Summary
In Limberg, just like in the case at bar, the trial court made a finding that the child which the plaintiff wife was pregnant with was a child of the marriage.
Summary of this case from E_____ v. EOpinion
March 8, 1960 —
April 5, 1960.
APPEAL from part of an order of the municipal court of Sheboygan county: CLARENCE F. WHIFFEN, judge. Reversed.
For the appellant there was a brief by Gruhle Fessler, joined in by Jacob F. Federer, guardian ad litem, and oral argument by Douglas K. Van de Water, all of Sheboygan.
For the respondents there was a brief by Brennan, Brennan Brennan of Milwaukee, and oral argument by Joseph K. Brennan.
Proceeding for blood tests of plaintiff, defendant, and child, following a divorce action. The plaintiff wife was granted a divorce from the defendant husband on April 1, 1957. The action was contested by the husband, hereinafter referred to as the defendant. At the beginning of the trial the plaintiff testified that she was pregnant and that she expected her child to be born in April, 1957. He was born on April 20th of that year. Prior thereto the parties had but one child, born on January 4, 1953. When plaintiff's pregnancy was testified to, the defendant's attorney stated that they were going to contest the paternity of the child. On July 17, 1957, based upon an affidavit by the defendant, the court ordered the plaintiff to show cause on July 19, 1957, why a blood test should not be ordered for the plaintiff, the defendant, and the child, under the provisions of sec. 325.23, Stats. 1957. Thereafter the child was made a party to the action and a reputable attorney was appointed as his guardian ad litem.
Before the application for the blood test was determined by the trial court, the defendant appealed to this court from the judgment of divorce. Upon the appeal the defendant alleged errors upon the trial and that there was insufficient evidence to warrant a judgment of divorce. Our decision upon the appeal was handed down on November 5, 1958, and appears in 5 Wis.2d 327, 92 N.W.2d 767. The judgment was affirmed. Among the findings of fact by the trial court was the following:
"The defendant has, without just cause or provocation, accused the plaintiff of acts of infidelity, and has unjustly questioned the paternity of the child with which the plaintiff is now pregnant."
As one conclusion of law the trial court stated:
"The defendant shall pay all necessary doctor, medicine, and hospital expenses connected with the birth of the child with which the plaintiff is now pregnant. The plaintiff shall submit to the defendant a statement or statements therefor, the same to be paid by the defendant within three (3) months thereafter. After the birth of the expected child, the parties shall apply to the court for revision of the provision of support. At that time visitation rights will be reviewed."
On January 2, 1958, the trial court entered an order directing the defendant to pay an additional $50 per month for the support of the children of the parties. On March 19, 1959, an order was issued requiring the defendant to show cause on March 27, 1959, why he should not be punished for contempt for failure to comply with the judgment of divorce and the further order dated January 2, 1958. The matter was adjourned to April 14, 1959, and on April 1, 1959, the defendant served a notice that on the adjourned hearing date of the order to show cause lie would move the court to alter the relief granted to the plaintiff in the judgment and to order that the plaintiff, the defendant, and the child, Brian John Limberg, have blood tests under the provisions of secs. 52.36 and 325.23, Stats. 1957.
Pursuant to said order to show cause and to the motions the trial court on July 25, 1959, entered an order that provided, among other things, for the blood tests. The plaintiff appealed from that part of the order directing the taking of the blood tests.
The defendant filed a motion with this court for a dismissal of the appeal, contending that the order for a blood test was not an appealable order. After hearing the arguments on the motion, this court denied the same without prejudice. He devotes a considerable portion of his brief on this appeal to the appealability of the order.
The plaintiff contends that the judgment of the trial court is res judicata as to all issues which were raised during the trial, including the question of the paternity of Brian John Limberg. She argues, therefore, that the trial court lacked jurisdiction to order that blood tests be taken at this stage of the proceeding. It is claimed that the order is appealable under the provisions of sec. 274.33 (3), Stats., since the order determines a question of jurisdiction. The defendant contends that no present jurisdictional question is involved. In his brief he makes the following statements:
"There is no request by the respondent husband to amend the divorce judgment nor is there any request to alter any findings of fact or conclusions of law made by the trial judge at the conclusion of the divorce trial. . . .
"The appellant wife forgets that this order for blood tests is not `on the issue of paternity' but is on the issue of providing factual information for the trial court to assist it in determining future jurisdictional questions involving the parties to this divorce and their children."
It will be noted that the motion directed to the trial court to issue an order for blood tests was made more than two years after the judgment was entered and more than five months after the judgment had been affirmed by this court. Although there was not a specific finding that the defendant was the father of the child born on April 20, 1957, the finding that the defendant had accused the plaintiff of acts of infidelity without just cause and had unjustly questioned the paternity of the child, together with the conclusion of law and the provision in the judgment that the defendant should pay all necessary medical and hospital expenses connected with the birth of the child and for a revision of the provisions for support after his birth, amounts to a finding and determination by the trial court of the issue of paternity which was contested during the trial. The order of January 2, 1958, referring to the children of the parties necessarily included Brian and is an indication that the trial court had so determined by the findings and judgment.
Since there was a prior adjudication of the issue raised upon the trial, the defendant is now estopped from attempting to relitigate the same issue. Whether it be res judicata or estoppel by judgment is unnecessary for us to determine. For the distinction between the two, see the article thereon by Hon. LEWIS J. CHARLES, judge of the Fifteenth judicial circuit in the June, 1959, issue of the Wisconsin Bar Bulletin. Since the defendant is estopped by the prior adjudication of the issue, the trial court was in error in issuing the order. Judgments of divorce will have no finality if parties are permitted to attempt to retry issues two years after a judgment has been entered.
The defendant relies upon the provisions of sec. 247.25, Stats., which give the court authority to revise and alter judgments of divorce concerning the care, custody, maintenance, and education of the children. The very language of the statute presupposes that the children referred to are the children of the parties. Revisions under that statute are based upon a change in the circumstances of the parents or of their children. The continuing jurisdiction of the trial court is limited to the purposes therein stated, and may not be used for a collateral attack upon the status of the parties to the action.
The defendant had ample opportunity during the trial to ask for an adjournment thereof until the child had been born and then to request blood tests. At that time the statute was permissive rather than compulsory but it has been our experience that upon any reasonable showing the trial courts granted such applications. The defendant had an application for blood tests pending at the time he appealed from the judgment. He had a choice of the procedure to follow and elected to appeal from the judgment. He is too late now to attempt to try a new approach to the old problem that was determined by the judgment.
When the defendant states that the order for blood tests is not "on the issue of paternity" he is admitting that the trial court had no jurisdiction to sign the order. Sec. 325.23, Stats., provides that blood tests shall be taken to determine the parentage or identity of any child, person, or corpse. The only possible reason for seeking the order would be "on the issue of paternity."
The trial judge, a very conscientious person, attempts to justify the signing of the order on the ground that only good can come from it. In his memorandum decision he indicates that he is convinced that the results of the blood tests will be favorable to the plaintiff and to the child. Therefore the results of the tests might abate the obsession of the defendant that the child is not his and would allay any suspicion created by the defendant's attitude.
We certainly do not disagree with the convictions of the trial court. However, this is the first case involving the questions here presented since the statute was amended and the trial court is required to sign the orders for blood tests if applications are timely made. What is decided here may well establish some matters of practice in future cases.
Upon the first appeal in this action we decided that the trial court was not required to adjourn the case, upon its own motion, until after the birth of the child. We still regard it as the duty of the party raising the issue of paternity to move for the adjournment. It would be entirely proper, however, for the court to adjourn the action on its own motion. In cases such as this where the child was born after judgment has been entered, the proper procedure is to move to open the judgment for the purpose of obtaining an order for blood tests and presenting the result of the tests. Had that been done in this case, the application would undoubtedly have been granted. The matter could have proceeded in a timely and orderly manner and the defendant would not have been faced with an abandonment of his application for the tests in order to take the appeal.
It is our conclusion that the issue of the paternity of Brian John Limberg is res judicata and that the defendant could not raise the question if he had attempted to do so on the date of his motion. Since he is not raising the issue, his application for the tests under the provisions of the statutes has no foundation and the court had no jurisdiction to issue the same. The order is, therefore, appealable. Upon the merits, the issues must be resolved in favor of the plaintiff.
By the Court. — That part of the order appealed from is reversed. Cause remanded with directions to strike the same from the order.