Niesen v. Niesen

• Decision Date: 09 April 1968
• Parties: , 32 A.L.R.3d 1047 Sally R. NIESEN, Respondent, v. A. C. NIESEN, Jr., Appellant.
• Court: Wisconsin Supreme Court

Page 660

157 N.W.2d 660

38 Wis.2d 599, 32 A.L.R.3d 1047

Sally R. NIESEN, Respondent, v. A. C. NIESEN, Jr., Appellant.

Supreme Court of Wisconsin.

April 9, 1968.

Harvey, Weber & Gerard, by Richard G. Harvey, Jr., Racine, Adrian P. Schoone, Racine, of counsel, for appellant.

Stewart & Peyton, Racine, for respondent.

HALLOWS, Chief Justice.

The facts on the hearing were stipulated and it is claimed by the defendant the two boys by changing their surnames emancipated themselves and thus he was no longer obligated to support them. The issue might well be stated, whether minors of the age of approximately 20 and 18 years who legally forsake their father's name and embrace the surname of their mother's second husband are entitled to the continued support of their father.

A father's duty to support his child rests upon not only moral law but legally upon the voluntary status of parenthood which the father assumed. The relationship of parent and child gives rise to certain parental rights and duties and also to rights and duties of the child. The partial or total destruction of these rights is often referred to in the law as emancipation, which in most states automatically occurs by operation of law upon the child's reaching the age of majority excepting in cases of infirmity of mind or body rendering the child incapable of taking care of himself. The act emancipating a child prior to age 21 is generally the act of the parent and such emancipation is concerned more with the extinguishment of parental rights and duties than with the removal of the disabilities of childhood.

While it is often said emancipation cannot be accomplished by an act of the child alone, this is not always true. Marriage and entering into military service have been held to be acts of self-emancipation. In 39 Am.Jur., Parent and Child, p. 704, sec. 64, it is stated as a general rule that the fact that a child has entered into a relation which is inconsistent with the idea of being in legal subjection to his father or in a sense in bondage is sufficient to effect an emancipation. Emancipation may be partial or total and limited to certain purposes. It may prevent the parent from having a right to the earnings of his child and conversely, it may free parents under some circumstances from being responsible for the debts of the child because of the removal of the general disabilities of infancy. 67 C.J.S. Parent and Child § 89, p. 815; Annot. (1946), What amounts to implied emancipation of minor child, 165 A.L.R. 723. However, total or partial emancipation is personal to the parties and does not shift the responsibility to support from the father to the public.

There is no hard-and-fast rule to determine emancipation--much depends upon the circumstances and the intent of him who has the power to effect an emancipation. The facts in the record are scanty. Peter graduated from high school in June of 1964 and then attended the University of New Mexico. His tuition of almost $900 was paid by his mother and her second husband. Michael Wilson attended an eastern college for the school years of 1963 and 1964. He worked during the summers of 1963 and 1964 in Milwaukee where he earned about $2,000. During the summer of 1963 he lived at the YMCA, the cost of which he paid himself. During the summer of 1964 he lived at the home of his aunt in Milwaukee, where his father also lived. Tuition of approximately $3,000 for college was paid by his mother and stepfather. During these two years the defendant gave his son Peter goods in the sum of $250 and a 1959 automobile worth about $650. There is nothing in the stipulation which shows the plaintiff-mother encouraged Peter and Michael to change their surname, and no reason given for their action.

In the present case, we must consider emancipation not in the context of a normal, modern family but against a background of a divorce and a broken home and of a father who no longer has legal custody of his monor children who are university students. While granting legal custody in a divorce action to the mother does not technically emancipate the children from the father, it certainly affects the concept of emancipation. In such instances the emancipation doctrine does have a very substantial footing on relations existing between the child and his father. Here, the father had no legal control or custody of his sons and no right to their earnings. Such rights of control were transferred by the divorce decree to their mother and there is no claim of emancipation from her.

Considering the concept of emancipation as applicable to this issue, the majority of the court does not find an emancipation. Cases cited by the defendant are not controlling. In Brosius v. Barker (1911), 154 Mo.App. 657, 136 S.W. 18, the facts to support emancipation did not involve a change of surname by the child but included the leaving of home and the commencement of life completely independent from the parents. In Straver v. Straver (1948), 26 N.J.Misc. 218, 59 A.2d 39, a divorced father sought to have his 18-year-old girl declared emancipated by showing she had relinquished his surname and used that of her stepfather. She had also become estranged from him and was not obedient to him. However, the court pointed out in holding there was no emancipation that the 18-year-old daughter was only 2 years old at the time of the divorce and had used her stepfather's surname for over 14 years with her father's acquiescence. In Von Bernuth v. Von Bernuth (1909), 76 N.J.Eq. 200, 74 A. 252, the case turned on a refusal of the children to see their father and their unnatural hatred fostered by their mother; the reduction of support money seems to be based more on the ground of a penalty visited upon the mother than upon any doctrine of emancipation. See also Smith v. Smith (1964), 85 N.J.Super. 462, 205 A.2d 83; Cortina v. Cortina (Fla.App.1958), 108 So.2d 63; Annot. (1964), Violation of custody or visitation provision of...