108 N.W......
  • Pikula v. Pikula
    • United States
    • Supreme Court of Minnesota (US)
    • November 8, 1985
    ...give because in her alone is duty swallowed up in desire; in her alone is service expressed in terms of love. Jenkins v. Jenkins, 173 Wis. 592, 593, 181 N.W. 826, 827 (1921). While at one time the tender years doctrine was universally adopted in the state courts, most jurisdictions have rep......
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1 books & journal articles
  • Beyond economic fatherhood: encouraging divorces fathers to parent.
    • United States
    • University of Pennsylvania Law Review Vol. 153 No. 3, January 2005
    • January 1, 2005
    ...had cared for them, and thus were presumed more competent to meet their needs than were fathers."). (203) See, e.g.,Jenkins v.Jenkins, 181 N.W. 826, 827 (Wis. 1921) ("ℕothing can be an adequate substitute for mother love--for that constant ministration required during the period of nurture ......

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