Kritzik v. Kritzik
| Decision Date | 26 November 1963 |
| Citation | 21 Wis.2d 442,124 N.W.2d 581 |
| Parties | Natalie KRITZIK, Respondent, v. Robert KRITZIK, Appellant. |
| Court | Wisconsin Supreme Court |
Ray T. McCann, Leonard L. Loeb, Milwaukee, for appellant.
Ralph J. Podell, Milwaukee, for respondent.
Two issues are determinative of this appeal. They are:
1. Is a contribution to summer camp expenses a payment toward the 'education' or 'care and maintenance' of a child within the meaning of sec. 247.25, Stats.?
2. Was the trial court's determination, that the appellant's contribution of $1,000 to summer camp expenses was required by a change in the circumstances of the parties and that such contribution was in the best interests of the children, contrary to the great weight or clear preponderance of the evidence?
The trial court did not determine whether the contribution of the $1,000 was to be considered as a payment toward 'education' or a contribution to 'care and maintenance.' In our view it does not matter whether it is 'care and maintenance' or 'education', just so long as it is one or the other. Sec. 247.25, Stats., expressly provides for modification of the provisions of a divorce judgment concerning 'the care, custody, maintenance and education of any of the children, * * *.' 1 There is no statutory definition of the terms, 'care,' 'maintenance' or 'education.' Although in our opinion 'education' as used in sec. 247.25 should generally be confined to formal schooling, many learning experiences will not involve formal schooling with prescribed hours of attendance and classroom curricula, but will involve much less formal arrangements that may be closer to 'care' and 'maintenance' than 'education.' Summer camp experience is a learning experience that usually does not involve formal schooling; certainly it involves care and maintenance of the children and there may be and usually is a substantial amount of education connected with this experience.
The crucial issue on this appeal is whether or not the trial court's determination, that the appellant's contribution of $1,000 to summer camp expenses was required by a change in the circumstances of the parties and that such contribution was in the best interests of the children, is contrary to the great weight or clear preponderance of the evidence.
We must sustain the trial court's modification of a divorce judgment unless the determination is contrary to the great weight of the evidence. 2 Could a reasonable trial court have found it more probable than not, that a material change in the circumstances of the parties and the welfare of the children required the additional payment of $1,000 for summer camp expenses over and above Mr. Kritzik's regular support payments?
We have held that the party seeking to alter a divorce judgment carries the burden of persuasion as to whether such modification is justified by a material change in the circumstances of the parties. 3 When the party who has custody of children under a divorce decree seeks additional aid from the court, it is reasonable to require her to demonstrate that the circumstances upon which the existing support payments were predicated have materially changed, thus justifying an increase in support payments. In the instant case the respondent was required to demonstrate that it was more probable than not that the circumstances of the parties had materially changed. She met her burden.
In 1957, at the time the original support payments were calculated, the children were six, three, and two years old. They certainly were not of camp-going age. By 1963, the children were aged twelve, nine, and eight. At this age, summer camp experience is quite normal. New needs arising out of the fact that the children have simply grown older have been deemed a substantial change in circumstances, justifying modification. 4 Growing old enough to present the need for summer camp is also a sufficient change in circumstances to justify a modification in the support if other prerequisites are met.
A second relevant factor relating to change in circumstances is the ability of the husband to pay the increased support payments. It is not necessary for the party seeking the change in the support payment to demonstrate that the husband's ability to pay has substantially increased. It is sufficient to demonstrate that the husband in his present economic position can absorb the increased expenditure. The respondent alleged that her husband could easily meet this expenditure and at the hearing he stipulated that this was in fact so.
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. 5 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 divorce are always disadvantaged parties and that the law must take affirmative steps to protect their welfare.
The trial court may, on his own initiative, gather information on the question of whether a proposed change enhances the welfare of the children. 6 This information may be in addition to the evidence produced by either party as to whether the proposed modification will serve the best interests of the children. Thus, the trial court is not a passive agent bound by the information supplied by the parties on this issue. When...
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State ex rel. Lewis v. Lutheran Social Services of Wisconsin and Upper Michigan
...(1946), 248 Wis. 593, 602, 22 N.W.2d 685.20 Welker v. Welker (1964), 24 Wis.2d 570, 578, 129 N.W.2d 134, 139.21 Kritzik v. Kritzik (1963), 21 Wis.2d 442, 448, 124 N.W.2d 581, 585.22 Wendland v. Wendland (1965), 29 Wis.2d 145, 157, 138 N.W.2d 185, ...
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...from court interference unless the court is convinced that the welfare of the child demands judicial intervention); Kritzik v. Kritzik, 21 Wis.2d 442, 124 N.W.2d 581 (1963) (educational decisions for a child are left to the custodial of the twins. Also, Larry expresses no disagreement about......
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Krause v. Krause, 58
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