Welch v. Welch

Divorce — Minob Children. (1-4,6) Care and custody of minor chidren— Power of the court— General principles of its exercise. (7, 8) Costs in divorce actions and subsequent proceedings. Presumption : (5) In appellate court inf amor of decision appealed from. 1. The authority given to the circuit court in divorce cases, to render judgment concerning the care, custody and maintenance of the minor children of the parties, and to revise and alter such judgment.from time to time (sees. 19, 20, ch. Ill, R. S.), is unlimited, and is to be exercised, at the discretion of the court, with a view to subserve the best interests of such minor children. 2. The court may, in its discretion, award the care and custody of the minor children to either party to such an action, and direct by whom and how they shall be maintained, whatever may have been the ground of divorce; or it may provide (as in this case) that one party shall be the guardian for nurture, and the other guardian for the mental education and discipline. S. In general, all other circumstance being equal, the paramount common law right of the father to the children will be recognized; but if the divorce has been ganted for his fault or misconduct, such fault or misconduct may properly be considered by the court in the exercise of its discretion. . 4. This court will not reverse the judgment of the circuit court in such a case unless it can say from the facts appearing of record that such judgment was wrong. 5. As to facts not appearing by the record, and which cannot be brought before the court of review, derived from the personal knowledge and observation of the circuit judge, it will be presumed that they were such as to favor the conclusion reached by the court below. 6. In this case, on granting a judgment of divorce at the suit of the -wife,' for defendant’s willful desertion of her, the court gave her the care, custody and education of their one child, a boy. Subsequently both parties married again, and the court afterwards modified its judgment so as to transfer to the defendant the care and custody of the boy (now fourteen years old) for the pujóse of education, and so long as he should keep and maintain the child at school. Held, that upon the facts shown by the record (see below), this court cannot say that the circuit court abused its discretion in so modifying the judgment. 7. In actions for divorce and proceedings connected therewith, this court may give or withhold costs, at its discretion. 8. The judgment in this case is affirmed without costs in this court to either party, except those of the clerk, which the defendant is required to pay.

APPEAL from the Circuit Court for Marathon County. In 1861, Louisa Welch applied to said circuit court for a decree of divorce from Thomas Welch, and to be allowed the care and custody of the infant child of said marriage. The complaint averred that the parties intermarried, at Wausau in Marathon county, in April, 1859 ; that plaintiff then was and ever since bad been a resident of said county; that immediately after the marriage defendant left Wausau with the expressed intention of going “down the river to St. Louis,” and had not since returned to said county, and had not coi’res-ponded with plaintiff during that time; that since the marriage plaintiff had not in any way received aid, assistance or comfort' from defendant; that she was the mother of one child by defendant, which had been wholly supported by her for one year preceding the date of said complaint; that defendant had not contributed anything to its support; and that he had willfully deserted the plaintiff for one year next preceding the complaint. The defendant appeared to the action, by attorney, but made no defense; and after proofs taken, the court found all the material allegations of the complaint were true; and it decreed a dissolution of the marriage, and also ordered and decreed “ that plaintiff have the care and custody and education ” of the child mentioned in the complaint, “ until the further order of this court.” In 1868, when the child in question, a boy, was about eight years old, the defendant filed a petition in said court containing the following allegations : that while defendant was the lawful husband of plaintiff, said child was born to them of their cohabitation ,• that since the decree above recited, plaintiff had remarried, and was then living “in the western settlements of said county of Marathon,” and was “ in very limited circumstances, and utterly unable to properly clothe, maintain and educate said child,” who was “ growing up in gross ignorance, and without any or [with] little of the advantages of refined society;” that the petitioner had resided for about eight years then last past, and still resided, in the city of Stevens Point in this state, and had also remarried, and had abundant means to properly bring up, clothe, maintain and educate said child; that it was his wish and intention to afford the child good advantages, and give him a superior education ; and that the future welfare of the child required that the petitioner should have the care and custody of him. The court was therefore asked so to amend the decree that the care and custody of the child might be committed to the petitioner absolutely, without the intervention of the plaintiff. N o action appears to have been taken upon this petition for several years. In January, 1872, notice was served upon plaintiff’s attorney, of a motion that the decree be modified so as to award the custody of the child to the defendant; which motion would be based on the petition above recited, and upon the whole record in the cause. It appears that at the hearing defendant also read, in support of the motion, an affidavit of E. L. Pike and Gr. "W. Hungerford, dated August 14, 1872, to the effect that they had known defendant for ten years; that he was a person of good habits and good moral character; and that he had ample means to educate and maintain the child “ in a highly respectable manner and fit for any position or profession in society.” Eor the plaintiff there were read coun- ' ter affidavits, as follows : 1. Of the boy himself, that he was twelve years of age on the 2d of September, 1871; that it was his free choice and wish to be left in the care and custody of his mother ; and that he did not desire to live with or be in the care and custody of the defendant. 2. Of Frederick Rol-lenhagen, that he is the husband of the plaintiff; that the boy in question is now and always has been under the full control, custody and care of the plaintiff; and that affiant does not interfere in any manner therewith. 3. Of M. H. Barnum, Esq., that in April, 1865, plaintiff applied to affiant, who was then district attorney of Marathon county, complaining that she (plaintiff) was about to become the mother of a child by defendant, and that defendant utterly refused to provide for her, and was about to leave said county and not return ; whereupon affiant procured the defendant’s arrest; and had him confined in the common jail of the county; that at that time defendant had property to a considerable amount, which was about to be attached for the purpose of providing for plaintiff, but that defendant then agreed to marry plaintiff, and accordingly the ceremony of marriage was performed, and defendant was set at liberty; that defendant immediately thereupon left the county of Marathon, and did not return to his said wife ;, that about one year afterwards plaintiff applied to affiant to procure for her a divorce from defendant; that affiant commenced a suit for that purpose, and defendant appeared by his attorney, and demanded a copy of the complaint in said action, and said copy was served personally by affiant; that defendant then and there, at the city of‘Stevens Point, declared to affiant that his only object in defending the suit was to prevent plaintiff from getting any of his property, or the costs of the suit, and that if she would let his property alone, “ she and her child might go to hell — he would never molest her or her child that defendant made no further appearance in the suit; “ that two or three years ago, to the certain knowledge of this affiant,” defendant “ kept a whisky shop and gambling house in the city of Stevens Point; that he still continues to keep tbe same ; and that, to the best of the knowledge of the affiant, the reputation of said bouse remains the same, and is notoriously bad.” 4. Of Louisa Rollenhagen, formerly Louisa Welch (the plaintiff), that she has read the foregoing affidavit of Mr. Barnum, and the same is true, of her own knowledge ; that the child is now living with affiant in the town of Berlin, Marathon county, where affiant has a good, comfortable home with her present husband, Frederick Rollenhagen; that affiant is possessed of property in her own right sufficient to support herself and said child, and to educate the child liberally until he shall become twenty-one years old ; that she has full control of the child, without any interference on the part of her said husband; that the child “ is well advanced in education already, and regularly attends school and religious services that there is a good school kept within one mile of affiant’s residence, and the child attends said school at least eight and a half months every year. 5. Of George Steltz, that he “ is a resident of Marathon county, and is now the marshal of the village of Wausau in said county, where he has resided for more than ten years, during all which time he has been acquainted with both the plaintiff and defendantthat he “ knows of his own knowledge that the defendant keeps a retail liquor saloon in the city of Stevens Point, and permits gambling to be carried on at said saloon, and that gambling is carried on therethat affiant, for the past three years, has frequently seen persons at said saloon “ engaged in gambling for money at the game known as ‘ faro ’ or ‘ bob tailand that said saloon has the reputation of a gambling house, where drunkenness and gambling are allowed by the defendant;” that the plaintiff “ is comfortabl}'' situated, in the midst of a Christian community, easily accessible, to schoolsand that she has means of her own sufficient to support herself and child, and to educate the child ; and that said child “ is properly cared for and well advanced in education.” ^ Thereupon the court made an order, 'or judgment, the material part of which is as follows: “ It appearing to the satisfaction of the court that the defendant is a fit and proper person to have the care, custody and control of said child, * * * and that he has ample means, not only to support, but to educate liberally said child, and is anxious to do so, and that it is for the benefit and interest of said child that he have the custody thereof in order to educate him: It is therefore * * * ordered and adjudged that the decree made herein * * * be, and the same is hereby modified so that the defendant shall have the care and custody of the child William Welch, for the purpose of educating said child; and for that purpose it is ordered that the custody of the child be given to him so long as said child is by the defendant kept and maintained at school at Stevens Point during school terms. And further, it is ordered that the mother of said child shall at all times have the right and privilege of visiting said child, either at the house of the defendant or elsewhere; and that said child shall visit the plaintiff, his mother, at the end of each term of the school in Stevens Point, if he shall so desire, at the cost of the defendant; and that, in any event as to terms of school, the said child shall visit his mother twice in each year, at such times as will not prevent his attending school, if he desire so to do, and at the expense of defendant for transportation to and from his mother. And further, that upon cause shown, this order may be further amended or modified on application of either party.” as to the absolute right of appeal from the order, cited sec. 10, eh. 264, Laws of 1860; and as to the merits he cited In re Goodenough, 19 Wis., 274; Miner v. Miner, 11 Ill., 43. as to the power and duty of the court in such cases, cited 2 Kent (11th ed.), 218, 219 and note (V); Story’s Eq. (Beclf. ed.), §§ 1341 et seq.; 3 Hill, 399; and be argued that the decision of the court below would not be reversed unless shown to be an abuse of its discretion.