McCabe v. McCabe

126 Wis. 154 | Wis. | 1905

Maeshall, J.

The appeal papers treat the action of the-circuit court complained of as an order. Whether it is that or a judgment is not free from all doubt. The return of the: clerk does not comply with sec. 3050, Stats. 1898, as regards: what it should contain in case of an appeal from an order. If it be such an appeal a dismissal thereof would be required in the absence of some fatal defect appearing* on the face of' the order or some recitals appearing therein identifying with reasonable certainty the papers upon which it was based. Glover v. Wells & M. G. Co. 93 Wis. 13, 66 N. W. 799; Tenney v. Madison, 99 Wis. 539, 75 N. W. 979; Ryan v. Philippi, 108 Wis. 254, 83 N. W. 1103; Milwaukee Trust Co. v. Sherwin, 121 Wis. 468, 98 N. W. 223, 99 N. W. 229.

The so-called order may reasonably be called one in fact and will be, since no point on behalf of respondent was raised' in respect to the matter. It would be well for counsel interested for an appellant to see that the clerk of the circuit court-makes his return strictly in accordance with sec. 3050, Stats. 1898, taking particular notice of the distinction between the return to be made in case of a judgment and that in case of' an order. The order here states that the hearing which resulted in its entry was on the “original records and all files in the case as well as on the petition of the defendant and her •affidavit.” A claim was made on tbe argument tbat several affidavits in tbe return were not rised upon tbe motion, and were improperly placed on file. They are not identified by tbe order as having been so used other than by a general reference to all tbe files in connection with tbe fact, shown by appropriate indorsements, tbat they were on file on tbe day tbe order was granted. Whether tbat sufficiently identifies them ■or not does not seem to be material since tbe order is fatally defective upon its face, as will be hereafter seen.

Tbe case is ruled in favor of tbe appellant by tbe general doctrine tbat where jurisdiction in divorce matters is statutory tbe court possessing tbe same has no power exercisable in a divorce action as regards tbe custody of minor children of tbe parties other than tbat found in tbe written 'law. Hopkins v. Hopkins, 39 Wis. 167. Such jurisdiction is lodged in ■our circuit courts by legislative grant. Boehler v. Boehler, 125 Wis. 627, 104 N. W. 840. Tbe authority as to minor •children is expressed in these words:

“The court may make such further provisions therein as it ■shall deem just and proper concerning tbe care, custody, maintenance and education of tbe minor children of tbe parties, and may determine with which of tbe parties tbe children, or any of them, shall remain.” Sec. 2362, Stats. 1898.'

It will be observed tbat while tbe court may make provision •concerning tbe “care, custody, maintenance and education of tbe children” tbe authority is to be exercised with reference to tbe limitation of power as to determining with whom tbe 'children shall remain. Tbat is confined to a choice between tbe parents. Tbe meaning of tbe words “with which of tbe parties tbe children, or any of them, shall remain” is unmistakable. To award legal care and custody of children to one parent coupled with a requirement tbat they shall remain with some person not standing in tbe parental relation to them, and with a provision limiting tbe conduct of tbat one in a manner entirely inconsistent witb tbe exercise of parental control, as was done in tbis case, .is a clear -usurpation.

Tbe learned trial court seems to bave supposed that tbe 'duty of care and custody might by mere words be given to one parent while actually given to one not standing in tbe relation. Such a disposition of tbe children is not a response to tbe statute even in form. It violates its letter and spirit. Tbe statute clearly contemplates that tbe children shall remain witb one of tbe parents. Welch v. Welch, 33 Wis. 534, must not be read as sanctioning removal by tbe divorce judgment of tbe children of tbe parties from parental control. Tbe order complained of here not only provides that tbe children shall not remain witb either of tbe parents, but it in effect removes them from every semblance of parental control. Appellant was in terms given tbe legal care and custody of them, but every element of authority consistent witb such care and custody was taken from him. They were not permitted to bave their home witb him, and even for him to visit them was made permissive and conditional.

Tbe learned court evidently thought tbe understanding existing between tbe parents at tbe time of tbe entry of tbe divorce judgment, that tbe children might remain witb their grandmother, warranted a modification of tbe judgment complained of notwithstanding appellant’s objection thereto. We think otherwise. If be consented at one time to surrender parental control of bis children, it did not confer jurisdiction on tbe court beyond that given by tbe statute, especially after such consent was withdrawn. Tbe trial court should, as tbe statute plainly contemplates in such cases, bave provided for tbe children’s remaining witb one or tbe other of tbe parents, or one of tbe children witb tbe father and tbe other witb tbe mother, and'abstained from fencing such provision about witb nullifying restrictions.

By the Court — The modification of tbe divorce judgment appealed from is reversed.