Koslowsky v. Koslowsky

• Decision Date: 07 January 1969
• Citation: 163 N.W.2d 632,41 Wis.2d 275
• Parties: Norman L. KOSLOWSKY, Respondent, v. Kay KOSLOWSKY, a/k/a Kay Koslowsky Fengler, Appellant.
• Court: Wisconsin Supreme Court

Page 632

163 N.W.2d 632

41 Wis.2d 275

Norman L. KOSLOWSKY, Respondent, v. Kay KOSLOWSKY, a/k/a Kay Koslowsky Fengler, Appellant.

Supreme Court of Wisconsin.

Jan. 7, 1969.

Westring & Martinson, Green Bay, for appellant.

Donald J. Plier, Oconto, for respondent.

BEILFUSS, Justice.

Kay, the appellant mother, contends that the trial court abused its discretion by virtue of erroneous applications of the law. She argues (1) that the trial court did not apply the rule that the mother is to be favored in custody matters; (2) that the court erroneously concluded that there must be a substantial showing of a change of circumstances because of the custody stipulation; (3) that the court erred in considering the mother's prior conduct; and (4) that the evidence does not support the trial court's findings and opinions as to the welfare of the children.

Basic to this court's review of custody disputes are the rules, often repeated:

'The trial court has wide discretion in determining custody matters, and its decision will not be upset unless there is evidence of a clear abuse of discretion. Wedland v. Wendland (1965), 29 Wis.2d 145, 138 N.W.2d 185; Belisle v. Belisle (1965), 27 Wis.2d 317, 321, 134 N.W.2d 491.' Farwell v. Farwell (1967), 33 Wis.2d 324, 327, 147 N.W.2d 289, 291.

'This court strongly defers to the trial court's findings in custody matters. The reason for this is, of course, the uniqueness of the situation involved in each custody award and the broad understanding of the particular problem which the trial court can achieve in the course of the hearing, which can never quite be duplicated by an appellate court upon a review of the record. We have stated in Whitman v. Whitman (1965), 28 Wis.2d 50, 56, 135 N.W.2d 835, 838:

"'This court relies heavily upon the determination by the trial court.' * * * Especially important is the fact that the trial court is in a better position than this court to determine the best interests of the children, * * * and to see and observe the parties and the way in which they conduct themselves." Sommers v. Sommers (1966), 33 Wis.2d 22, 26, 27, 146 N.W.2d 428, 430.

There is no question but that our law recognizes the rule that other things being equal, the custody of the children with the mother is favored, especially with young children. ¹ However, this legal guideline is subservient to the paramount rule that custody of minor children must depend upon what is in the best interests of the child's welfare. The best interests of the child rule applies whether the court is considering custody in the first instance or upon subsequent consideration and, because of the public interest in the welfare of children, transcends an agreement or stipulation of the parties. ²

At the hearing to change the custody in September of 1967, quite extensive testimony and other proof was offered by both parties as to the past conduct of Kay; the present habits and manner of living of the parties and the children; the nature of the care, affection and guidance given to the children by Norman and his parents, and by Key and her present husband at the times of visitation; the physical facilities of Norman's parents' home and Kay's present home; the educational, recreational and religious training of the children, and reports and evaluations by public welfare personnel following an investigation of the parties and their homes.

In considering the evidence the trial court stated, in part:

'It is not my belief that this woman should be penalized forevermore because of her conduct of several years ago * * * Such conduct is material now only in two respects. Frequently, future conduct of individuals can be predicted by a study of that individual's past conduct. A sound second reason, in my opinion, is that the parties stipulated that Norman should have the permanent care, custody and control of these children. There should appear some good reason why that stipulation should now be set aside.'

The statement that '* * * * the parties stipulated that Norman should have the permanent care, custody and control of these children. There should now be some good reason why that stipulation should now be set aside,' standing alone and taken out of the context of the court's opinion is probably not technically correct.

The divorce in this case was uncontested. No hearing was had on the question of fitness nor a finding of fitness made. Prior to the divorce a hearing was had on the matter of temporary custody. Custody was awarded to Norman on the ground that Key had abandoned the children. At the divorce proceedings, testimony of the plaintiff and a witness was taken to substantiate the allegations of the complaint. Whether testimony was taken calculated to ascertain the best interests of the children is not known. A reading of the record indicates that the court in granting the divorce relied primarily on the stipulation. In such a case the court's determination is not res judicata and the rule of substantially or materially changed circumstances does not apply. King v. King (1964), supra.

Under these circumstances the court should examine the question of fitness anew, using past conduct only as a guide to possible future conduct in view of existing circumstances. The paramount test again at this juncture must be 'what is in the best interests of the minor child.' However, in those instances where the record reveals that the questions of fitness or comparative fitness of the respective parents and the...