*1 vs. Respondent.* Brown, Appellant, Braun, 8, 1957. September 9 October * costs, denied, with December rehearing Motion $25 *3 Charlton, there was a brief For the Yanisch appellant by Binsak, counsel, William A. Ritchay and of attorneys, & all Milwaukee, and oral Mr. Earl A. by Charlton argument Mr. Ritchay. and

For the there was a brief and oral respondent argument J. of Milwaukee. Stephen Hajduch have reached the conclusion plain- Wingert, J. tiff is entitled to recover the instalments divorce, ac- and that called money judgment re- action must be cordingly versed. 247.32, Stats., that after a Sec. provides and or other allowance for wife alimony

providing children,— time,

“. . . on the the court from time to may, petition either of the alter such revise and parties, judgment respect- the amount such . . . allowance ing and payment . . thereof. Brown,

Thus it was to defendant at time before any open died, to the court for relief from the boy apply support- no divorce He made money provisions judgment. effort to so. do Halmu, 124,

In Halmu v. 19 N. W. (2d) this in a court held that when carefully opinion children for whose benefit an allow- several youngest ance of has been made reaches money age twenty-one, of the divorce court to revise the power support-money terminates; the ex- divorce provisions action, then maintain an in the nature wife may independent *4 record, a of a common-law action of debt to recover upon instalments at the of Wis. support money. (247 unpaid 131, 132, 135.) pp. of the Halmu Case are

The rule and reasoning equally child, at an to the case bar. death of like only applicable his to terminate the majority, the attainment of operates the court to the of divorce modify judgment jurisdiction then in- and the ex-wife maintain an money, may the action to recover instalments. unpaid dependent

CO ^f“ T-O action observed, reference to the with it was In Halmu that— money, need circumstances, that consider these we “Under during the reason of judgment the amounts due by show only children, made payments of the subtract minority defendant, the amount owed balance be and the will defendant.”

it a matter of being merely mathematical (247 computation. atWis. a con- p. court nevertheless 136.) laches, tention that the but of ex-wife guilty not, held that she on her what effect without saying 136, laches if would have had Wis. at rights proven. (247 pp. 137.) whether,

In the case it is not to determine present necessary Halmu, in as intimated in an such action is always limited to a mathematical re- ascertainment amounts must enter therefor maining unpaid, regardless judgment considerations, whether, hand, of other or on the other familiar exercise the of a court to may power equity relieve a whose enforcement be in- would against existence, Even after the death of equitable. assuming child, to relieve from the defendant power support- divorce on money provisions equitable are we satisfied defendant was no position grounds, relief a from equity. money to invoke aid Equitable to is inexcus- will not be one who granted his such relief. v. Schulteis asserting right able neglect 164, 165, 419; 210 Press Co. 191 Wis. N. W. Trade Pub. 147, 152, 569; Kiel 236 N. v. W. Meyer, Grady 420, Williams, 186 Wis. N. W. 672. & v. Scott case, his knew for own story, In him advised of failing keep years eight him of thereby the child and depriving whereabouts he serious to find made no effort He admitted visitation. after the At no time entry judg- the first year. after them *5 ment of divorce does it that defendant made appear any effort to with the comply support-money provisions therefrom, or to the court for relief apply to or judgment, to enforce the visitation There is no that provisions. showing he unable a to after few months at pay the beginning he when suffered from an injury.

Defendant thus having slept his will not rights, equity now relieve him from the to which he accorded so little for so respect many years. of a court is not to be with. trifled cannot with the trial that agree

excused from compliance with divorce court’s judgment for the fact that support money by and Mr. Braun treated as if he were their boy That matter child. which been could have the divorce in a timely revise terms of the application but judgment, now, defendant is in no invoke it position to the reasons child, above stated. remained his boy and nat- legally do Neither we merit in the urally. find suggestion recovery in the action will result in her unjust enrichment. She Braun as supported boy unit, a of their and even if Braun part family was the bread- homemaker, winner and she suf- presumably commensurate fered pecuniary defendant’s failure injury by his do duty. 2. Plaintiff’s claim for the boy’s funeral expenses stands a different The divorce made no position. provi- sion such a The funeral contingency. were arrangements made without defendant. It not consulting does clearly ap- Braun, as pear plaintiff, distinguished from paid In funeral expenses. circumstances of this case peculiar we cannot the trial court was say wrong denying recovery item. of this

486a *6 reversed, be must will the be While appellant this to make denied costs in court because failure printing service her brief and timely appendix. reversed, to enter the with directions

By Judgment Court.— for all and amounts for the accrued be in this court. No costs to taxed money. printing for rehearing motion The on following dissenting opinion December 1957: was filed the ap- On rehearing). re motion (In

Steinle, J. for was deter- the nor laches not peal, argued parties, motion court. the mination relative made this On thereto the Brown specifically Gordon rehearing James answer, the in the and attention items the evidence directed which, justify in my statement of trial opinion, in interest of of a new trial justice. the granting conduct forth facts reflected inequitable answer set which Braun. Rose Ann on the and delay part plaintiff, thereunder, credible, to be would if found Evidence adduced been of laches. that the well have may guilty indicate second husband court determined the plaintiffs became role of loco and liable for parentis assumed the Nunc tunc of fact were pro minor. findings laches well have been submitted which may predicated. upon the course of the at which It that during hearing now appears considered, of fact were findings being such trial laches. However guilty indicated court, fact not were signed by findings proffered the facts based relating the decision was only the court made of fact findings issue. Had parentis loco laches, been no on the there would have liability establishing Halmu as found Halmu v. such of the defendant part 486b 124, 136,

(1945), 19 W. 317. In that N. (2d) case when that laches not determining did exist this court said: are, however,

“There two that need to be questions con sidered in connection with the amount due. The first is whether of her plaintiff, spite belligerency, laches because in the case of every order she ac contempt the determination of the cepted court as to the relief awarded her. think there is to this nothing proposition. Plaintiff tried as hard as she could and used all means available to her to collect sums due support money.’1 (Emphasis sup plied.) *7 reason of the fact that

By justice probably may have mis- carried, I am of the opinion this court to direct ought that in the interest of justice the case be remanded for deter- mination as to whether the had been laches.

I am authorized to state that Mr. and Mr. Currie Justice share the view here. expressed Fairchild Justice