*1 to that used of the deed involved is similar language here, that some circum- it does not of the important appear stances here and to which we have called attention existing in that case. were Counsel for defendants cite several present “in cases to the the use of the term trust” is incon- point sistent with the idea that the absolute estate be was intended to true, Stated as that is granted. general proposition course, not in but we our search to ascertain the intent may limit our effort to a search for the effect to parties, but one contained in the given expression deed. As we out, have already contained in the pointed everything deed is to be taken into consideration. reversed,
By and cause Judgment remanded Court.— for further to law. proceedings according Respondent, Appellant.*
Edwards, vs.
April May 1955. 7— * denied, costs, rehearing Motion for without June *2 For the there was a brief by appellant Douglas, Omernik oral Bitney Spooner, & Edward argument by E. Omernik. Stone,
For the Veda and Eau Claire respondent, County Welfare, of Public the cause was Department submitted on Tronsdal, brief of O. V. district attorney Eau Claire Kaiser, John D. assistant district county, attorney and counsel. special The controversy here
Currie, involves presented J. son of eleven-year-old divorced parents. The issue whether only presented there was legal an abuse O Or
of discretion on learned trial court part denying the father’s trans- to have of the child application ferred to himself. This necessitates review of thorough the material evidence.
The Palma and the Frank- O. Edwards defendant plaintiff 15, 1942, and lin L. were November Edwards married on only marriage Edwards, Tr., child such in 1943. born divorce, an instituted action for Mrs. Edwards
In 1946 24, counterclaimed, and under date of August husband 1946, for divorce was entered husband’s a judgment On September judgment counterclaim. was set aside resumed parties living together. divorce between the two did not continue for relations Harmonious *3 17, 1947, Mrs. March com- because on Edwards again long for the court an action divorce. order of com- By menced missioner, action, Franklin, of was custody Jr., pending condition that she would to Mrs. Edwards on awarded keep Later that she took in Eau Claire summer county. the boy Edwards, Mr. who was with his to visit residing the boy near in Sawyer on a farm of Radisson village mother that Mrs. Mr. Edwards claimed Edwards was on county. man, in the another occasion intoxicated and of company this brother, the assistance of Mr. with and forcibly from from Mrs. Edwards removing boy prevented of latter’s visit farm at the conclusion there. action was this second divorce tried on its merits
When awarded the divorce his counter- the husband was again on the that Mrs. Edwards was of claim cruel guilty ground in with other men. consorting inhuman treatment Cus- and father, was to the he of awarded tody having had, retained such altercation which custody following this taken at the farm. The date of second divorce de- place 4, cree was December 1947. 1948,
In the Mrs. Edwards to the court summer of applied child, a of the was for change application 1948, 19, but this the court entered July denied order of by for- to Mrs. Edwards order did award temporary each six months. a two-week period 1948, Mrs. Edwards to illegally gain Later attempted at the farm near RadisSon and had possession to the extent of him into an automobile succeeded getting was act with the child when Mr. away driving car in an seized a rifle and fired at at- Edwards 30/30 to disable and it. A criminal stop charge brought tempt incident, Mr. because as Edwards against shooting which, 14, 1948, a result of under date of December he was sentenced to a term from one to three the Green years Bay reformatory.
After for the Mr. reformatory, Edwards’ mother leaving 1948, care of the and on December assumed turned him over to Palma Edwards for a two-week period, pursuant At July to the order the conclusion prior of such him, the child’s mother two-week failed return period Mr. counsel for Edwards instituted contempt proceed- Palma then her. Edwards filed against ings separate peti- in which she requested tion from changed herself. 17, 1949, Edwards On Mr. February Mrs. was married to one Arthur Carroll. Edwards Under date of 11, 1949, a was held court on such April last-mentioned application change custody, there- *4 an after the court entered order which he found that a fit neither was and to have parent proper person and awarded such Jr., custody to Mrs. Veda Claire of the Eau county public Stone welfare department the further of the court. until order 6, 1949, date of September Mrs.
Under Stone the placed Mr. in the home of and Leon Mrs. Fouser. Mr. Fouser is his a approximately and wife is forty-one years age few The Fousers on a farm about years younger. reside miles south of eight Eau Caire and have one child (a daugh- Fousers, of their own. Frank- ter) with the residing While lin, has has attended school at times led regularly and his class For two consecutive sum- scholastically. past Y. M. at he has attended the C. A. Manitou mers Camp each, for one week also to belongs Lower Lake and Long in which resides. is 4-H club he He township to he and would like be a teacher when inclined studiously up. grows father, released from the boy’s term after fourteen months of his and
reformatory serving on farm near Radisson. After his mother’s living resumed now he married and has two this daughters by a few months three and other two. Mr. Ed- one aged aged marriage, brother, farm to Franklin a mother deeded the and wards’ reside. Eau to The brother has agreed to Claire and went half in the farm Franklin interest to without deed acres, consists of 240 farm This ap- compensation. been 60 acres have cleared and are under culti- proximately vation, is brush and timberland. acreage remaining has a at erected five-room house which Mr. Edwards 2, 1954, last on had court not September time of the walls were insulated. is It although been completed, with water an outside tank with running septic equipped care of fixtures had been sewage, plumbing for taking but were not as in- and stored on premises yet bought time last farm at the of such The is free of hearing. stalled but the on the farm is in- property incumbrances personal $1,500 loan to a bank at mortgage Ladysmith. cumbered check each month’s milk half of being applied One The livestock consists at it. least loan head liquidate horses, milk two and the check is of cattle approximately month. the summer of Mr. Edwards During per $150 *5 i
Lr also was a at a Sawyer truck employed by county driving month, ex- compensation approximately per $300 In to be the winter pected employed during cutting posts. addition the from income the milk check the and from also the county, he was month receiving under per $125 federal veterans’ this he Under training program. program a course in taking agriculture necessitating attending month, classes on certain each but such evening evenings and the income therefrom end were to training program 16, December 1954.
The in state school Radisson is lo- graded village than one-half from cated less mile the farm. This is a good school 100 students attendance and having approximately Such school has a school-lunch teachers. un- four program der which hot lunches are to students at the supplied price ‡ meal. Students at per completing eighth grade have the school privilege attending school high Winter, Wisconsin, at are from Radisson transported school Winter bus. by
The evidence since the return of Frank- undisputed March, lin from the Edwards Green Bay reformatory in an he has conducted himself manner and exemplary has the in his a community being hard worker. reputation Franklin, the five years Jr., has
During resided home, foster his mother Fouser has no paid practically husband, attention to him and is now married to her third hand, man name of On other Sandberg. while Radisson, the Fousers’ home is 100 miles from approximately times, Mr. has visited the Edwards several has had letters to mother write boy, has occasionally bought him presents. 1954, Franklin
In Edwards court August, petitioned the an order from changing himself, Mrs. back to on for Stone came be- From fore the court September testimony *6 taken that had been at such it hearing appears his father for a of six visiting days immediately pre- period such Mrs. Stone such and was visit. hearing ceding enjoying at the witnesses who testified such and hearing was one of in it best that her would for the inter- she stated opinion ests of the if the were not but advanced custody changed, boy no reasons for'such There was testimony no opinion. father, in of the was any way derogatory related of to other than the incident his use already attempt the force to retain of custody boy. the trial
At the conclusion learned court from his decision the bench the father’s announced denying In such decision the trial court recounted the application. taken the which had between past struggles place boy’s father the in the boy’s custody, mother and over culminating in incident late such Following shooting summary events, the of court stated his conclusion as follows: prior “Now, and what has that to background happened upon he now the where has achieved of and boy place security visited and he to he’s here available to be visit by parents them, stand, that the former must it is conclusion my ruling is, what has what did to happened happen upon the while did have of alternately custody parents of law or the of their by the either force force own actions, neither should have the now have custody, the and that neither is fit to boy, have his custody of custody facts basis those and that the custody remain Mrs. until with Stone the further child will order of the court.” that the judgment
It is our considered learned trial judge father’s change custody application denied That erroneous father grounds: two such (1) following to have that the custody; not a fit (2) prior person taken between place which had the parents prior squabbles in the the child’s foster home placement September, n 1949,made it inadvisable now back change n ; to the father. . i In the recent casé of v. Dodge Dodge Wis. (1955), 441, 444, N. 67 W. we had (2d) before us an applica- tion for of a minor change child of custody, divorced par- ents and-therein stated :
“In cases it is' to fix impossible rules which are inflexible. Each case must be considered of all light facts and circumstances that in the record. appear One rule is that the welfare of the child is the paramount consideration in controlling determining question of a minor . . child. . The trial court these cases *7 inis a favorable to exercise position discretion and sound The trial court in judgment. this case at all of the presided between the proceedings the various parties divorce and involving
applications amendment thereof. He was with the and he acquainted parties saw and heard the wit- nesses who were at the last produced hearing.
“In cases this court relies reviewing heavily upon the determination the trial court. in by few Except very discretion, where there is a clear cases abuse of the court’s case, This is a order should close but prevail. we find no abuse of discretion and therefore adhere to the order made.” one,
We consider the instant case also to be a close but that in it is our conclusion contrast to the situation an Case there has been abuse of discretion here. Dodge that We cannot because the father agree, at forcibly to retain the child’s use aof back in tempted custody by gun 1948, for which act he has his debt to paid society by serving such, fourteen months in the forever after reformatory, act him as brands unfit to have of hjs. child. We re held In re Aronson cently 269 Wis. (1955), N. that acts W. of .committed seven (2d) adultery bq trial to were too remote to years prior on the .considered of whether a issue child the same home with residing such to be a child.” We deem person adjudged “neglected to this incident the same shooting principle applicable the father in the instant case. part with the court’s conclusion also cannot trial agree We his the effect on this eleven-year-old boy changing that his from the Fouser home to that of father that of him feel is to be detrimental on likely ground making insecure, because altercations of his over of the prior parents For the the mother has shown five custody. past years prac- interest in and it is that boy no highly unlikely tically to be on her effect any attempts there will further part of custody. change that is for the best interests of this
In considering a father’s affection and we deem boy guidance eleven-year-old desirable, be his teen-age years highly through far same tem- advantages outweigh any feeling in the a re- as insecurity might produced porary foster his from the home to that of his father. of moving sult is not a treatment full substitute for strangers Kind by par- Furthermore, and affection. the two little love daughters ental second Mr. Edwards are marriage Jr.’s, sisters, closer contacts to be half and the gained by residing home with them well ties may in the same that will develop to him his life. This be of enduring gratification throughout benefits entitled have the which accrue from the *8 members association with the of one’s own close family. us The conclusion reached herein should not be inter- rule, that, an inflexible as down case laying preted every of a child of divorced has been custody where trans- parents as the to a third result of a court’s ferred determina- person both were unfit to such that have parents tion custody, reformed, has one of the thereafter parents custody should to such then be transferred There well cases parent. be may it would be detrimental to the interests where best of the a transfer of custody to order to the reformed child parent, not consider this to be such we do a case. but
m cd vO been an abuse that there has of determination Because our bewill father’s it application, of denying discretion and the from be reversed that the order appealed necessary be entered awarding an order may remanded so that cause is school father. The present year to his that it be inadvisable to a close and would drawing home to that of Fouser foster removed from the be Jr., school year. conclusion of after the present father until to be entered Therefore, for of custody the order change for should make proper provision our mandate pursuant this. reversed, cause remanded with the Court.—Order
By of in con- an order for change directions enter with this formity opinion.
Broadfoot, J., dissents. : was filed The following opinion June The brief sub- motion rehearing). (on Per Curiam Stone, in Mrs. Veda support in behalf respondent, mitted out that the testimony for rehearing, points the motion Edwards, not taken at the held Jr., Franklin father in which the said of his the petition brief further states that the boy Such at issue. minor was this court made by directing the decision “sick at heart” over to the father. be awarded his custody is the welfare of paramount as the Inasmuch contest over his we any custody, be considered factor to ex- interest of we should justice in the concluded have 251.09, Stats., and under sec. discretionary power our ercise so that the testimony for further proceedings the case remand taken, a new determina- may such additional court after the taking trial made by tion testimony.
56b Edwards,
Franklin Jr., became twelve years age In the case of Jones v. State ex 1955... rel. Falligant June 9, 16, (1933), Wis. 247 N. W. this court based its as to who decision should have the of a custody fourteen-year- old girl largely' upon such child. In testimony the in- case, stant if Edwards, Franklin does Jr., that he testify to remain in prefers the foster home where he has resided for some rather than years father, return to the of his such fact should not be deemed to be on the controlling issue unless of the testimony boy goes beyond matter of personal and preference substantial gives reasons it would be why his best against interests to be compelled to reside with his father.
We recommend to the trial court that a competent disinterested attorney appointed ad guardian litem for Edwards, Franklin Jr., that such ad guardian litem be allowed adequate to confer opportunity with the well in advance of the at which is to be testimony taken, and so that such ad guardian litem may make such further as he deems investigation advisable after such con- ference. If the ad litem guardian should request taking other testimony witnesses than ad litem guardian should be granted such privilege additional witnesses. calling
The mandate of previous this court is vacated and the order from is reversed and appealed cause remanded for further in accordance with proceedings this opinion.
Gehl, I do not (dissenting). agree we should J. remand the cause solely that the ground whose n heart,” is involved is “sick at I do not certainly that it should be agree remanded for a reason which does not of record. The appear state majority very frankly *10 is brought conclusion their circumstance which prompts anything brief rather than attention by respondent’s their record. appearing concurs that Mr. to state
I am authorized Steinle Justice in this dissent. another, Respondents. vs. Williams Appellant,
Olson, 3,May April 7—