Krause v. Krause, 58

• Decision Date: 01 May 1973
• Docket Number: No. 58,58
• Citation: 58 Wis.2d 499,206 N.W.2d 589
• Parties: Lynne KRAUSE, now known as Lynne Kinney, Respondent, v. Philip KRAUSE, Appellant.
• Court: Wisconsin Supreme Court

Page 589

206 N.W.2d 589

58 Wis.2d 499

Lynne KRAUSE, now known as Lynne Kinney, Respondent, v. Philip KRAUSE, Appellant.

No. 58.

Supreme Court of Wisconsin.

May 1, 1973.

Graunke & Boone, Wausau, for appellant.

O'Melia, Kaye & Melby, Rhinelander, for respondent.

CONNOR T. HANSEN, Justice.

Before reaching the issue raised on this appeal, we would observe that the plaintiff requests this court to set aside those portions of the order that cancels the support money arrearages due the plaintiff and that withholds the payment of further prospective support money payments until such time as the plaintiff obtains the permission of the court to remove the children to the State of Florida or returns to the State of Wisconsin with the children and makes it her residence. The plaintiff further assigns as error, the trial court's dismissal of her order to show cause seeking removal of the children to Florida. However, the plaintiff has filed neither a motion to review nor a cross-appeal as required by sec. 274.12, Stats. ² Therefore the issues which plaintiff seeks to raise are not properly before this court.

The sole issue before this court is whether the trial court erred in requiring the defendant to make support money payments commencing March 1, 1972.

It is undisputed that the plaintiff not only removed the parties' minor children to Florida without the permission of the court which granted the original judgment of divorce, but did so in such a manner that for a period of approximately fourteen months the defendant did not know their whereabouts. Such action on her part has greatly inconvenienced, if not practically defeated, the defendant's rights of visitation as provided in the original judgment of divorce.

Defendant contends that he owes no duty to support his children while the plaintiff and the children remain outside the State of Wisconsin without permission of the court, because his visitation rights are thereby defeated. This contention is not entirely correct. Regardless of the difficulties that may exist between the plaintiff and the defendant, and absent an adoption or termination proceeding, the parties to this action will always be the mother and father of these two children. Both visitation rights and support payments can directly affect the best interests of the children.

In those jurisdictions that have considered this issue, some refuse to recognize disobedience of the decree of divorce by the former wife as grounds for withholding support money payments, and others have upheld the authority of the court to do so. ³ In discussing a similar question, the Supreme Court of Oregon, in Levell v. Levell (1948), 183 Or. 39, 44, 190 P.2d 527, 529, stated:

'1. The decisions of the various courts disclose a great diversity of opinion as to the proper solution of problems of this kind, but practically all of them agree that the decision rests in the sound discretion of the court and that the welfare of the children is the consideration of paramount importance. . . .' ⁴

The majority of jurisdictions have considered the question not one of power but one of discretion ⁵ with the welfare of the children as the court's controlling consideration. In a case similar to the one at bar, the court in Levell v. Levell, supra, p. 49, 190 P.2d p. 531, in considering all the probabilities of an order suspending child support payments until the mother returns with the children to the jurisdiction of the trial court, stated:

'. . . This somewhat resembles the punishment of the children for the wrong of the plaintiff. We are not disposed to deprive the children of the benefit of the contributions which are required from the defendant under the decree of the court without evidence satisfactorily showing that those contributions are no longer necessary for the proper maintenance and support of the children. . . .'

In the case now before us, the trial court did not suspend child support payments or modify the amount to be paid.

This court has consistently held that a father's duty to support his minor children rests upon not only moral law but legally upon the voluntary status of parenthood which the father assumed. ⁶ A divorce terminates only the relationship of husband and wife, and does not affect in any manner the parental relations or duties. Hutschenreuter v. Hutschenreuter (1964), 23 Wis.2d 318, 321, 127 N.W.2d 47; Spring v. Spring (1962), 16 Wis.2d 460, 463, 114 N.W.2d 807; Romanowski v. Romanowski (1944), 245 Wis. 199, 203, 14 N.W.2d 23. Even though the husband's duty to support his minor children may become an onerous burden, it is present and will be recognized. Gissing v. Gissing (1961), 13 Wis.2d 556, 559, 108 N.W.2d 916.

The trial court recognized this obligation on the part of the defendant, and in the original judgment of divorce provided that the father shall make child support payments in the amount of $100 per month. It can be assumed that this determination was based upon the needs of the children and the ability of the defendant to pay. ⁷

Such a determination by the trial court in the original divorce action is not res judicata, in the strict sense of the term, upon the issue of support. The trial court has the power to make reasonable provisions concerning the care, custody, maintenance and education of the minor children of the parties involved in an annulment, divorce, or legal separation, Block v. Block (1961), 15 Wis.2d 291, 295, 112 N.W.2d 923; and thereafter, the trial court has the jurisdiction at any time to modify those provisions. ⁸ The court retains such jurisdiction even in a situation where the children are subsequently domiciled outside the state, Block v. Block, supra; Anderson v. Anderson (1959), 8 Wis.2d 133, 98 N.W.2d 434; Brazy v. Brazy (1958), 5 Wis.2d 352, 92 N.W.2d 738, 93 N.W.2d 856. Where such modification is made, the question on appeal is whether there has been an abuse of discretion. Anderson v. Anderson, supra, p. 142, 98 N.W.2d 434. However, while it is a rule of 'almost universal application' ⁹ that a court may modify the provision of a judgment of divorce relating to support money, it may do so only when there has been a substantial or material change in the circumstances of the parties or children. ¹⁰ It is also well settled that the party seeking to alter the provisions of the judgment carries the burden of proof as to whether such a modification is justified. Thies v. MacDonald, supra; Foregger v. Foregger (1970), 48 Wis.2d 512, 522, 180 N.W.2d 578. However, a material change in the circumstances of the parties is not in itself sufficient. This court, in Kritzik v. Kritzik (1963), 21 Wis.2d 442, 448, 124 N.W.2d 581, 585, stated:

'A material change in the circumstances of the parties, while a necessary condition for modification, is not in itself sufficient. There must also be a finding that meeting new needs would be in the best interests of the children. In making his determinations as to what conditions of a divorce judgment would best serve the interests of the children involved, the trial court does not function solely as an arbiter between two private parties. Rather, in his role as a family court, the trial court represents the interests of society in promoting the stability and best interests of the family. It is his task to determine what provisions and terms would best guarantee an opportunity for the children involved to grow to mature and responsible citizens, regardless of the desires of the respective parties. This power, vested in the family court, reflects a recognition that children involved in a divore are always disadvantaged parties and that the law must take affirmative steps to protect their welfare.'

While the instant case is concerned not only with the modification of the judgment of divorce but also the enforcement of the original judgment of divorce, the issue still presents a question of trial court discretion. And while the trial court has a proper and wholly necessary interest in maintaining the integrity of its orders, such a goal should not be indifferent to the welfare of the children involved. The controlling factor must still be the best interests of the children.

Although the original judgment of divorce did not specifically order the plaintiff to remain within the court's jurisdiction, it is apparent from the nature of the court's continuing jurisdiction over the welfare of the children, and the provision in the judgment relating to visitation rights of the defendant, that permission of the court to remove the children from its jurisdiction is necessary. In Whitman v. Whitman (1965), 28 Wis.2d 50, 61, 135 N.W.2d 835, 841, this court determined that:

'The family court, by virtue of sec. 247.25, Stats., is obligated to retain jurisdiction for custody purposes. The minor children are, in a sense, wards of the court. Even though the courts of our sister states accord 'full faith and credit' to the judgments and orders of the courts of this state, the enforcement of those orders may become, as a practical matter, cumbersome and prohibitively expensive.

'We subscribe to the statement in 2 Nelson, Divorce and Annulment (2d ed., 1961 rev.), p. 267, sec. 15.20:

"A party who has been awarded (the) custody of a minor child should procure leave of court, by an order properly entered in the cause in which the custody was awarded, before taking (the) child out of the state."

The record, therefore, indicates misconduct on the part of the plaintiff.

However, the removal by the mother of the parties' minor children from the jurisdiction of the court which entered the judgment of divorce, and the subsequent inconvenience or destruction of the father's rights of visitation, while some excuse for the nonpayment of support money payments, it is not an adequate excuse. Campbell v. Campbell (1875), 37 Wis. 206, 224. This court has previously held that a father's liability for the support of his minor children continues...