Hicks v. Hicks

79 Wis. 465 | Wis. | 1891

Lyon, J.

If the circuit court had jurisdiction, on the petition of the guardian ad Utem of Mrs. Hicks, to modify or alter the original judgment of divorce in respect to the custody of Mrs. Hicks, and her support and maintenance, the order or modified judgment appealed from is a most reasonable exercise of that jurisdiction. It is shown that the plaintiff is of ample pecuniary ability to support his former wife, and he ought to do so. The requirements of the modified judgments in that behalf are exceedingly moderate, only requiring the plaintiff to pay $78 per annum for her support, with a trifling additional expenditure for clothing. We cannot refrain from saying that he ought to be willing to pay this paltry sum for the support of the stricken, helpless wife of his youth, and mother of his children. Still it is competent for him to stand upon his legal rights, and contest his legal obligation to do so. The order modifying the judgment should not and will not be disturbed on the merits. The only question which demands attention is that of jurisdiction. Its determination renders necessary a consideration of ch. 297, Laws of 1881, and ch. 230, laws of 1882, repealing the same.

Sec. 3, ch. 297, Laws of 1881, provides as follows: “ In every action for divorce, in pursuance of the provisions of this act, the court may, at any time after rendering judgment therein, revise and alter such judgment, so far as the custody, support, and maintenance of said insane person is concerned, and may provide for such maintenance by said plaintiff out of any property or earnings acquired by said plaintiff subsequently as well as previously to sáid decree of divorce; and the court, making such order for maintenance, may, in its discretion, require the plaintiff to give security, to the satisfaction of the court, for the faithful execution of the same,” etc. Sec. 5 provides that, “ in every case under this act, the court shall appoint a guardian ad litem, who shall be a respectable and competent attorney of such court, not interested in the said cause on the part of the plaintiff, who shall appear for the said defendant, and diligently protect and care for the rights and interests of said defendant in such cause,” etc. The repealing act (ch. 230, Laws of 1882) reads thus: “ Oh. 297, Laws of 1881, is hereby repealed. This act shall not affect any actions pending March 25, 1882, under the provisions of the act hereby repealed, but said action shall be had and judgment rendered in the same manner as though this act had not been passed.”

It thus appears that by sec. 3 of the act of 1881 the court is vested with full power over the custody and support of the insane party, and to revise and alter the original judgment of divorce in those respects at any time after its rendition. Hence the original judgment, in so far as it affects such custody and support, is not final in any correct sense of that term. As to those matters, the divorce action is pending as long as both parties thereto survive. The repealing act of 1882 saves all actions brought under the repealed act which were pending March 25, 1882, which is the date of the approval of the act. This date was doubtless inserted for the purpose of excluding from the operation of the saving clause in the repealing act any actions which might be brought under ch. 297 after such date, and before publication of the law, which was made April 10, 1882. As we have seen, this action was pending on March 25, 1882, so far as the exercise of the authority of the court over the custody of Mrs. Hides, and to compel the plaintiff to support her, is concerned, and was therefore, as to those subjects, within the saving clause of the repealing act. Hence, to that extent the provisions of sec. 3 of the act of 1881 are still in force as to this action. It necessarily results from these views that the guardian ad litem appointed by the court at the commencement of the action continues to be such guardian until removed by the court which appointed him, and the appointment by the county court of a general guardian of Mrs. Hides cannot operate to suspend any function of such guai’dian ad litem. Mrs. Hieles is the ward of the circuit court, and no other court or tribunal has any authority to supersede the guardian appointed by it, or interfere with its orders and judgments affecting her custody and support.

Our conclusion is that the guardian ad litem was the proper person to present the petition in the present proceeding to the circuit court, and that such court had lawful authority to modify and alter the original judgment in respect to the custody and support of Mrs. Mieles. The portions of the order modifying the original judgment, from which the plaintiff appeals, must, on his appeal, be affirmed.

The portion thereof which refuses to require plaintiff to pay Walworth county for past expenditures for the support of Mrs. Mieles, from which her guardian ad litem appeals, must also be affirmed. Even though the court had power thus to modify the original judgment (which is doubtful), it was no abuse of discretion to refuse to do so.

By the Court.-The order of the circuit court modifying the original judgment is affirmed on both appeals.