Renner v. Renner

127 Wis. 371 | Wis. | 1906

Siebeceeb, J.

It is argued that the court had no power to modify the original judgment, which provided that the care, custody, and education of the minor children of the parties should be awarded to the plaintiff, and for a final division and distribution between the parties of their estate, “in,lieu of any alimony and other provision” for the wife. This claim is based on the provisions of the statute prescribing what judgments the court may make concerning the care, custody, maintenance, and education of the minor children of the parties; the payment of alimony to the wife, and for allowances for the support of minor children committed to her care; or for a final division and distribution of the estate of the parties. The court decreed a final division of the estate of the parties and awarded to plaintiff the care, custody, and education of the minor children, without requiring that defendant make any contribution or payment for their maintenance and support. The power of courts in actions for divorce is wholly derived from the statutes on the subject. Kempster v. Evans, 81 Wis. 247, 51 N. W. 327; Bassett v. Bassett, 99 Wis. 344, 74 N. W. 780. We must then look to the statutes to ascertain what powers to revise and alter judgments in such actions are conferred on the courts. Sec. 2362, Stats. 1898, confers authority on courts to make provision in divorce judgments for “the care, custody, maintenance, and education of the minor children of the parties,” and sec. 2363, Stats. 1898, authorizes revision and alteration of such judgments, and the making of new judgments concerning the minor children. The succeeding’ section provides in what cases the court may decree an allowance for the support and maintenance of the wife, and award an allowance to her for the support, maintenance, and education of the minor children committed to her care, and for making a final division and distribution between the parties of the estate involved, with a proviso that in case such final division and distribution of the estate be decreed between the husband and wife, it “shall [not] impair the power of the court in respect to revision of allowances for minor children under the next preceding section.” The authority to revise and alter a judgment, from time to time, respecting the care, custody, maintenance, and education of minor children is thus expressly conferred, regardless of whether or not the original judgment directed that such an allowance should be paid by either party for their support. It is claimed that the authority so granted to alter and revise judgments is limited by the provisions of sec. 2369, Stats. 1898, to cases wherein the original judgment provided for the payment of alimony or other allowance for the wife and children, or either of them, as held in the case of Bassett v. Bassett, supra, upon the principle that, where the statute expressly grants “the authority to revise or alter a particular judgment, it impliedly prohibits the exercise of that power as to any other judgment.” The judgment in the Bassett Oase made no allowance for the wife, though she had asked for such relief in her complaint. It therefore followed by implication that it had been denied to her, and that the court had adjudicated the question for all time. But, as shown above, there is no such want of authority as to judgments respecting minor children. The preceding section expressly authorizes their revision and alteration from time to time, and provides that a decree for final division and distribution of the property of the parties, as awarded in this case, shall not impair such power. The case of Bassett v. Bassett, supra, is to be read in view of the facts before the court, which presented an application for a modification of a judgment wherein no provision for alimony or an allowance was made for her, and it was therefore held that under see. 2369, Stats.. 1898, “the trial court has no power to alter or revise a judgment for divorce unless the judgment itself shows that some provision was made for alimony, or some allowance made to the wife.” We do not think the legislature by this section intended to restrict the power of courts to alter and revise divorce judgments, from time to time, concerning the care, custody, maintenance, and education of the minor children of tbe parties, and we must bold that the courts have authority over their judgments of this character, to “make a new judgment concerning the same as the circumstances of the parents and the benefit of the children shall require,” whether or not the original judgment contains any provision concerning them. The court properly modified the judgment by requiring défendant to pay the amount directed for the support of the minor children.

It is insisted that, in view of the provisions of the order modifying the judgment, the court erred in its adjudication that defendant was guilty of contempt in his omission to pay the sums directed, because the allowance so made for the support of the children is specifically declared to be a lien upon defendant’s real estate, and payment could therefore be enforced under an execution. It is also claimed that, whenever this remedy exists, contempt proceedings are 'not permissible to compel enforcement of the court’s orders.

We are of opinion that all the considerations submitted by the appellant against the validity of the order in the contempt proceedings are fully covered in the case of Staples v. Staples, 87 Wis. 592, 58 N. W. 1036, and that the order appealed from was properly made and is ruled by the decision in that case.

By the Court. — The order appealed from is affirmed.