Sommers v. Sommers
| Decision Date | 29 November 1966 |
| Citation | 146 N.W.2d 428,33 Wis.2d 22 |
| Parties | Joan Louise SOMMERS, Respondent, v. Warren SOMMERS, Appellant. |
| Court | Wisconsin Supreme Court |
John T. Tryor, Milwaukee, for appellant.
Milton T. Murray, Milwaukee, for respondent.
There has been no appeal from the court's determination of the mother's unfitness to have custody of these children, and, therefore, no good purpose would be served in detailing her conduct which constituted the basis of the court's finding. Suffice it to say that, at the time of the divorce, she was denied alimony in view of her association with another man. She was given custody of the two children by the judgment that was entered on April 8, 1965. Although at the time of the hearing on divorce she stated that she was not pregnant, she has in the instant proceedings admitted that she gave birth to a child, not Warren's, on June 23, 1965, and abandoned the child on the steps of a church. It is as the result of this incident that Warren Sommers petitioned the court to transfer the custody of the children from Joan Sommers to himself.
The respondent, Joan Sommers, does not argue that the court erred in finding her unfit to have custody of these children. She does argue that the determination that the husband was unable to adequately care for the children and the subsequent finding of the court that custody should be vested in the Milwaukee county department of public welfare were proper and sustained by the evidence. We have recently said in Larson v. Larson (1966), 30 Wis.2d 291, 297, 140 N.W.2d 230, 234:
'A finding of unfitness on the part of one parent is tantamount to a determination that the best interest of the child requires that it custody be placed with the other parent' In view of the finding of unfitness of Joan Sommers, custody would, therefore, in the absence of other findings, be awarded to the father, Warren Sommers.
Sec. 247.24, Stats., gives the court power to give the care and custody of the children to one of the parties to the action. However,
'* * * if the court finds either that the parents are unable to adequately care for any such child or are not fit and proper persons to have the care and custody thereof, (it) may declare such child a dependent and give the care and custody of such child to a relative * * *, a county agency * * *, a licensed child welfare agency, or the state department of public welfare.'
As a consequence, before a trial court can deprive the natural parents of custody, there must be findings supported by the evidence sufficient to show that both natural parents are either unfit or unable to adequately care for the children.
The circuit court found 'that the defendant is unable to adequately care for these children, said finding being based on the record in this matter.'
This court strongly defers to the trial court's findings in custody matters. The reason for this is, of course, the uniqueness of the situation involved in each custody award and the broad understanding of the particular problem which the trial court can achieve in the course of the hearing, which can never quite be duplicated by an appellate court upon a review of the record. We have stated in Whitman v. Whitman (1965), 28 Wis.2d 50, 56, 135 N.W.2d 835, 838:
"This court relies heavily upon the determination by the trial court' * * *. Especially important is the fact that the trial court is in a better position than this court to determine the best interests of the children, * * * and to see and observe the parties and the way in which they conduct themselves.'
We pointed out in Wendland v. Wendland (1965), 29 Wis.2d 145, 138 N.W.2d 185, that custody matters are highly discretionary and will not be upset in the absence of a clear abuse of discretion. Therefore, the question presented on this appeal is whether the trial judge abused his discretion in finding the defendant, Warren Sommers, unable to adequately care for his children.
The provision authorizing a court to award custody to a relative or a welfare agency if a parent is unable to adequately care for such child was added to sec. 247.24, Stats., by the 1961 legislature. Although there is a dearth of legislative history to show the precise intent of this amendment, it is probable that the legislature added this proviso in view of the restricted meaning given by this court to the phrase, 'fit and proper.' We pointed out in Seelandt v. Seelandt (1964), 24 Wis.2d 73, 81, 128 N.W.2d 66, 70, 'The statutory words 'fit and proper' have usually been interpreted in the past decisions of this court as connoting moral fitness.' While this court did permit exceptions to that interpretation, it appears likely that the legislature recognized the need of denying a parent of custody under certain conditions even though that parent was not morally unfit. The appellant argues that the phrase, 'unable to adequately care for,' primarily refers to the father's financial ability to support the children. For this interpretation he relies on references in sec. 247.24, Stats., to ch. 48, which deald with financially disadvantaged children. However, if the legislature intended such a restrictive meaning, it would have been a simple matter to say so. Since it did not do so, we conclude that the term is broader and refers to circumstances other than those arising from moral unfitness and which could include the parent's physical, mental, or other conditions or circumstances which would make it difficult or impossible for a morally fit person to give proper care to a child. To limit the meaning of the phrase solely to a financial inability to support a child would give rise to serious doubts of the validity of the legislation, for to so hold would give a court the right to deprive an impoverished parent of the custody of his child. Such an interpretation is certainly not in accordance with an enlightened concept of the law. In any event, it appears that the father, Warren, is regularly employed and is financially able to care for the two children; and were that the criterion, the finding of being 'unable to adequately care for'...
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