de Montigny v. de Montigny

• Decision Date: 02 October 1975
• Docket Number: No. 170,170
• Citation: 70 Wis.2d 131,233 N.W.2d 463
• Parties: Barbara de MONTIGNY, Appellant, v. Lionel de MONTIGNY, Respondent.
• Court: Wisconsin Supreme Court

Page 463

233 N.W.2d 463

70 Wis.2d 131

Barbara de MONTIGNY, Appellant, v. Lionel de MONTIGNY, Respondent.

No. 170.

Supreme Court of Wisconsin.

Oct. 2, 1975.

Roy T. Traynor, Wausau, for appellant.

Evrard, Duffy, Holman, Faulds & Peterson, Green Bay, for respondent.

HEFFERNAN, Justice.

This appeal is from the granting of a modified judgment of the county court of Shawano-Menominee county that transferred custody of the de Montigny children from the mother, Barbara, with whom the children had been placed following the divorce, to their father, Lionel.

The defendant, Lionel, has moved to dismiss the appeal, contending that, because the appeal was taken from the judge's post-hearing 'decision' and not from the amended judgment filed at a later date, the purported appeal is not within the jurisdiction of this court.

We conclude that this court has jurisdiction to proceed. The appeal was properly taken from the judge's 'decision.' Divorce and actions affecting marriage are 'sui generis,' and an appeal may be taken from the 'granting' of a judgment. Appeal need not be from a filed judgment or docketed order.

Nevertheless, we decline to proceed with a disposition on the merits. Rather, we vacate and remand for further proceedings, because, contrary to the mandate of sec. 247.045, Stats. (Supreme Court Order, 50 Wis.2d ix), and the repeated admonitions of this court, the trial judge, in a matter where there was abundant 'reason for special concern as to the future welfare of the minor children,' failed to appoint a guardian ad litem to represent the minor children.

The plaintiff, Barbara de Montigny, was granted a divorce and custody of the five children of the parties on May 25, 1973. Judgment of divorce was not entered until November 26, 1973. In May of 1974, the defendant, Lionel de Montigny, sought, by order to show cause, to have the custody of the five children transferred to him. A hearing on Lionel de Montigny's petition was held on June 6, 1974. On June 11, 1974, the trial judge issued a 'decision,' in which he stated:

'. . . I am going to change the custody . . .. I am retaining jurisdiction . . . regardless of whether or not I am permitting them to move out of the State . . .. The effective date of this new order will be July 1, 1974, when I expect the change in custody to be made. Also, this court will take up the offer of the defendant . . . that he will furnish her (plaintiff) with the tickets for round-trip transportation . . ..

'The balance of the judgment, not disturbed or contradicted by this decision, shall remain in full force and effect.'

On June 24, 1974, plaintiff served a notice of appeal from the June 11 decision. On June 27 the trial court formally entered an amended judgment, which incorporated the change in custody granted in the decision of June 11.

The defendant promptly objected to the jurisdiction of this court on the ground that the action of the county court on June 11, 1974, did not constitute a judgment or an appealable order. Although defendant would concede that this court has subject matter jurisdiction over an appeal from the June 27, 1974, judgment, defendant argues that no appeal was taken from that judgment, and, accordingly, that this court is without personal jurisdiction and can only dismiss.

Defendant relies on the generally accepted rule in respect to appealable orders. Appealability, in ordinary actions subject to the provisions of sec. 274.33, Stats., has been recently exhaustively discussed in Walford v. Bartsch (1974), 65 Wis.2d 254, 222 N.W.2d 633. Sec. 274.33(1) provides:

'274.33 Appealable orders. The following orders when made by the court may be appealed to the supreme court:

'(1) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken.'

Defendant correctly asserts that the action of the trial judge, although arguably an order, and determinative of substantial rights of the parties, nevertheless fails under the sec. 274.33(1), Stats., test, because it did not prevent the entry of a judgment, and in fact on its face contemplated the subsequent entry of an amended judgment. Sec. 274.33(1), however, is not determinative of the appealability of the judicial action here under scrutiny.

Sec. 274.01, Stats., refers to the time within which an appeal can be taken to this court and makes it clear that the time limit there imposed may vary in other circumstances and be subject to statutory exceptions elsewhere.

One such exception is set forth in sec. 247.37(4), Stats., which provides:

'Such judgment (of divorce) or any provision of the same, may be reviewed by an appeal taken within 6 months from the date when such judgment was granted.' (Emphasis supplied.)

This statute makes it clear that not only is the time for appeal to be varied in divorce actions, but also that the event that triggers the appeal is not the entry of a judgment, but its 'granting.'

Thus, the time within which an appeal can be taken in matrimonial matters is to be computed from the time of the judge's pronouncement or granting of the proposed judgment. It was so held in Holschbach v. Holschbach (1966), 30 Wis.2d 366, 141 N.W.2d 214, in respect to the effective date of legal separation, and in Brackob v. Brackob (1953), 265 Wis. 513, 61 N.W.2d 849, in respect to the date from which an appeal must be taken to this court from a judge's oral pronouncement of a divorce. Brackob also stated that property of the parties was to be valued on that date and not on the date a judgment might eventually be entered.

Brackob relies upon Zahorka v. Geigh (1906), 129 Wis. 498, 109 N.W. 552. That case cited with approval the proposition that in divorce cases a "(j)udgment becomes rendered and the rights of the parties established at the time the court pronounces its decision . . .." (p. 505, 109 N.W. p. 555)

Holschbach, supra, relies upon this rationale and makes clear that, in respect to matters affecting provisions of a divorce judgment, not only does the judge's decision trigger the time from which an appeal may be taken, but also commences the period within which an appeal must be taken. As Holschbach points out, an appeal taken within one year of the formal entry of a divorce judgment will not be timely if not taken within a year of the judge's decision in 'granting' judgment. The 'granting' of the judgment is the appealable event.

In the instant case, the amended judgment was granted on June 11, 1974, to be effective July 1, 1974. The judge's decision fixed the rights of the parties and commenced the running of the time for appeal. The 'granting' of the modified judgment by the decision of the trial judge on June 11 constituted a judicial act from which an appeal could be taken. The motion to dismiss is denied.

Sec. 247.045, Stats. ¹ (Supreme Court Order, 50 Wis.2d ix, July 1, 1971), requires that a guardian ad litem be appointed to represent minor children '(i) n any action . . . when the court has reason for special concern as to the future welfare of the minor children.'

In the instant case the only question before the trial judge was whether, in view of allegedly changed circumstances, a transfer of custody was warranted. The only matter at issue was the future welfare of the minor children of the divorced parents. During the course of the hearing, the trial judge indicated that any change of custody would be impelled by the possibility of the adverse effect on the children as the result of the proposed marriage of the mother. Yet, despite this expression of concern, the mandate of sec. 247.045, Stats., and the expressed willingness of the plaintiff's attorney that a guardian ad litem be appointed, the judge inexplicably failed so to act.

In some actions or proceedings affecting marriage, there may be no special concern for the welfare of the children, simply because the matter at issue will have little effect on the welfare of the children.

In the event the matter at issue may only peripherally affect the future welfare of the children, it is within the discretion of the trial judge to determine whether the concern is 'special' and requires the appointment of a guardian ad litem.

In a case such as this, however, it is an abuse of discretion, patently prejudicial, to fail sua sponte to appoint a guardian ad litem for the minor children. By definition, a petition for an order to show cause why the custody of minor children should not be changed raises a question of 'special concern' for the future of the minor children. A trial judge faced with a decision to continue a present custody or terminate it in favor of an alternate custody unless the petition for alteration of custody is on its face frivolous, is required to appoint a guardian ad litem for the children.

For more than twenty years this court has urged and sometimes insisted on the appointment of a guardian ad litem in disputed custody cases. Edwards v. Edwards (1955), 270 Wis. 48, 70 N.W.2d 22, 71 N.W.2d 366.

In Wendland v. Wendland (1965), 29 Wis.2d 145, 156, 138 N.W.2d 185, 191, we stated that, in some disputed custody cases, 'a guardian ad litem should be appointed.'

In Wendland, we recognized that children of a broken marriage were parties in interest entitled to representation. Accordingly, we pointed out that a guardian ad litem was 'an advocate for their interests.' (p. 156, 138 N.W.2d 185) As in Edwards, supra, 270 Wis. page 56b, 70 N.W.2d 22, 71 N.W.2d 366, we said that a guardian ad litem, as counsel to a party in interest, had the right and obligation to interview his clients, to make such investigation as he considers appropriate, to call witnesses in behalf of the children, and to cross-examine other witnesses.

It is clear that a guardian ad litem appointed to represent children is more than a nominal representative appointed to counsel and consult with the trial judge. Rather, he has...