Welch v. Welch

33 Wis. 534 | Wis. | 1873

DlKON, C. J.

Unlike the proceeding in In re Goodenough, 19 Wis., 274, this is a statutory one, arising under the divorce law, to determine whether the plaintiff or the defendant, formerly husband and wife, shall have the care and custody and be charged with, the maintenance of a child of theirs, a boy, who at this time has attained the age of about fourteen years. The parties were divorced in this action, which was commenced by the wife against the husband, charging willful desertion, and a judgment obtained on that ground in the year 1861. The parties have since married again, the plaintiff with another husband, and the defendant with another wife, with whom they are respectively still cohabiting. The judgment gave the care, custody and education of the child of her former marriage to the plaintiff, “until the further order of the court.” This is a proceeding instituted on the application of the defendant, and brought to a hearing in the circuit court in August, 1872, for a change of the judgment respecting the care and custody of the child, and to have the same awarded to him, the defendant. The court granted the application, by so far modifying the first judgment as to transfer the care and custody of the -child to, the defendant for the purpose of educating him, and so long as the defendant shall keep and maintain the child at school at Stevens Point during the school terms. Other directions were also specially given, which were intended for the consolation and relief of the plaintiff at being separated from her son, all of which, together with the proofs by affidavit and other facts on which the circuit court acted, appear from the statement of the case made by the reporter. This is an appeal by the plaintiff from the judgment so modifying the original one, and transferring the care and custody of the child for educational purposes to the defendant.

The statutes authorizing such proceeding, as well as the making of the first judgment, are sections 19 and 20 of ch. Ill, R. S.; 2 Taj. Stats., 1273, §§ 19, 20. The power thus given is in a large sense discretionary in the court which may be called upon to exercise it. Section 19 declares that upon pronouncing judgment of divorce, “ the court 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.” And by section 20 it is enacted, that “ the court may from time to time afterward, on the petition of either of the parties, revise and alter such judgment concerning the care, custody and maintenance of the children, or of 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.”

It is obvious from a reading of these provisions, that whatever may be regarded as the natural and legal right of the father to the care and custody of his children at the common law, or however much the powers of the court, either of law or equity, may be abridged, or its discretion in that respect controlled in other proceedings, in this especial proceeding in the action for divorce, all such restrictions have been entirely removed by the statute, and the authority of the court is unlimited. The court may, in its discretion, award the minor children to the care and custody of either party, and direct by whom and how they shall be maintained, no matter what the ground of divorce may have been; or it may, as was done by the judgment in question, divide the care and custody, declaring that the one parent shall be guardian for the nurture, and the other guardian for the mental education and discipline of their offspring. In general, all other circumstances being equal, the paramount common law right of the father to the children will be recognized. But if the divorce has been granted for the fault or misconduct of the husband, then such right, according to the nature and circumstances of the fault or misconduct shown against him, will not be recognized. The faults and misconduct of the father leading to the separation, are proper to be considered by the court in the exercise of its discretionary power as to the disposition it shall make of the children, though the court may, in any case, if the welfare of the children demand it, and it be deemed the wisest and best thing to be done, give the oustody and control of them, in whole or in part, to the father, notwithstanding he may have been the culpable party to the action. The welfare of the children, and how their interests will be best subserved, are the matters of primary consideration with the court; and whatever order is made respecting the care and custody of them, these should constitute the governing motives of judicial action.

Looking, therefore, to. these general principles, and considering the liberality and comprehensiveness of the power conferred by the legislature upon the court granting the judgment of divorce, we can not say that the circuit court abused the discretion vested in it in allowing the application, and in making and entering the modifying judgment appealed from by the plaintiff. On the facts appearing of record, and upon which it is reported that the court acted, it is impossible for us to say that the judgment was wrong, or was one which ought not under the circumstances to have been rendered. We can see some very good reasons for thinking that it may be greatly for the boy’s advantage to be placed under the partial and limited management and control of his father, for the purposes and subject to the regulations prescribed in the judgment. On the other hand we can see no very strong or sufficient reasons of an opposite character — none which may be-fairly and reasonably said to countervail or overcome the advantages to be expected from the judgment. So much we can safely affirm from the record, while of those facts and circu'mstances not appearing by the record, and which can not be brought before the court of review, namely, such, the knowledge of which is derived by the circuit judge from his own personal observation and acquaintance with the parties, we can of course know nothing. Of facts and circumstances of the latter description, often exercising, and properly so, too, in cases of this kind, a very considerable influence upon the mind and judgment of the coui’t, we can only indulge the presumption that they were such as to favor the conclusion arrived at by the court.

The case presents, therefore, no facts and circumstances impeaching the correctness of the judgment rendered or showing an abuse of the discretion vested by law in the circuit court; and we pan say of this, as of all other appeals where a review and reversal of discretionary orders and judgments are sought, that that course of decision by this court is safest and greatly to be preferred, which leavfes all such orders and judgments undisturbed, except in clear cases of abuse of the discretionary powers conferred upon the court or judge by whom they are made. If, in the present instance, the judgment entered shall be found to operate unfavorably, and not to be for the best interests of the child, upon presentation of the facts, the circuit court can vacate or modify it; and that is the course which should be pursued, instead of appealing to this court as under existing circumstances.

In actions for divorce and proceedings connected with them, as well as in some other cases, this court may give or withold costs in its discretion. Noonan v. Orton, 31 Wis., 282-3; Reed v. Jones, 15 id., 40 ; Green v. Wescott, 13 id., 606.

By the Court. — The judgment is affirmed, but without costs in this court against either party, save only the costs of the clerk, which will be taxed and allowed, and judgment entered therefor against the defendant.