*1 Schipper, Appellant. Schipper, Respondent, February Argued 1970. 1970. Decided March 62. No. 474.) (Also reported N. W. *3 Rupp Weg- appellant a & were briefs For the there argument Ruppa. by Nathan Milwaukee, ner and oral respondent by Kenney, a brief there was For the Korf argument by Francis J. Troy, oral of East and & Pfeil Korf. ap- presented are on this
Hanley, J. Three issues peal: support trial
(1) the evidence sufficient Was treatment; finding of and inhuman cruel court’s an of the trial court’s discretion (2) it abuse Was children; minor and plaintiff award of the trial discretion to an abuse court’s (3) itWas attorney’s $7,400 for plaintiff a total of services allow in the action? rendered
Cruel <mdinhuman treatment. finding It was the of the trial court: past years “That for the six defendant showed little, any, plaintiff children, if attention to the to the job that he was obsessed with his at and talked Sta-Rite constantly constantly subject table, on this at the dinner that he belittled and ridiculed front family mentally of her and in friends told her she psychiatric unsound showed her no treatment, need of that he past love or affection for at least two years, spending money he her of too much accused and on one occasion knocked her off her in the feet base- home, ment of their that as result of conduct part atmosphere of the defendant the within the home explosive arguments and tense and were numerous and that reason thereof health suffered impaired physical the plain- mental health of the marriage tiff to an extent state became intolerable and that such conduct constituted cruel inhuman treatment to- plaintiff.” ward the position It findings defendant’s that each of these contrary great weight preponder- and clear attacking ance of many the evidence. In find- these ings specifically the defendant indicates he denied plaintiff’s underlying allegations. denials, Such how- ever, findings are insufficient to establish that the were against great weight preponderance and clear evidence. The trial decision stated: *4 testimony by “. . . parties The offered each of the support respective standing sep- their cause of action considering arately, oppos- and without the denials the ing party, legally opinion would be in sufficient the of the sustain a decree of absolute divorce to party. point then at primarily The issue this one credibility. principal parties of both contentions opposite party conduct of the as to the either stand as truth, the in which event the doctrine of recrimination considered, being' or one must fall as not must credible granted opposite party. and a decree to the testimony thoroughly reviewing of- of the “After all presented, each and fered of the on the issue having the of each observed and considered demeanor while on the stand and the the courtroom while witness witnesses during trial, the the the court finds testimony plaintiff suffered of the as treatment by totality is and that her at the of the defendant is true hands type impairs or of such conduct is of the impair physical health the mental and calculated plaintiff destroy of the the foundation would marriage marriage make intolerable. state record on the court finds established grounds divorce from defendant absolute and inhuman. conduct was cruel the defendant’s further finds the defendant has failed to “The court grounds sufficient him to a decree of to entitle establish absolute therefore divorce and his counterclaim dis- be awarded and a decree of absolute divorce will missed complaint.” plaintiff on her Quite plaintiff’s obviously, the trial court believed testimony not that defendant. As stated (1969), 171 N. W. v. Mason Wis. Mason 2d 364: “ credibility weight there- ‘The evidence province entirely of the court within were matters Gordon Gordon 386.” the trier of the facts.’ 332, 340, Wis. 71 W. having opportunity court, had to observe
This plaintiff, of either the demeanor plaintiff. give credence to the must finding Thus, the court’s that he obsessed “was constantly job on at Sta-Rite and talked with his accept subject,” court need not the defendant’s verity. Likewise, admission denial as inquired as to the defendant’s had occasion she testimony, cor- render which was work does not untrustworthy, Schipper, or render Janet roborated finding against great weight the trial preponderance of evidence. clear *5 finding As past that the defendant “for the six years any showed little if plaintiff] attention to her [the children,” citation of defendant’s various family activities, such as swimming, skating, picnics ice trips, partially were by testimony refuted Sehipper, Janet require ruling does that it was against great weight preponderance and clear any” evidence. The six-year term “little if over a term relevant; assuming arguendo' veracity of testi- mony favorable to the defendant, the trial court was justified finding. in its finding reference to the constantly “he court’s that
belittled and ridiculed plaintiff],” her the defend- [the quotes ant plaintiff’s from testimony: follows finger put your “You can’t people’s way belittling you,” apparently argues plaintiff that un- was give specific examples able to of such conduct on his part. plaintiff However, the also testified: instance, “. my mother, . . For in front of he would spends say, money. ‘she too much money I save the I goes spends have but she out and He it.’ has said with driving permitted car —I wasn’t to drive his big. bump bought car. It I was too would it. He me a just everything capable little car. It I did. I wasn’t doing anything.” say plaintiff’s it inability
Suffice to be more specific testimony does render untrustworthy. her Although argues the defendant also finding any- was uncorroborated one “mentally daugh- other than Janet —her disturbed” credibility. court need not delve into ter —this Janet’s The trial court no doubt considered Janet’s mental condi- “mentally tion and either determined she was not any disturbed” or that did not such disturbance affect credibility. finding attacking the that the told mentally that “she unsound and in need of treatment,” argues psychiatric the defendant that his were fact true. While truth is a statements defense *6 defamation, upon one actions it does bestow spread thereby preclude to license such accusations finding in- that conduct constituted cruel such human treatment. finding love that her no the defendant “showed supported years” past
or for affection at least the two is by plaintiff’s testimony they had sexual that had not occupied period years for a and had not relations two during addition, there was bed that time. same indicating testimony they went for that weeks sometimes talking the fact that another. Neither without one during trips nor Laszlo they took time this Dr. several Varga’s testimony indicating for his concern defendant’s upset finding. marriage require this findings her defendant had “accused that the As money” “on plaintiff] spending too much and had [the feet,” directs knocked her off her one occasion testimony denying these inci- attention the court’s previously noted, denial testi- However, such dents. showing the court’s mony that constitute does great weight against finding evidence. was (1955), 270 Wis. in Gordon Gordon stated As 386: 71 N. W. in- yardstick for cruel and definition “There no depends construction case for treatment. Each human .” peculiar . . circumstances. own its totality of the case the de- in the instant We think that justified that determination conduct the court’s fendant’s treatment. cruel and inhuman conduct constituted relying contends, However, on sec. defendant also failed cor- Stats., 247.18 constituting grounds conduct roborate both (1) required; defaults. . . . “247.18 Corroboration legal separation judgment annulment, “(2) divorce No grounds testimony party, granted on the unless shall required are corroborated other residence evidence therefor ground parties, except the cruel than corroborating no evidence available. inhuman treatment when 2 upon
the divorce and effect regard its her health. plaintiff’s alleged ground of cruel and inhuman treat- ment, only it need be noted where corroboration by testimony available it was furnished of Janet Schipper. allega- to corroboration of the As tion had a defendant’s conduct detrimental effect health, transcript following reveals testimony of Dr. Calvin 0. Chicks:
“Q. you problems present Do think it of her situation since tributed to her emotional divorce was commenced con- instability? leading “A. up I think the situation the break relationship probably their quent did. situations subse- *7 action, break, commencement of the divorce while, I also for but feel that did I she has mastered that. being currently upsetting don’t see this as to her at present the time. “'Q. your your And between first with her visit her, you any change did visit with in emo- last notice the you instability ? tional observed Yes, “A. I did. “Q. change And ? what was Well, “A. there was some be- turn-down this. She say relaxed, I more more came would confident.” supplied.) (Emphasis plaintiff’s testimony think sufficiently was cor- We roborated. satisfy stipulation requirements shall
No of subsection.” 2 (1969), 507, 512, 511, Jacobs v. Jacobs Wis. 2d 42 167 238, 2dW. this court stated: proof necessary . . When there is no corroboration of which’ is divorce, showing for there should be such corroboration appear Stats., not It (2), available. would that sec. 247.18 re- quires only conduct, corroboration of the cruel and inhuman grave also of the fact has a but conduct detrimental upon physical health effect mental of the offended spouse.”
311 Custody the minor ehildren. of Koslowsky Koslowsky 41 (1969), Wis. 2d often 280, 163 reiterated N. W. this court its repeated pronouncement that: “ determining in ‘The trial wide discretion court has custody there is upset matters, not be unless and its decision will evidence a clear of Wendland discretion. abuse (1965), (2d) 145, (2d) v. Wendland 138 N. Wis. W. 185; (1965), (2d) 317, Belisle v. Belisle 27 Wis. (2d) Farwell v.
N. W. 491.' Farwell Wis. 324, 327, 147 2d 289. N. W. “ strongly find- trial court defers ‘This ings custody is, course, in matters. reason custody uniqueness involved each of the situation understanding particular award and the broad course problem which trial court achieve can hearing, duplicated by quite an can never ” . appellate court a review record. .’ . judge ample oppor- had
In the the trial instant case custody underlying tunity to consider both wel- question children. of the minor fare only subsequent trial at two considered at the but also hearings. review, motion to
At conclusion defendant’s initial decision and court reaffirmed stated: its psychiatric ‘The has had . benefit “. . *8 together findings opinions custody, on the of and issue report home-study the a Walworth submitted with testimony Department Services, and the County of Social neighbors parties.’ of addi- the close of friends report written of Dr. tion, I the benefit of the also had plaintiff’s part of this record exhibit record, Bacon which is report, of five; which also the written is Chicks, is defendant’s exhibit also which of Dr. two.; Chicks, testimony testimony the Dr. oral of oral neighbors Varga; the five close of Dr. opinions gave respective or not as to whether their who custody person Schipper to have of the a fit is Mrs. County home-study report children; of the Walworth Department Services, of Social and other that witnesses trial, plus talking testified at the benefit younger girls, Nancy Debra, two a week or so after the close of this trial.” appointing guardian again
After ad litem the court custody question guard- examined the and considered the report ian’s which recommended be allowed custody to retain of the minor children.
Counsel an im- that there contends proper report guardian use of the ad litem. We agree stipu- do not with this contention since report lated to the admission of the into evidence. accept As to the trial court’s refusal into evidence report Varga, possibly of Dr. such have could prejudicial Varga been the defendant. Dr. allowed testify hypothetical question on the of a basis embraced all factors relevant concern- conclusion ing plaintiff’s judge addition, mental health. bearing Varga, previous hypo- allowed Dr. mind his testimony, testify “My opinion thetical as follows: is person Schipper that Mrs. unfit is most and harmful Varga’s testimony to raise children.” Dr. was considered rejected. Apparently placed the court more credence Bacon, reports Dr. which stated: those [my] interview, . I “. . On the basis would competent capable say, forced to woman care and of her children.” Chicks, and of Dr. which stated: Schipper problems . . “. Mrs. some neurotic certainly not perfect problems mother are but degree nature would render her unfit custody of her . to have children. . .” may casting the defendant have While succeeded in state, doubt mental such doubt was trial court. No resolved abuse discretion has in the trial been shown court’s resolution of this matter.
313 Attorney’s fees. attorney’s
The allowance of in fees divorce actions is Spheeris Spheeris discretionary with the trial court. v. 130; (1967), 497, 155 37 Wis. 2d Wahl v. Wahl W. (1968), 510, 39 159 However Wis. 2d N. W. 2d 651. compelled pay “the entire husband cannot be attorney’s of amount either fees or disbursements.” 244, 237, Johnson Johnson 2dWis. N. W. 230. pay,
In ordered case the defendant was instant attorney’s $5,000 plaintiff, for on behalf of the fees as trial of action and for related disburse- this $230 later, addition, In he order dated June ments. was anticipated required pay $1,760 of cost as representation appeal matter. on this July 29, Finally, in the defendant an order dated pay the motion ordered connection with was $410 modify judgment. initially set, trial $5,000 amount When judge stated: “Attorney requests a contribution for attorney’s thousand the sum of Five fees
toward dollars, plus Con- sum disbursements $230. many pre-trial sidering proceedings case, record entire conferences, itself, trial and the being requested fair and the sum court considers . . .” reasonable. requiring affirming pay- addition, order its before judge amount, trial noted: ment attorney’s regard fees, I am well the issue “With acquainted file and with the amount acquainted with this it, only of Mr. into that went of work attorneys Ruppa, Korf, part Mr. on the but setting Schipper prior represented to that. Mr. who the fees did, attorney’s fees that I aas contribution performed Korf. Mr. the work I considered *10 my only I experience, judge, drew on a as as trial but attorney, an I considered the that have been cases regard setting supreme handed down contribution for our court with to attorney’s attorney. fees for the wife’s read, Mr. Korf has filed an affidavit that I have will of Korf this case. a I become of this record. that the amount feel attorney’s I Mr. contribution that for the fees for set fair and under circumstances of is reasonable them, I I I feel felt that at time set at this time.” same Thus, apparent judge erroneously it is did pay order the defendant to the “entire amount” of the plaintiff’s attorney’s disburse- fees. As to $230 however, Attorney ments, Korf’s “Statement Services Rendered” indicates that amount constituted the Likewise, petition, Attorney total amount thereof. Korf’s 27, affidavit, dated June dated June $1,760 indicate on their face allowed for appeal to this court and the allowed in connection $410 modify judgment represent with the motion to charge concerning “entire” these for matters. orders attorney’s specifically fees refer to fees and neglect specify payment a contribution. only required conclude the defendant should be
We pay as a contribution toward reasonable sum appeal expended disbursements, fees and amounts expenses. motion judgment is
Therefore, the disbursements ordered as to provide payment of as a contribution modified to $100 disbursements; appeal fees modi- the order toward payment $900; provide fied contribution judgment provide a modified to the order on review of payment of contribution $200. Judgment and,
By modified and orders are Court. — modified, are to taxed in this affirmed. No costs court. con- J. writer W. Hansen, (concurring). Robert reasoning and result reached the court’s in the
curs opinion puzzling However, this case. one there is during taking incident toas placement of the three minor children that warrants special requires special attention and comment. family judge always right,
In this state a court has steps duty, often take affirmative determine protect rights of minor are con- children who separation cerned and affected in divorce or involving parents.1 their actions steps right family Such affirmative include the judge appoint family agency service or social *11 investigator investigate, to service evaluate alternatives placement and recommend to the court the most likely to of minor children best interests serve involved.2 steps right appoint affirmative
Such also include the to guardian attorney an litem children ad for the minor as legal representative advocate for the to as the or serve hearing rights the time of children’s and at interests or trial.3 prudently appointed properly the trial court and
Here rights guardian protect represent litem and ad such divorcing three minor children of the the interest of the guardian appointing parties. for the ad litem such purpose children, forth be the trial court set responsibility attorney appointed and the served represent guardian act . . to and words: “. in these as protect of the three minor children the interests for and appear represent said and hereto and of (Emphasis hearing herein.” scheduled at the children supplied.) 1 442, 581; (1963), v. Kritzik W. 2d Kritzik 21 2d 124 N. Wis. 185; (1965), 2d v. 29 2d 138 N. Wis. W. Wendland Wendland (1969), 2d 164 W. 2d 282. v. Dees 41 Wis. N. Dees 2 supra. Dees, Kritzik, supra; v. Dees Kritzik v. 3 Koslowsky 275, 283, (1969), Koslowsky 2d v. 41 163 Wis. supra; Dees, Johnson v. Johnson (1969), 632; Dees v. 2d N. W. Lacey Lacey 230; 237, 245, 2d N. W. 166 Wis. 142. W. 2d 45 Wis. puzzling in appears
What is this record is that it attorney appointed guardian litem ad submitted findings report a written or memorandum of and his stipulated conclusions. Counsel for the and wife husband agreed accepted that such written statement be the trial and made in this court record case. If, here, “report” by is the case written guardian litem in of his ad would be lieu actual presence participation hearing, it at full falls adequate providing legal representation short rights attorney ap- the children. An interests delinquency proceedings pointed represent a minor in discharged juvenile accepts responsibility not in a court filing report to the court. a written statement juvenile given A offender more than would not no competent accorded effective assistance counsel. guardian appoint litem ad there reason Where family case, in a there reason to for the children appointed presence participation of both insist affecting hearing present directly in the counsel well-being children. future of such “report” here, If, case the written as was the guardian for the submitted ad litem children was participation of presence full addition actual *12 custody hearing, there reason guardian in remains signal. sign, The role Stop flash, a but a Caution guardian attorney litem is court-appointed ad of a right produce witnesses, He has the that of advocate. argue The witnesses, to the role court. cross-examine investigator agency or court-appointed social custody expert child qualified in the field of aof evaluate, expected investigate, rec- He is placements. report. report or recommendations must His ommend litigants or their counsel but to the made available be exception hearsay expert witness comes within 2d 140 W. 230. Larson v. Larson 30 Wis. analogous sanity testimony by psychiatrist rule, a toas appraiser appointment or an as to real estate values. guardian attorney of an a ad litem for children in qualify ipso expert divorce case him does facto anas hearsay field, in the child exclusion rule so report including apply does to a or based statements made to him others. holding where, writer with concurs attorneys stipulated here, for the wife and husband agreed report by guardian that written ad litem accepted report,
for the children made be standing challenge appeal neither on the court’s doing what asked it is both the court do. Nonetheless important report that the distinction between the investigator guardian participation of and the social ignored. litem ad in a trial neither blurred nor Huset, Plaintiff, v. Milwaukee Company Beef Dressed Appellants: another, Defendants and Ruby another, Res Inc., Defendants and
Chevrolet, pondents.* Argued February No. 77. 1970. Decided March 1970. (Also reported 740.) in 174 N. W. * rehearing denied, costs, April 28, with Motion for 1970.