Summary
In Miller v. Miller, 15 Wis.2d 583, 113 N.W.2d 403, the Wisconsin Court, without discarding the rule of res adjudicata [sic], recognized that there exist special conditions which should permit a Court to go behind its previous determination in these custody matters.
Summary of this case from Kolb v. KolbOpinion
January 11, 1962 —
February 6, 1962.
APPEAL from an order of the circuit court for St. Croix county: ANDREW W. PARNELL, Circuit Judge of the Tenth circuit, Presiding. Reversed.
For the appellant there were briefs by Hale, Skemp, Hanson, Schnurrer Skemp of La Crosse, and oral argument by William P. Skemp.
For the respondent there was a brief by Heywood Hayes of Hudson, and oral argument by Kenneth H. Hayes.
The plaintiff, Jean Miller, and the defendant, Morton Miller, were married in 1947. On April 8, 1960, the plaintiff was granted an uncontested divorce from the defendant on the grounds of cruel and inhuman treatment. By stipulation the custody of the four children was awarded to the plaintiff.
The plaintiff is twenty-eight and the defendant thirty-six years of age. The children of their marriage are: Susan, age thirteen; Debra, age ten; Eugene, age nine; and Robert, age four. Defendant is employed by the United States post office in St. Paul, Minnesota. The plaintiff has had part-time employment as a waitress. Before their divorce, the parties had lived together in their home at Hudson, Wisconsin. The trial court made a finding at the time of the granting of the divorce that she was a fit and proper person to have the custody of the children. There was no express finding as to the' fitness of the defendant in the original judgment.
The plaintiff remained at the home in Hudson until about May 1, 1960, when she moved to La Crosse and rented a house. Mrs. Miller enrolled three of the children in school at La Crosse; the youngest child was left with a baby-sitter while the plaintiff worked. In May, 1960, when the defendant learned that the plaintiff and the children were living in La Crosse, he went to La Crosse, took the three children out of school and the one child away from the baby-sitter, and he brought them back to Hudson. He has retained them ever since that time.
On May 21, 1960, the defendant obtained an order to show cause why he should not be awarded custody of the children. In his supporting affidavit the defendant alleged that he took the children from La Crosse with the consent of the plaintiff, and that the plaintiff had a paramour in La Crosse. Although the plaintiff and her attorneys of record received proper notice of the hearing on the order to show cause, neither appeared to contest the defendant's application. The trial court made a finding on July 1, 1960, that the plaintiff was "keeping company with a man, or men, at La Crosse," and the judgment was amended so as to award custody of the children to the defendant. The circuit judge for St. Croix county, the Honorable ROBERT G. VARNUM, presided over both the divorce proceeding and the subsequent hearing on the order to show cause obtained by the defendant.
On February 7, 1961, the plaintiff obtained an order to show cause why the judgment of July 1, 1960, which amended the original divorce judgment, should not again be revised with respect to custody. Both parties appeared and were represented by counsel at the hearing on this order to show cause. The Honorable ANDREW W. PARNELL presided in place of Judge VARNUM at this hearing, and it is Judge PARNELL's order of April 5, 1961, which is here on appeal.
The testimony showed that while the children were living with their father at Hudson, the thirteen-year-old daughter, Susan, had the responsibility of looking after the other children. Susan also helped with the housekeeping. The defendant arranged for a neighbor to keep an eye on the house while he was at work. Other witnesses testified that the children were well provided for by the defendant and that they were always neat and clean. The defendant testified that he was making arrangements to employ a permanent housekeeper. Susan testified that she would prefer to live with her mother.
The plaintiff explained why she defaulted at the previous custody hearing. She testified that the defendant threatened her with bodily harm if she came back to Hudson. A note admittedly written by the defendant was produced in which he stated:
"Jean, it's been fifteen years since I killed, but no one on this earth will take these children from me, it would have to be over my dead body. So you consider yourself lucky that you got them once. Don't try it the second time! ! ! !"
The daughter, Susan, testified that when she saw gun shells in the car and asked what they were for, her father stated that he "would shoot mother."
After the last hearing the learned trial judge stated in his decision:
"There have been no substantial changes in the circumstances of the parties since the last order of custody . . . . It is assumed that the last change in custody was not lightly considered by the trial judge. This court, after very deliberate consideration, is not convinced that the welfare of these children would be better served by again ordering a change in their custody at the present time."
Appellant seeks a review of the trial court's order denying her application for a change of custody. It is noted that the divorce granted on April 8, 1960, was uncontested, and the custody of the children was awarded to the mother upon the husband's stipulation. Also, the change in the custody ordered on July 1, 1960, was the result of an uncontested hearing; Mrs. Miller's failure to oppose the change in custody is alleged by her to have resulted from the threats of her husband recited above.
The question whether the custody of a child should be changed is within the sound discretion of the trial court. The decision of the trial court will be accorded great weight. Pollock v. Pollock (1956), 273 Wis. 233, 243, 77 N.W.2d 485. Ordinarily only those events which have occurred since the prior custody determination will be considered by a court at a subsequent custody hearing. Elies v. Elies (1941), 239 Wis. 60, 300 N.W. 493.
To establish a policy of finality in litigation, courts have enforced the doctrine of res judicata. However, by sec. 247.25, Stats., our legislature has impliedly declared the public policy of this state to be that a prior adjudication of custody is not res judicata on the issue of custody. This section of the statutes provides that a court may subsequently revise and alter a divorce judgment with respect to the custody of children, and the court may "make a new judgment concerning the same as the circumstances of the parents and the benefit of the children shall require."
The reason for such policy is apparent: The lives and welfare of minor children should not be concluded by a doctrinaire application of rules of law. In the past this court has applied res judicata to certain aspects of a prior custody determination. Wall v. Wall (1948), 252 Wis. 339, 31 N.W.2d 527. But the doctrine should not be strictly applied. In Zillmer v. Zillmer (1960), 8 Wis.2d 657, 662, 663, 100 N.W.2d 564, 101 N.W.2d 703, the following was stated:
". . . the public interest in promoting the welfare of the child has frequently been allowed to temper the harsh application of the rule of res judicata, . . . It is logical that the interest of the child and of the public in the child's welfare should not be concluded by the failure of the parents to bring relevant and important facts to the attention of the court."
In the recent case of Bliffert v. Bliffert (1961), 14 Wis.2d 316, 323, 111 N.W.2d 188, this court suggested "that the doctrine of res judicata is not to be applied to custody matters with the same strictness as to others."
When the question concerns the custody of the children of divorced parents, the trial judge must not be foreclosed from inquiring into matters antedating the preceding judgment. The doctrine of res judicata is not a complete barrier in custody matters if circumstances exist which prompt the trial judge, in his discretion, to go behind the previous determination. Such re-examination should be had only under special conditions. In the case at bar, we consider that the alleged threats by Mr. Miller to his wife may have prompted her to default at the hearing which resulted in the transfer of custody from her to the defendant. If the trial judge is impressed with the merits of that contention, he should be free to exercise his discretion to re-examine the conduct of the parties and the interests of the children without being confined by the doctrine of res judicata.
The only contested hearing between these parties was the one held on February 21, 1961; we have doubt that at such hearing the trial judge considered events occurring before July 1, 1960. It is not clear that the learned trial judge recognized that he had the discretion to weigh matters antedating the preceding judgment in arriving at his decision. Because of this uncertainty and because the welfare of minor children is involved, we conclude that the order of April 5, 1961, should be reversed and the matter returned to the circuit court for St. Croix county for further proceedings. Since Judge VARNUM, the judge of such county, heard this matter in its earlier stages, and since the reason for calling in the judge of another circuit is no longer applicable, it seems reasonable that further proceedings be heard by Judge VARNUM. Until further order of the trial court the custody of the children shall remain with the defendant.
By the Court. — Order reversed. Cause remanded for further proceedings not inconsistent with this opinion.