Wendland v. Wendland

• Decision Date: 30 November 1965
• Citation: 29 Wis.2d 145,138 N.W.2d 185
• Parties: Audrey K. WENDLAND, Respondent, v. Donald H. WENDLAND, Appellant.
• Court: Wisconsin Supreme Court

Page 185

138 N.W.2d 185

29 Wis.2d 145

Audrey K. WENDLAND, Respondent, v. Donald H. WENDLAND, Appellant.

Supreme Court of Wisconsin.

Nov. 30, 1965.

Respondent Audrey K. Wendland and appellant Donald H. Wendland were married June 29, 1951, and lived in Whitefish Bay. Children were both in 1952, 1953, 1955, and 1956. Both are college graduates and appellant is a pharmacist by profession. In the spring of 1963 respondent brought suit for divorce. In March, 1964, appellant served his answer and counterclaim, seeking a divorce on the ground of adultery. The respondent replied in July, 1964, admitting adultery but pleading condonation. On January 20, 1965, the trial court, following a two-day hearing, granted a divorce to appellant on the ground of adultery, but reserved its decision on the matter of permanent custody of the four children. On March 4, 1965, it rendered its decision on the custody question. Appellant appeals from that portion of the judgment awarding custody of the children to respondent.

The facts will be set forth in the opinion.

Ray T. McCann, Milwaukee, Leonard L. Loeb, Milwaukee, of counsel, for appellant.

Howard & Burns, Milwaukee, George A. Burns, Jr., Milwaukee, of counsel, for respondent.

WILKIE, Justice.

Two issues are presented on this appeal:

First, did the trial court err in awarding custody of the children to respondent?

Second, is respondent entitled to have appellant contribute toward her attorney's fees where he is granted an uncontested divorce on the ground of adultery?

Custody.

In its decision the trial court stated, as to custody:

'I now find that both the father, the defendant Donald H. Wendland and the mother, the plaintiff Audrey K. Wendland, are fit and proper parties to have the custody of the minor children of the parties. It is in the best interest of the children and for their welfare that the custody of said children is granted to the plaintiff wife, subject to the right to visitation on the part of the defendant husband at all reasonable times. Because of the animosity of the parties and because of the plaintiff's past actions, the Court will place this custody and visitation under the supervision of the Department of Domestic Conciliation for a period of one year and review this order on March 4th, 1966 at 2:00 P.M.'

Formal findings and a judgment containing provisions to the same effect were entered by the court.

On this appeal the appellant husband contends that the findings that the respondent 'is a fit and proper party to have the custody of the minor children' and that such custody 'is in the best interests of the children and for their welfare' are against the great weight and clear preponderance of the evidence and constitute an abuse of discretion by the trial court.

As to the scope of this court's review of the determinations by a trial court on matters of custody, in Belisle v. Belisle ¹ we said very recently:

'Custody matters are highly discretionary and the rule is well established that the trial court's determination will not be upset in the absence of a clear abuse of discretion.'

Or as stated in Bliffert v. Bliffert: ²

'The trial court's ruling as to custody will not be disturbed unless it is clearly against the weight of the evidence.'

The fundamental reason for giving such wide discretion to the trial court on custody questions has been most recently stated in Whitman v. Whitman ³:

Each custody case must turn on its own facts and circumstances. ⁴ Here, the record reveals the following: Respondent, who will be thirty-seven this December, testified that she was raped while vacationing in Cuba with her sister in 1956. In July of 1963, after the divorce proceedings were started, and while the parties were separated, respondent met a man at a Milwaukee cocktail lounge where she and a girl friend had gone when a concert they had planned to attend was rained out. She gave him her telephone number and they went out to dinner a week later. The man began making daily calls at her home and took respondent and the children boating or swimming on several occasions. Sometime after she began seeing this man, respondent was fitted for and purchased a diaphragm. In her testimony respondent explained that she had procured the diaphragm '[b]ecause I was attracted to this man, and I was afraid that, considering my terrible marriage for the last few years, that I might weaken and be indiscrete with him; and I didn't want to compound my problem by taking the chance of getting pregnant, and so I felt that I needed protection just in case.' Respondent refused to answer whether she ever had the opportunity to use the diaphragm. Respondent admits, in her brief, that she had intercourse with this man. A private detective, employed by appellant to keep respondent under surveillance, testified that he observed the respondent and this man having intercourse in the den of her home in September, 1963. At other times during the period of July through September of 1963 she spent weekends with the same man out of town. Respondent stopped seeing him later in September when she learned that he was an ex-convict. At one time in their marriage, respondent indicated to appellant that she doubted the paternity of one of their children.

Appellant also claims that respondent's lack of fitness was demonstrated by the fact that (1) in 1961 she stayed a week in a cabin with another man (although admittedly there were another married couple and ten children--from three families--sharing the cabin for the week); and (2) she met, by chance, with two men at a Milwaukee night club. The record does not support a finding of misconduct on her part in relation to either of these claimed indiscretions.

To complete the factual picture it should be emphasized that there was no evidence that any of the respondent's acts of misconduct had any open adverse effect on the children. Aside from appellant's claim that the children did not receive enough shampoos, no testimony was offered by the appellant or by anyone on his behalf showing that the children were anything but healthy, well groomed, mannerly, and well fed. There was no evidence that the respondent was neglecting or mistreating the children. The husband claimed that the boy had been having some difficulty with his studies at school, that the boy was not working to capacity, and that the boy's troubles in school were due to the fact that he was bothered by the family being broken up by the respondent. The children went to church in the same faith as before the divorce proceedings. After an investigation the department of domestic conciliation recommended that the children remain with the mother. The representative of that department adhered to his position that his recommendation would be the same even if the respondent were guilty of the acts of misconduct heretofore described as established by the evidence.

Thus the trial court was faced with the difficult task of determining whether or not the respondent was a fit person to have the custody of the four small children and whether or not granting her the custody was in the best interests of the children.

This court has said that in matters of custody 'the polestar remains the welfare of the child.' ⁵

The crucial question is whether in every case where a woman has been found guilty of immoral conduct, does this, without any evidence of demonstrable effect of such conduct on the children, mean that she is necessarily 'unfit' to have custody of the children and that an award of the custody to her cannot be 'in the best interests of the children.'

In Templeton v. Templeton, ⁶ the mother began living with her next husband before the requisite year had elapsed from the divorce date. ⁷ The court, while stating that '[n]othing can be said in defense of the conduct of the plaintiff [wife]' ⁸ refused to find her unfit in the absence of a showing that 'the mother has in any way neglected her child.' ⁹ In Bliffert v. Bliffert, ¹⁰ the fact that the father had remarried within the year (in violation of secs. 245.03(2) and 245.04(1), Stats.) and therefore was illegally cohabiting with his new wife did "not necessarily demonstrate depravity of heart or moral unfitness to bring up a child." ¹¹ In each of these cases this court upheld a finding by the trial court that the parent, who had committed the immoral act, was nevertheless 'fit' and a proper person to have custody of the children.

In Hamachek v. Hamachek ¹² the trial court originally granted custody of a son to the mother. Subsequently the trial court transferred custody to the father, where the evidence showed that the divorced wife, after the divorce, had an illicit relationship with a married man, giving birth to a child by him. The trial court found that she was 'not a fit mother' ¹³ and, in affirming, this court implicitly rejected the mother's specific contention that she could not be unfit where her 'transgression has not affected the welfare of the child.' ¹⁴

In Lewis v. Lewis ¹⁵ it was held, without a discussion of whether the children were in any way influenced, that the mother's infatuation with another man, both before and after divorce proceedings were instituted, was sufficient cause to support the trial court's finding that the mother was unfit and to place the children in the father's custody.

In each of these two cases, the trial court had entered a finding of unfitness on the part of the mother, notwithstanding that the record contained no evidence of demonstrable effect of the misconduct on the children. The crucial distinction from the case at bar is the fact that the trial court in each instance found the mother 'unfit' whereas here the trial court found the mother 'fit.'

In Vogel v. Vogel, ¹⁶ the wife admitted that she had sexual relations with a man harbored by her in her and her husband's and the children's home during a three-year period, which resulted in her becoming pregnant on two occasions....