Sang v. Sang

• Decision Date: 07 April 1942
• Citation: 3 N.W.2d 340,240 Wis. 288
• Parties: SANG v. SANG.
• Court: Wisconsin Supreme Court

240 Wis. 288

3 N.W.2d 340

SANG

v.SANG.

Supreme Court of Wisconsin.

April 7, 1942.

Appeal from a judgment and two separate orders of the County Court of Winnebago County; D. E. McDonald, Judge.

Action by Rudolph Sang against Dorothy Sang for divorce from bed and board and award of the care and custody of the parties' minor children to plaintiff or some other suitable person. From a judgment granting plaintiff an absolute divorce from the bonds of matrimony and awarding the children's custody to their maternal grandparents and orders denying plaintiff's motion for change of venue on his application for change of children's custody and directing him to deliver their custody to maternal grandparents, plaintiff appeals. [By Editorial Staff.]

Judgment and order as to children's custody reversed, and order denying motion for change of venue affirmed.

Action for divorce from bed and board commenced by the plaintiff-husband on April 5, 1940, and for an order awarding to him or some other suitable person the care and custody of Evelyn Mae Sang, age 9, and Barbara Ann Sang, age 8.

The parties intermarried at Oshkosh, Wisconsin, in December, 1930. Thereafter they moved to Chicago, Illinois, where they resided for a period of about six years. In September, 1939, they moved back to Oshkosh and there established their home. The complaint alleged cruel and inhuman treatment as grounds for divorce. The complaint alleged that the parties were bona fide residents of the state of Wisconsin. Defendant answered, denying the allegations of cruel and inhuman treatment, and alleged that the plaintiff-husband had treated her in a cruel and inhuman manner. The pleadings put in issue the respective fitness of each party to have the care, custody and control of the two minor children.

Case was tried to the court on November 22 and 25, 1940. On May 12, 1941, the court made and filed its findings of fact and conclusions of law. In addition to the formal findings the court found that at the time of the commencement of the action the parties were bona fide residents of the state of Wisconsin; that plaintiff was thirty-three years of age and the defendant twenty-seven years of age; that the parties have no property except a small amount of household furniture, the value of which does not exceed $50. The court further found that defendant had treated plaintiff in a cruel and inhuman manner; that the defendant is not a fit and proper person to have the care and custody of the minor children; that from April, 1940, until June 17, 1941, the children have been in the custody of the defendant's parents, the maternal grandparents, Mr. and Mrs. Frank Benes, in Indianapolis, Indiana; that said children were in the custody of such maternal grandparents without the consent of the plaintiff and over his protests.

As conclusions of law the court found that plaintiff is entitled to a divorce from the bonds of matrimony; that the defendant by her conduct towards the plaintiff is not entitled to any alimony or support money; that if the maternal grandparents of Indianapolis, Indiana, express in writing a willingness to accept the care and custody of the minor children, such children will be awarded to such grandparents subject to the right of visitation by the parents, and subject to the further order of the court which provided that the custody of the children during the summer vacation period shall be with the father at Oshkosh, Wisconsin; that during the time said children are with the grandparents plaintiff be required to pay such grandparents, until the further order of the court, the sum of $15 per month for the support of said children.

On August 19, 1941 judgment was entered in accordance with the findings of fact and conclusions of law as above indicated. The plaintiff appeals from the judgment; also from an order of the court dated September 9, 1941, which order denied plaintiff's motion for a change of venue on his application for a change of custody of the minor children after judgment was entered; and also from an order dated September 9, 1941, which order directed the plaintiff to deliver the custody of said minor children to their maternal grandparents at Indianapolis, Indiana, or be held in contempt of court.

Simon Horwitz, of Oshkosh (Sanborn, Blake & Aberg and Ernest H. Pett, all of Madison, of counsel), for appellant.

Bouck, Hilton & Dempsey and Joseph F. Dempsey, all of Oshkosh, for respondent.

MARTIN, Justice.

As appears from the foregoing statement, this was an action for divorce from bed and board commenced by the plaintiff-husband on April 5, 1940. The court granted plaintiff an absolute divorce from the bonds of matrimony. Since neither of the parties had been a bona fide resident of the state of Wisconsin for the two years next preceding the commencement of the action, the court had no power to grant a judgment of divorce from the bonds of matrimony. Sec. 247.06, Stats. 1939, so far as here material, provides:

“For purposes of divorce, either absolute or from bed and board, jurisdiction may be acquired by publication as provided in the statutes or by personal service upon the defendant within this state, under the following conditions:

“(1) When, at the time the cause of action arose, either party was a bona fide resident of this state, and has continued so to be down to the time of the commencement of the action, except that no action for absolute divorce shall be commenced for any cause other than adultery or bigamy, unless one of the parties has been for the two years next preceding the commencement of the action a bona fide resident of this state.

“(2) If, since the cause of action arose, either party, for at least two years next preceding the commencement of the action, has continued to be a bona fide resident of this state.”

Neither adultery nor bigamy is alleged. It is clear that neither party had been a bona fide resident of Wisconsin for the required period of time to confer jurisdiction for granting an absolute divorce. Under subsec. (1) of sec. 247.06, Stats., a divorce from bed and board might properly have been granted. In Shequin v. Shequin, 1915, 161 Wis. 183, 152 N.W. 823, and In re Estate of Kehl, 1934, 215 Wis. 353, 254 N.W. 639, the court held that the trial court may grant an absolute divorce although the prayer be for one from bed and board. However, in both cases the parties were bona fide residents of Wisconsin for two years next preceding the commencement of the action. Divorce proceedings are purely statutory, and all the requirements of the legislative enactment must be fulfilled in order to give the court jurisdiction.

The respondent contends that if the court erred in granting an absolute divorce instead of a divorce from bed and board, it is immaterial on the question of the custody of the children. Their custody having been awarded by the judgment and the court having no jurisdiction to enter the judgment it did, the whole judgment is void. It is void for the further reason that it awarded the custody to the maternal grandparents, residents of Indianapolis, Indiana. Sec. 247.24, Stats., so far as material, provides: “In rendering a judgment of nullity of marriage or for divorce, whether from the bond of matrimony or from bed and board, the court may make such further provisions therein as it shall deem just and proper concerning the care, custody, maintenance, and education of the minor children of the parties, and give the care and custody of the children of such marriage to one of the parties to the action, or...