Slawek v. Stroh

• Decision Date: 25 February 1974
• Docket Number: No. 313,313
• Parties: Paul Peter SLAWEK, Appellant, v. Crysta STROH et al., Respondents.
• Court: Wisconsin Supreme Court

Page 9

215 N.W.2d 9

62 Wis.2d 295

Paul Peter SLAWEK, Appellant, v. Crysta STROH et al., Respondents.

No. 313.

Supreme Court of Wisconsin.

Feb. 25, 1974.

Wheeler, Van Sickle, Day & Anderson, Madison, for appellant.

Tinkham, Smith, Bliss & Patterson, Wausau, for Crysta Stroh.

Jerome P. Tlusty, Schofield, gdn. ad litem for infant respondent.

BEILFUSS, Justice.

The issues presented both as to procedure and substantive law are quite complex. We turn first to the demurrer of the minor-defendant to the plaintiff-appellant's complaint 'upon the grounds that the complaint does not state facts sufficient to constitute a cause of action for a declaratory judgment.'

The complaint, as paraphrased in the plaintiff-appellant's brief, is as follows:

'It is alleged in the Complaint that the Appellant is a physician actively practicing his profession in the City of Philadelphia, Pennsylvania; that the Appellant is presently married and resides with his wife and three children in the City of Philadelphia; that the Appellant is the father of the Infant Respondent, Crysta Stroh, who was born out of wedlock at Camden, New Jersey, on or about December 29, 1971; that the mother of the Infant Respondent is the Adult Respondent, Crysta Stroh; that they reside together in the City of Medford, Taylor County, Wisconsin; that the Appellant and the Adult Respondent, Crysta Stroh, are not now and never have been married to each other; that no judicial determination of the paternity of the Infant Respondent Crysta Stroh has ever been made; that Appellant requested that the District Attorney of Taylor County, Wisconsin, commence paternity proceedings pursuant to Sec. 52.24, Wisconsin Statutes, but that said District Attorney specifically declined to initiate such proceedings; that the Adult Respondent Crysta Stroh refuses to permit the Appellant to have any contact or visitation with the Infant Respondent; that, on information and belief, the Adult Respondent Crysta Stroh is not able to support the Infant Respondent without assistance; that the Appellant is financially responsible and capable of providing for the care, custody, support, and maintenance of the Infant Respondent and is a fit and proper person to have the care, custody, and control of the Infant Respondent; that it is in the best interests of the Infant Respondent to have a determination of paternity and a determination of the rights and duties of Appellant and of the Adult Respondent Crysta Stroh with respect to the child; that a declaratory judgment action is proper under the circumstances; and that the Respondent Robert L. Brandner is made a party defendant pursuant to Sec. 269.56(11), Wisconsin Statutes, because of his official interest, as the District Attorney of Taylor County, Wisconsin, in all paternity actions in Taylor County under Chapter 52, Wisconsin Statutes.'

Two recent cases, among others, Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, and State ex rel. Lewis v. Lutheran Social Services (1973), 59 Wis.2d 1, 207 N.W.2d 826, ² in effect, recognized that fathers, including putative fathers, do have the right to establish they are a natural parent and, as such, have some parental rights and duties.

Admittedly, both Stanley and Lewis can be distinguished from this case upon their facts. In Stanley, the mother of three illegitimate children died and the state took custody of the children who were living with the father. An Illinois statute, which prohibited him from asserting parental rights and a right to custody, was held unconstitutional. Lewis was an adoption proceeding where the putative father was not given notice nor hearing prior to adoption.

In the second Lewis case, in interpreting Stanley, we stated at pages 4 and 5, 207 N.W.2d at page 828:

'. . . In Stanley, the supreme court decided two things: (1) That the denial of a natural father's parental rights to a child born out of wedlock based on mere illegitimacy violated his constitutional right to equal protection of the laws, and (2) that the termination of a natural father's parental rights to a child born out of wedlock without actual notice to him, if he was known, or constructive notice, if unknown, and without giving him the right to be heard on the termination of his rights denied him due process of law.'

In this case, therefore, we conclude that the plaintiff-appellant, as a putative father of an illegitimate child, does have the constitutional right to establish, if he can, his natural parentage, to assert parental rights, and a legal forum with due process procedures to establish these rights.

In Wisconsin, the only specific statutory procedure for establishing the parentage of illegitimate children and making provision for their care, custody and maintenance appears in ch. 52. The chapter deals with the broad problem of the support of dependents and is so titled. Sec. 52.21, and those sections immediately following, provide for the procedures in paternity proceedings. These sections do not contemplate nor provide for procedures for the commencement of a paternity action by the putative father. The action is to be commenced by the complaint of the mother ³ or by the district attorney if he believes the child is or is likely to become a public charge and believes it is in the best interests of the child to do so.

In this case the mother has not and probably will not make a complaint under the paternity statutory provisions. The complaint here alleges that the district attorney has been requested to commence a paternity action under the statute but that he declines to do so. The plaintiff-appellant commenced this action for declaratory relief under sec. 269.56, Stats., and prays for a judgment which declares he is the father of the minor child in question and for a determination of his rights and duties as to the care, custody, maintenance and visitation of the minor child.

The guardian ad litem of the minor child, by demurrer, asserts that the facts alleged in the complaint do not entitle the plaintiff-appellant to declaratory relief primarily because the judgment if rendered, it is argued, will not terminate the controversy.

It has been suggested that a proper procedure is by way of a writ of mandamus to require the district attorney to commence a paternity action. Mandamus does not lie to compel a discretionary act. Cartwright v. Sharpe (1968), 40 Wis.2d 494, 162 N.W.2d 5. It is apparent from a consideration of all the issues raised in this case that it is primarily a dispute and conflict between the putative father and the mother as to questions of custody and visitation of the minor child. The duty of the district attorney is to prevent the minor child from being or becoming dependent upon the public for its care, support and maintenance. The pleadings here do not compel a belief that there has been a violation or refusal to perform a clear duty on the part of the district attorney so as to warrant a writ of mandamus.

At oral argument, a remedy by way of a writ of habeas corpus was also discussed. Habeas corpus can be utilized to determine questions of right to custody of a minor child, ⁴ but habeas corpus proceedings, too, are not well designed for continued jurisdiction to meet the changing circumstances in questions of custody, visitation and care of a minor child.

Because the rights asserted by the plaintiff-appellant are of the kind that are constitutionally recognized, some procedures and some forum must be provided for him to assert and litigate these rights.

The Declaratory Judgments Act, sec. 269.56(1), Stats., provides that courts of record have this '. . . power to declare rights, status and other legal relations whether or not further relief is or could be claimed. . . .' Under this broad language certainly the question of whether the plaintiff-appellant is the natural father of the minor child could be determined. ⁵

This court has on many occasions stated requisites for a declaratory judgment. They are: (1) A justiciable controversy must exist, (2) it must be ripe for determination, (3) it must be between persons whose interests are adverse, and (4) it must involve a legally protectible interest in the plaintiff. ⁶ From our examination of the facts as set forth in the complaint we believe all four of these conditions exist.

A common ground for refusing to hear a declaratory judgment action is that the judgment will not terminate the controversy. American Medical Services, Inc. v. Mut. Federal Savings & Loan Asso., supra. A declaratory judgment here will terminate the controversy as to whether the plaintiff-appellant is the natural father of the minor. It can also declare the rights as to custody, visitation, care and maintenance as the facts appear at the time of the hearing. It will terminate the controversy as the facts exist at that time and this determination will be final unless there is a subsequent change of the facts and circumstances.

Obviously, we are well aware that the facts and circumstances frequently do change in custody cases and that questions of care, custody and visitation are subject to continuing jurisdiction. In this aspect the controversy is not necessarily terminated. However, the Declaratory Judgments Act provides in sec. 269.56(8), Stats., ⁷ that: 'Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. . . .'

While declaratory relief in custody matters may be somewhat cumbersome insofar as continuing jurisdiction is concerned, the statutory authority given to the court is adequate and we believe is probably the best remedy available under existing statutory procedures.

Sec. 269.56(6), Stats., provides that the court in the exercise of its discretion can refuse to grant a declaratory judgment where the judgment will not terminate the uncertainty or the controversy. We have discussed above the question of termination of the controversy. In any event, ...