39 Wis. 167 | Wis. | 1875
The moving papers used in support of the second rule to show cause why the judgment of divorce should not be vacated, or modified in certain particulars, present, as it seems to us, no case for setting aside the judgment. It is
The original judgment of divorce was, however, modified in some of its provisions. The court ordered that the custody of the boy, Emery E. Hopkins, which was awarded the plaintiff, should be given to the defendant. No complaint is made of this modification of the judgment. The court further ordered that the custody of the daughter, Nosa Ann Hopkins, which had been originally given to the plaintiff, should be taken from both parents and awarded to Andrew Willard, who was appointed her guardian for a year, and was entrusted with the care and control of her person, and with her education and support, under the direction of the court; and the defendant was ordered to pay the guardian $250 a year for the support and education of the daughter. It seems to us the court had no authority, in this action for a divorce, thus to take the custody and control of a child from both parents and give it to a stranger. The statute provides that the court, upon adjudging a divorce, may make such further judgment as it shall deem just and proper concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parties the children, or any of them, shall remain, having due regard to the age and sex of such children. Sec. 19, ch. 111, N. S. The court is authorized, on the petition of either of the parties, to revise and alter such judgment concerning the care, custody and maintenance of the children, or any of them, and make a new judgment concerning the same, as the circumstances of the parents and the benefit of the children shall require. Sec. 20. The statute evidently contemplates that the -ca're and custody of the
The court likewise modified the judgment in respect to the household furniture and other articles awarded the plaintiff. No serious complaint is made of the judgment as it now stands in that regard, and we are inclined to think it is right. The court awarded the plaintiff $3,000 alimony, which we consider an undue proportion of the husband’s estate. The defendant has made a statement of the property which he owned
Tbe counsel for tbe plaintiff lays stress upon tbe fact tbat tbe defendant bad offered to pay $3,000 as alimony, and insists tbat be should be held to bis offer. But under tbe circumstances we do not feel inclined to attach much importance to tbe proposition. Tbe evidence shows what tbe defendant is worth, and bis ability to earn money, and upon tbat evidence alimony is awarded.
It follows from these views tbat tbe order of April 23,1875, must be reversed, and tbe cause must be remanded to tbe circuit court, with directions to modify tbe original judgment of divorce so as to conform to tbis opinion.
By the Oowrt. — It is so ordered.