Opinion
September 10, 1940 —
October 8, 1940.
APPEAL from an order of the county court of Winnebago county: D. E. McDONALD, Judge. Reversed.
The cause was submitted for the appellant on the brief of Barnard Mullen of Oshkosh, and for the respondent on that of O'Leary Joyce of Neenah.
The order from which this appeal was taken was entered by the county court of Winnebago county on October 14, 1939, which order amended the judgment of September 2, 1937, in the divorce action between the parties. The order changed the custody of the two minor children of the parties from their mother to their father. At the time of the entry of this order, the children, Audrey and Annette Acheson, were six and three years of age, respectively.
The parties were married at Oshkosh on January 4, 1933. This was respondent's second marriage. The plaintiff-appellant obtained her divorce from the defendant-respondent on the grounds of cruel and inhuman treatment other than by physical violence. The appellant is thirty-two years of age and respondent is thirty-three. Both parties have since remarried. Appellant married I. W. Giebel, a widower, who operates a 120-acre farm in the town of Reedsburg, Sauk county, Wisconsin, the father of six children by a former marriage, five of whom are now living in the Giebel home. One child has been born of this last marriage. Respondent and his present wife live in the city of Neenah where he is employed as a laborer by the Neenah waterworks. It appears that respondent was convicted in the municipal court of Milwaukee county on December 18, 1930, on the charge of abandonment of his first wife and minor child; that the sentence of said court was suspended for the full term of two years, defendant being placed on probation.
In the divorce action the court found "that the mother is a fit and proper person to have the care and custody of the minor children." No finding was made that the father was a fit and proper person to have the care and custody of said minor children. The judgment gave the father the right to see and visit the children at all reasonable times. On July 27, 1939, the judgment was amended by order of the court giving the father the custody of the children for the period from July 10th until August 31, 1939, subject to the right of the mother to visit the children at all reasonable times. On August 26, 1939, an order to show cause was entered requiring appellant to show cause before the court on September 1, 1939, why the defendant (respondent) should not have permanent custody of said minor children. At this hearing testimony was taken. Following the hearing, the court below filed its decision in which, among other things, the court said:
"The children seem to be happy with the defendant and his wife, and his wife seems to be very fond of them. The plaintiff and Mr. Giebel appear to be fond of the children, and they have a nice, comfortable farm home.
"The court felt at the time of the granting of this divorce [September 2, 1937] that the mother was the proper person to have the custody of these children. The parties had been before the court many times since the divorce, over one thing and another, and finally culminated in a hearing to change the custody of the children. Both the father and mother are fond of these children, but the welfare of the children is the controlling consideration in the mind of the court. I feel that the two little girls would not receive the attention in the Giebel home that they would receive in the defendant's home because there are six other children living in the Giebel home, five of Mr. Giebel's from his former wife and one of Mr. Giebel's and the plaintiff's and in all probability Mr. Giebel and the plaintiff will, in the future, have more children. The defendant's wife seems to be very patient with these children, and there are no other children in the home except these two girls, and I feel that for their welfare the children would be better off if they were awarded to the defendant rather than if they lived on this farm at Reedsburg with six other children, most of them of school age. I do not say that the mother of these children is an improper person to have the custody of them nor do I say that the father is a proper person to have the custody of these children, but the court is looking at it from the standpoint of the opportunities that can be given these children in the future."
By the terms of the judgment in the divorce action, the father was required to pay the sum of $40 per month until the further order of the court for the support, maintenance, and education of the two children. At the time of the hearing on the order to show cause, he was in arrears in the sum of about $240. At this hearing Mrs. Jamieson, a probation officer for Winnebago county, testified from her reports that the present home of the mother (the Giebel home) was a very desirable home; that the Giebels seemed to have made quite a secure place for themselves in the community, that while the mother might be very busy with all the children and as a farmer's wife, she thought that the mother's interest and that of the foster father (Mr. Giebel) was extremely sincere. She further testified: "I think that the present Mr. and Mrs. Acheson are trying to wean the children away from their mother, which I don't think ought to be done in this case." Additional material facts will be stated in the opinion.
The trial court proceeded upon the right conception of the law, namely, that the result reached should subserve the best interests of the minor children. Welch v. Welch, 33 Wis. 534; Johnston v. Johnston, 89 Wis. 416, 62 N.W. 181; Markwell v. Pereles, 95 Wis. 406, 69 N.W. 798. The conclusion of the trial court should not be disturbed unless clearly wrong. Welch v. Welch, supra; Jenkins v. Jenkins, 173 Wis. 592, 594, 181 N.W. 826. In Jensen v. Jensen, 168 Wis. 502, 504, 170 N.W. 735, the court said:
"The welfare of the child is now the controlling consideration; and with regard to children of tender years, especially girls, preference will ordinarily be given to the mother, other things being equal and she not being unfit."
In Jenkins v. Jenkins, supra, the custody of three minor children (boys) was involved; the defendant wife without cause left plaintiff taking the youngest son, Eugene, with her. The other two children remained with their father. The court granted the custody of all the children to the father, permitting the mother to visit them at reasonable times. Defendant appealed from the judgment alleging that the court erred in granting the custody of Eugene to the father instead of to herself. The trial court found that both the father and mother were morally fit and financially able to care for one or all of the children, but concluded that it was for the best interests of the children that they should be brought up as one family and for that reason gave the custody of the three boys to their father, their ages being eight, five, and three years, respectively. After the parents' separation, the mother and son Eugene lived with the mother's parents in Duluth. The other two boys lived with their father in Superior where the father had a housekeeper and maintained a home. This court held that the trial court erred in taking the youngest child from the custody of the mother. At page 595 the court said:
"For a boy of such tender years nothing can be an adequate substitution for mother love — for that constant ministration required during the period of nurture that only a mother can give because in her alone is duty swallowed up in desire; in her alone is service expressed in terms of love. She alone has the patience and sympathy required to mold and soothe the infant mind in its adjustment to its environment. The difference between fatherhood and motherhood in this respect is fundamental and the law should recognize it unless offset by undesirable traits in the mother. Here we have none so far as mother love is concerned."
The uncontradicted testimony of several witnesses who have frequently visited at the Giebel home since appellant's marriage to Mr. Giebel is to the effect that all the children were neat and clean; that they all showed affection for Mrs. Giebel; and that she showed affection for them. It appears that the home is a large modern house equipped with electric lights, hot and cold running water, and a bathroom. The house has five bedrooms and the two children whose custody is in question had a bedroom by themselves. The home is located about a quarter of a mile from a country school.
For several years prior to the time that appellant was employed by Mr. Giebel as housekeeper, she and the children and respondent were getting aid from the city of Neenah. It further appears that at the time of the divorce and at the time of the hearing on the order to show cause respondent had debts aggregating $1,000 in addition to the amount he owed for the support, maintenance, and education of the children. It is obvious that at the present time he is in poor financial circumstances. It appears that respondent's present wife, prior to her marriage to respondent and while respondent was still living with appellant, loaned the respondent the sum of $700. The respondent made no explanation as to his conviction on the charge of abandonment of his first wife and child. We think it should also be noted that the trial court declined to find that the father is a fit and proper person to have the custody of these children. Nevertheless their custody has been taken from the mother and given to the father on the ground that it is best from the standpoint of the welfare of the children.
It is apparent from the nature of respondent's employment and his hours of work that if the custody of these children is to remain with him, they will, generally speaking, be in the custody and care of the present Mrs. Acheson, a stranger in blood. However good her intentions, though they be the very best, they will not be an adequate substitute for a mother's love and care.
The court below said it felt that the two little girls would not receive the attention in the Giebel home that they would receive in the respondent's home because there are six other children living in the Giebel home. We do not regard this circumstance a sufficient cause for taking their custody from the mother and giving it to the father. The companionship of other children in the home may be desirable. All the testimony indicates a wholesome environment in the Giebel home.
After a careful consideration of the evidence and all the facts and surrounding circumstances, we conclude that the trial court erred in taking the custody of Audrey and Annette away from their mother and giving their custody to their father. By the Court. — The order of October 14, 1939, and the whole thereof, is reversed. Cause remanded with directions to enter an order awarding the custody of the two minor children of the parties, Audrey and Annette, to their mother, with provision that the father may see and visit said children at such times and under such conditions as the trial court may deem proper; also with provision for the payment of such amount of money as the trial court may deem just and proper for the support and maintenance of said children. Appellant to have costs on this appeal.