Pollock v. Pollock

• Decision Date: 05 June 1956
• Citation: 273 Wis. 233,77 N.W.2d 485
• Parties: Audree POLLOCK, Respondent, v. Kenneth Charles POLLOCK, Appellant.
• Court: Wisconsin Supreme Court

Page 485

77 N.W.2d 485

273 Wis. 233

Audree POLLOCK, Respondent, v. Kenneth Charles POLLOCK, Appellant.

Supreme Court of Wisconsin.

June 5, 1956.

Other facts are set forth in the opinion.

Godfrey & Godfrey, Elkhorn, for appellant.

Kenney, Korf & Pfeil, Elkhorn, for respondent.

STEINLE, Justice.

The principal questions raised upon this appeal are as follows:

Did the court abuse its discretion in awarding the custody of the minor child of the parties to the respondent, Audree Pollock?

Is the order of the court divesting respondent of the custody after August 31, 1960, invalid?

Was the trial court without power to adjudicate alimony in this action, the Washington court's divorce decree being silent as to alimony?

In view of the Washington decree of divorce, is the respondent barred from obtaining an order for attorney fees for services rendered on her behalf in an action brought by her in this state to obtain the custody of the child?

Was the trial court without power to direct a contribution by the appellant toward the respondent's attorney fees and expenses upon this appeal?

The record discloses that in June, 1955, when this action was tried, the parties were 25 years of age respectively. Kenneth Pollock met Audree in 1949 while he was in the service of the United States Naval Air Force and was stationed on Whidby Island, located about 90 miles south of Vancouver. Audree lived and worked in Vancouver. Shortly after the marriage of the parties in April, 1951, Kenneth was detailed to accompany his Naval outfit on maneuvers in the vicinity of Whitby Island, Alaska and Okinawa. While so engaged in the summer of 1951, he became stricken with polio. He was hospitalized at Okinawa and at Oakland, California. At first his condition was diagnosed as encephalitis, but several months later medical authorities of the Navy changed the diagnosis to poliomyelittis. In September, 1951, he was transferred to the Bremerton Naval Base where he was confined as an inpatient until July, 1952, and during part of which time he was almost completely paralyzed. After Kenneth was released from the hospital as an inpatient, the parties lived together with the child at Bremerton until June 22, 1954. They occupied a residence in which they acquired an equity. The wife, in addition to performing her household duties, caring for the child and partially nursing her husband, at times had gainful employment away from the home. The husband had been an outpatient at the hospital for a considerable time after his release from there as an inpatient. After his physical condition had bettered, he began to drive an automobile and took Audree to and from work. In September, 1953, he entered a university at Seattle. He commuted by automobile from Bremerton to Seattle, a distance of 12 miles, partly by ferry, to attend his classes. He continued as a student at the university until he left for Whitewater, Wisconsin on June 22, 1954. He did not return to the State of Washington thereafter.

On June 22, 1954, at about 10 a. m., Kenneth drove Audree to her place of employment. He agreed to call for her at 6 p. m., when she finished work. However, he failed to appear. Upon her return to the home she found a note written by him which read: 'Well, we're gone. Don't try to find us. My lawyer will contact you in a couple of days.' Upon discovering that the husband had gone and had taken the child, Audree became upset and hysterical. She was attended by neighbors. The disappearance of the husband and child was reported to the police. On June 23, 1954, Audree consulted the district attorney. He suggested that she commence a divorce action. Through Red Cross she learned that Kenneth had taken the child to the home of his parents in Whitewater, Wisconsin. On June 27, 1954 she telephoned to him. Audree testified at the trial that in said telephone conversation she had asked Kenneth to return to their home at Bremerton. Kenneth testified that he asked her to come to Whitewater to live. On July 7, 1954 the summons and complaint in the divorce action were served on the defendant in Whitewater. He did not appear in that action. The wife remained in the Seattle area and worked there until about the time of the commencement of this action. The child stayed at the home of the husband's parents. On March 7, 1955 the court ordered that the child be placed in the care of Walworth County Welfare Department pending the trial. After attending the preliminary hearing of the matter in the County Court of Walworth County at Elkhorn in early March, 1955, the wife, accompanied by her mother, went to San Diego, California where she obtained a position as an office worker. She set herself up in residence with her mother in that city. Kenneth matriculated at a university in Wisconsin in February, 1955. He is engaged in studies preparatory to teaching. Audree came from San Diego to Wisconsin with her mother to attend the trial. With permission of the court she took the child to San Diego when its custody was awarded to her.

In its findings of fact the court determined that Audree had procured a divorce in Washington on November 4, 1954, in an action wherein Kenneth was served personally in Wisconsin and in which action he made no appearance. Amongst other findings particularly pertinent on this appeal are the following:

'That on June 22, 1954, the defendant 'spirited away' the minor child, Keith, from the home in Bremerton, Washington without the knowledge or consent of the plaintiff and with the purpose of depriving the plaintiff of any privilege or seeing the child and with the intention of keeping his whereabouts and those of the child unknown to the plaintiff, all with the result that the plaintiff suffered an emotional upset.

'That the defendant, after deserting the plaintiff, on June 22, 1954, took the minor child, Keith, to Whitewater, Wisconsin to the home of his parents and kept the child there entirely separated from the plaintiff until this court intervened * * * that this desertion left the plaintiff without financial means to pursue the defendant.

'That the defendant refused to furnish the plaintiff financial assistance to make it possible for her to come to Wisconsin; that instead, he demanded that the plaintiff make no effort to come to Wisconsin to seek the custody of the minor child, Keith.

'That the defendant deserted the plaintiff and forced her separation from her son on June 22, 1954, because of his baseless suspicious and distrust of his wife's disloyalty to their marriage.

'That the defendant, at the time that he deserted his wife, was suffering from a physical and mental disease which affected his reasoning.

'That the plaintiff is and was an intelligent, patient, sympathetic, understanding healthy woman with good morals.

'That the plaintiff was at all times, prior to June 22, 1954, a devoted, capable and understanding mother who attended to the minor child, Keith, with love and affection.

'That the minor child, Keith, needs the love, care and affection of his mother, the plaintiff.

'That the defendant has made considerable improvement of his physical condition, but is still physically handicapped and still is possessed with a mental instability which may affect his reasoning and judgment.

'That the plaintiff is able bodied and self-supporting; that the defendant is a student * * * and presently dependent for his support on a monthly Veteran's allotment of $325 which is granted to him by the Federal Government.

'That the plaintiff now lives with her mother, Mrs. Woods, in California; that both she and her mother are employed.

'That the plaintiff has an equity in a home in Bremerton, Washington, which was set over to her by the Washington divorce decree; that said home originally cost $3,200 and that the unpaid balance of purchase price due on said contract, at the time of the divorce, exclusive of interest, is the sum of $1,600; that since the above entitled action was commenced, the plaintiff was required to borrow $600 to finance the expenses of her trips to Wisconsin in connection with this litigation and that the home presently bears the additional encumbrance to secure this loan of $600.

'That neither the plaintiff or her mother, Mrs. Woods, have reserve funds of any kind except such as they can draw upon by reason of the equity in the Bremerton property.

'That the plaintiff's mother, Mrs. Woods, desires and stands ready, willing and able to assist the plaintiff financially and otherwise to maintain and educate the minor child, Keith.

'That the defendant has received a total sum of government allotment payments, between the period from January 7, 1953 to May 31, 1955, in the amount of $9,501.

'That the plaintiff, by reason of the present action, was required to make two trips from Bremerton, Washington to Elkhorn, Wisconsin, in connection with the trial of the issues of this action which was financed entirely at her expense. * * *

'That the wife and mother, Audree Pollock, was required after the husband, Kenneth, became ill, to work in order to supplement their meager income and that such help as they received from the senior Pollocks was nominal only.

'That the condition of the child when it arrived at the Pollock home in Whitewater in June, 1954, indicated that the child had been well cared for by the mother and father at Bremerton; that the child received good care in the home of its paternal grandparents and that the only reason the child was removed therefrom pending the trial was to preserve the status quo and insure the child's appearance at the trial, * * *.'

Appellant especially challenges that finding of the court which declares that he is still possessed of mental instability that may affect his reasoning and judgment. In pressing for a reversal of such finding, appellant points to evidence--medical and lay--introduced on his behalf to the effect that since he came to Wisconsin there has been no episode indicating mental...