Summary
In Kusick v. Kusick (1943), 243 Wis. 135, 9 N.W.2d 607, decided May 18, 1943, this court held that where in an action for divorce a divorce had been denied but a judgment had been entered awarding the custody and providing for the support of the minor children of the parties, the court had jurisdiction of that matter and could not be deprived of it by the circuit court of another circuit in a subsequent action for divorce between the parties.
Summary of this case from Dovi v. DoviOpinion
April 14, 1943. —
May 18, 1943.
APPEAL from an amended judgment and supplemental appeal from an order of the circuit court for Dane county: AUGUST C. HOPPMANN, Circuit Judge. Reversed.
Daniel H. Grady of Portage, for the appellant.
For the respondent there was a brief by Hall, Baker Hall, and oral argument by Paul Griffith, all of Madison.
On April 23, 1942, Mary L. Kusick applied to the circuit court for Dane county, Wisconsin, to amend a judgment of absolute divorce entered in said court on August 9, 1940, by increasing the allowance for the support of the three minor children. Appellant John Kusick appeals from the amended judgment entered September 16, 1942, increasing the allowance for support of the minor children and the allowance of attorneys' fees to respondent in the proceeding. There is also a separate appeal from an order dated November 9, 1942, allowing attorneys' fees and disbursements to attorneys for respondent on the original appeal to this court.
Judgment of absolute divorce was granted to Mary L. Kusick in the circuit court for Dane county, Wisconsin, on the 9th day of August, 1940, granting custody of the three minor children to her and ordering the husband, John Kusick, to pay $25 per month as support money for the children, which has been paid by him at all times since the first action was commenced. At the time of granting the divorce, the parties entered into a stipulation as to the division of property and the payment of the above support money, and providing also that the plaintiff was to assume and pay her own attorneys' fees, which stipulation was approved by the court and the provisions included in the judgment.
In 1936, respondent commenced an action for divorce against appellant in the circuit court for Marquette county, Wisconsin, which was tried before the court, and judgment was entered dismissing the action on the merits. In the same judgment, the court granted the custody of the children to this respondent and required this appellant to pay $25 per month for the care and support of these minor children. This judgment was entered under date of August 11, 1936.
A second action for divorce was brought by this respondent in the superior court of Dane county, and by stipulation the place of trial was changed to the circuit court for Columbia county, Wisconsin, which action was dismissed upon the merits by stipulation on the 5th day of May, 1939.
The court amended the judgment entered in the circuit court for Dane county, Wisconsin, by ordering defendant to pay $50 per month in place of $25 per month for the support of the minor children, and allowed attorneys' fees of $100, plus $5.20 disbursements, and impressed the real estate of the defendant with a lien to secure payment of the support money. An appeal was taken to this court and respondent then made application for additional attorneys' fees and disbursements on the appeal. By order, the court allowed $150 attorneys' fees and $50 for disbursements, any unexpended disbursements to be refunded. A supplemental appeal was taken from this order.
The appeals in this case are confined to the amendment of the judgment in the circuit court for Dane county, Wisconsin, affecting the care and support of the minor children, and the allowance of attorneys' fees in this proceeding. These are the only questions before the court for consideration on this appeal. Moerchen v. Stoll, 48 Wis. 307, 4 N.W. 352; Ledvina v. Ebert, 237 Wis. 358, 296 N.W. 110.
It was stipulated in open court in the instant proceeding that the judgment in the prior action for divorce in Marquette county awarded the custody of the minor children to the plaintiff, and adjudged that the defendant pay to the plaintiff $25 a month for their support. That judgment for custody and support of the minor children, although the action was dismissed on the merits, was authorized under sec. 247.28, Stats. The circuit court for Marquette county properly assumed jurisdiction of the custody and support of these minor children. A proceeding to amend this judgment and provide additional support for the minor children could have been properly instituted and granted, if the facts warranted it, at any time prior to the entry of the judgment in the circuit court for Dane county. The circuit court for Marquette county had power to enforce its judgment.
"Application to change or vacate a judgment should be made in the action in which it was entered and to the court that rendered it." Wescott v. Catencamp, 190 Wis. 520, 209 N.W. 691.
A stipulation of the parties could not confer jurisdiction on the circuit court for Dane county, where power to act is involved. Welhouse v. Industrial Comm. 214 Wis. 163, 252 N.W. 717; 21 C. J. S. p. 127, sec. 85. The circuit court for Dane county could not properly assume jurisdiction of the custody and support of the minor children in this action. The effect of the amended judgment herein, if upheld by this court, would nullify the Marquette county judgment providing for the support of these minor children, and interfere with the exclusive power of that court to enforce its judgment and modify it as the condition of the parties or the needs of the children might require. Such interference by one circuit court with the judgment and exercise of power by another circuit court cannot be approved.
"On principle, a court of concurrent jurisdiction should not take jurisdiction of a matter which is properly involved in a proceeding then pending in another court which is competent to render adequate relief in the premises." Cawker v. Dreutzer, 197 Wis. 98, 221 N.W. 401; 21 C. J. S. p. 745, sec. 492.
There is no contention that the circuit court for Marquette county is not competent to render adequate relief on the subject matter of this appeal. It is a court of concurrent jurisdiction; it has assumed and retained jurisdiction over the welfare of these minor children from the time the divorce action was started in 1936 up to the present time. This rule rests on public policy, and prevents multiplicity of actions involving the same statement of facts.
It necessarily follows that the allowance of attorneys' fees and charging the specific real estate with a lien for the payment of support money must fall.
By the Court. — Order amending judgment is reversed, and amended judgment is modified accordingly. Subsequent order allowing additional attorneys' fees is reversed. No costs or disbursements allowed on this appeal, but respondent to pay clerk's fees.
FRITZ, J., dissents.