171 Wis. 190 | Wis. | 1920
On January 18, 1918, plaintiff’s father and mother were divorced and the “care, custody, maintenance, and education” of the plaintiff, a boy about nine years old, were awarded to the mother, and the father was adjudged to pay her ten dollars per month “as and for the support, maintenance, and education” of the plaintiff. At the time of the divorce plaintiff’s parents were conducting a hotel at Rewey and the mother continued to conduct it thereafter.
Plaintiff’s dependence upon his father is claimed to be established by sub. 3 (c), sec. 2394 — 10, Stats., which provides that the following shall be conclusively presumed to be solely and wholly dependent for support upon a deceased employee:
“A child or children under the age of eighteen years (or over said age, but physically or mentally incapacitated from eárning), upon the parent with whom he or they are living at the time of the death of such parent, there being no sur*192 viving parent. In case of divorce the charging of the full support and maintenance of a child upon one of the divorced parents shall be held to constitute a living with the parent so charged. ...”
The circuit court’s opinion upon the issue is so concise and apt that we adopt it as our own. It says:
“The single question presented is whether a divorce decree which awards ‘the care, custody, maintenance, and education’ of the plaintiff to the plaintiff’s mother and directs that the plaintiff’s father, the deceased employee, pay $10 a month to the plaintiff’s mother ‘as and for the support, maintenance, and education’ of the plaintiff, is one, that charges ‘the full support and maintenance’ of the plaintiff upon his deceased father, within the meaning of sub. 3 (c), sec. 2394 — 10, of the Statutes.-”
The plaintiff’s mother testified that the sum of $10 paid by the plaintiff’s father monthly was not enough to pay for plaintiff’s board and room alone, to say nothing of other expenses incident to his support and maintenance. Under such a state of the record the Commission could not have found that the court granting the decree charged the deceased father with the “full support and maintenance” .of the plaintiff.
The court, by awarding “the care, custody, maintenance, and education” of the plaintiff to his mother, clearly imposed upon her the duty of supplying all support and main-, tenance in addition to that supplied by the contribution of $10 monthly by the father.
We need only add that in this age of high cost of living we can take judicial notice of the fact that $10 per month will not support and educate a nine-year-old normal boy. The Commission and the trial court correctly found the facts and applied the law.
Claim is made that the award is wrong upon the Commission’s theory of the law. This arises through an attack upon the findings of the Commission as to the amount contributed by the father to the son the year preceding his
There was no abuse of discretion on the part of the trial court in awarding costs against the plaintiff, and in the absence of an abuse of discretion this court cannot interfere. Sub. 1, sec. 2394 — 22.
By the Court. — Judgment affirmed, without costs to any of the parties, except that plaintiff will pay the clerk’s fees in this court.
