157 Wis. 219 | Wis. | 1914
Sec. 2364, Stats., provides for making sucb allowances as that in question. Secs. 2367 and 2368 provide for requiring security for payment of such an allowance. The trust agreement was only what the court might have required under the plain words of the statutes. The fact that the matter was arranged by treaty and then approved by the court and made part of the decree of divorce did not change its character. It was subject to revision by the court at any time during the minority of the child as changed conditions might require, and independently of the year period within which the court possessed authority under sec. 2374 of the Statutes to-vacate or modify the decree. Such section does not contain any express provision that such a judgment during such year period shall be interlocutory in the sense taken by the trial court. As indicated in the statement, the decree of divorce-was, in form, a final closing of the litigation between Mr. and Mrs. Tates. The statute then, as now, contained these provisions :
“Such judgment, so far as it determines the status of the parties, shall not be effective, except for the purpose of an appeal to review the same, until the expiration of one year from the date of the entry of such judgment.” . . .
“So far as said judgment determines the status of the parties the court shall have power to vacate or modify the same, for sufficient cause shown, upon its own motion, or upon the application of either party to the action, at any time within one year from the entry of such judgment. But no such judgment shall be vacated or modified without the service of motion, or order to show cause on the divorce counsel, and on the' parties to the action, if they be found. If the judgment shall be vacated it shall restore the parties to the marital relation that existed before the entry of such judgment.”
“Such judgment, or any provision of the same, may be reviewed by an appeal taken within one year from the date when*223 such judgment was entered. At the expiration of such year, such judgment shall become final and conclusive without further proceedings, unless an appeal be pending, or the court, for sufficient cause shown, upon its own motion, or upon the application of a party to the action, shall otherwise order before the expiration of said period. If an appeal he pending at the expiration of said year, such judgment shall not become final and conclusive until said appeal shall have been finally •determined.” Sec. 2374.
The record shows that the independent action was not instituted or prosecuted for any other purpose than to avoid the provision in the divorce judgment for support of the minor «child. It proceeded from beginning to end, upon the theory •that such judgment as to dissolution of the marriage contract and division and award óf property to or for the benefit of Mrs. Yates, was not to be disturbed. The record also shows that there was no application in the divorce action to vacate the decree of divorce for cause or otherwise. The proceedings in such action, from the beginning to end, were for the sole purpose of annulling the provision of the decree for support of the minor child, and it was closed accordingly, leaving such •decree as to the divorce, entirely undisturbed.
Thus it will be seen that the situation to be dealt with when the two proceedings were commenced, was very simple and covered by the plain words of the written law. Sec. 2369 of the Statutes provides for revising a provision of such a decree relating to support of children in these words:
“After a judgment providing for alimony or other allowance for the wife and children, or either of them, or for the appointment of trustees as aforesaid the court may, from time to time, on the petition of either of the parties, revise and alter such judgment respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any judgment respecting any of the said matters which such court anight have made in the original action. But when a final*224 division of the property shall have been made under the provisions of section 2364 no other provisions shall he thereafter made for the wife.”
That the condition created by the death of Mrs. Tates warranted an application in the divorce case to discharge the trustee and the court in granting it, is clear. The plain simple way thereto indicated by the statute should have been followed. There was no occasion for an application to cancel the trust agreement because it was executed by Mr. Yates without apprehending that it did not contain a provision for its termination in case of the death of Mrs. Tates. The statute amply provided for that contingency in the way of an application to the court for a revision of the judgment. There is nothing in the evidence or findings to show any ground for annulling such agreement upon the ground of mutual mistake or fraud, — nothing whatever. There was no basis for annulling it upon the ground, that by the death of Mrs. Tates the divorce action abated. The findings, judgment, and order so far as based on the theory of abatement, are erroneous.
There was no more reason for holding that the judgment abated as to provision for support of the child than as to any other part of it including the division of property. If it abated, no proceeding therein was proper in advance of its being revived. To treat the action as abated and the decree as to support of the child superseded on that account, and treat it as not abated as to all other matters was inconsistent. Thus the order appealed from, regarded as merely revisory can stand, but not otherwise.
Why was the independent action instituted? The purpose of it, as has been seen, was to vacate a part of the decree in the divorce action because of .circumstances which had arisen subsequent to its entry. The sole way of dealing with such a matter is by petition in the action. It has been firmly settled that an independent action for such a purpose is so-
So the court should have dismissed the independent action for want of jurisdiction, whether the point was raised by counsel or not, and this court must correct the mistake in not doing so by reversing the judgment on both appeals and remanding the cause with directions to dismiss with costs.
The general result is that there were two proceedings, made quite complicated, to reach a simple matter, which the statute plainly contemplates shall be dealt with by a mere petition in the divorce action. A very simple, comparatively inexpensive proceeding by motion, on a petition setting forth the facts, for an order revising the divorce decree as to the particular matter and terminating the trust, was all that was necessary. It is unfortunate that instead thereof two proceedings were resorted to, resulting in two large records and four appeals to this court. When it came to the appeal no reason is perceived why the trustee and the beneficiary did not join. The interests were the same. Separate appeals did not afford any better opportunity for protecting the interests of the beneficiary and the trustee, than one. They were united in interest and constituted really but one party. Karrigan v. Gilchrist, 121 Wis. 127, 449, 99 N. W. 909. In all such cases, the study should be to save needless expense.
By the Court. — The order appealed from is so modified as to be revisory only of the divorce decree as to the provision for support of Georgia Marion Tates, terminating the trust, and requiring an accounting and restitution by the trustee as provided in such order, and as so modified, affirmed on both appeals. The judgment appealed from is reversed, and