Opinion
No. 19.
Argued January 4, 1971. —
Decided February 2, 1971.
APPEAL from a judgment of the county court of Milwaukee county: JOHN A. FIORENZA, Judge. Remanded with directions.
For the appellant the cause was argued by Gerald C. Kops, assistant corporation counsel of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, and Robert P. Russell, corporation counsel.
For the respondent there was a brief by Usow, Teper Weiss of Milwaukee, and oral argument by Herbert L. Usow.
The judgment appealed from was entered on January 26, 1970. It dismissed the complaint of the plaintiff-appellant which alleged the defendant-respondent was the father of her child born out of wedlock. This appeal seeks to review an intermediate order entered on April 24, 1969, which granted the defendant's motion to reopen and set aside a judgment entered upon the same complaint on June 19, 1967. The 1967 judgment was taken by default and upon the testimony of the complaining witness, Mrs. Hubanks; it found the defendant to be the father and ordered lying-in expenses and support money payments pursuant to the pertinent sections of ch. 52, Stats.
Kazetta Green, now Kazetta Hubanks, commenced a paternity action against the defendant, George Michael Williams, on May 26, 1965, alleging that he was the father of a son born to her out of wedlock on April 24, 1963. Williams appeared before the county court on June 30, 1965, and denied that he was the father. Because he was under twenty-one years of age a guardian ad litem was appointed to represent him. On September 9, 1965, the defendant was bound over for trial after a preliminary examination and a blood test was ordered at his request, which subsequently proved to be nonexclusionary.
The initial trial date was set for December of 1965, but the trial was adjourned because the court was informed that defendant was incarcerated in the state reformatory at Green Bay and would not be released until December of 1966. (Defendant actually was not released until October of 1967.) On May 9, 1967, an order was signed scheduling the matter for trial on June 6, 1967.
The case came on for trial on June 6, 1967. The complainant appeared in person and by Mr. James E. Talaska, assistant corporation counsel. Jack G. Lichtig appeared as attorney and guardian ad litem for the defendant, who was not present. Attorney Lichtig advised the court that he had not had any contact with defendant for about two years and did not know whether he had been released from prison. He stated that on May 11, 1967, he sent a copy of the notice of trial to defendant's last known home address in Milwaukee but that his letter was returned from that address. This was the same address to which the clerk had sent a copy of the notice.
The court discharged Attorney Lichtig as guardian ad litem because defendant had become twenty-one years of age in November, 1966, and granted his request to withdraw as defendant's attorney because he had not been able to contact the defendant. Mr. Talaska then moved the court to proceed with the trial pursuant to sec. 52.34, Stats., and the court proceeded.
After hearing the testimony of the complaining witness, Kazetta Hubanks, the court found the defendant to be the father of her child. Pursuant to the judgment the court ordered the defendant to pay the lying-in expenses and past support of the child at the rate of $15 per month commencing July 1, 1967, until paid. It further ordered the defendant to pay future support and maintenance for the child by payment of $35 per month, also commencing July 1, 1967, until the child reached the age of eighteen.
On June 29, 1967, a letter was sent by trustee Martin Love, addressed to the defendant at the State Correctional Institution at Fox Lake, requesting that he contact the trustee's office upon his release from prison. The trustees are responsible for enforcing orders of the court in paternity matters. The defendant denies ever receiving any such letter. However, upon his release from the reformatory at Green Bay in October of 1967, he did appear at the trustee's office where he conferred with Mr. Love on October 9, 1967. He testified that someone, probably his parole agent, had advised him to contact the trustee's office.
What took place at this conference between defendant and Mr. Love is in dispute. The defendant testified that Mr. Love advised him that he was supposed to make some payments and that when he denied that he was the father, Mr. Love said "he would see about it." He stated that he never heard from Mr. Love or anyone else after that date. Defendant could not recall Mr. Love saying anything about the judgment that had been entered, but only that defendant owed some money. Mr. Love, on the other hand, testified that consistent with his usual practice he did talk to defendant about the judgment and advised him that as a consequence he had to make payments to support the child.
No payments were made pursuant to the judgment entered on June 19, 1967, and on December 10, 1968, County Judge THADDEUS J. PRUSS issued a commitment to the county jail for failure to comply with the judgment on motion of the corporation counsel.
On January 24, 1969, defendant filed an order to show cause seeking to set aside the judgment entered on June 19, 1967, and to restrain all proceedings initiated for the purpose of collecting the judgment. A hearing on the order was held before Hon. EDWARD G. MINOR on February 3 and 4, 1969, and testimony was given by defendant and Mr. Love. The court ordered the judgment set aside and the matter set for trial. A memorandum opinion was filed on April 21, 1969, and the order entered on April 24, 1969.
A second trial commenced on September 3, 1969, before Judge FIORENZA, who also heard and conducted the original trial. The court found that the plaintiff failed to prove by clear and satisfactory evidence that defendant was the father of the complainant's child. Judgment dismissing the action with prejudice was entered on January 26, 1970. Plaintiff appeals from this judgment, seeking review of the intermediate order entered by Judge MINOR on April 24, 1969, setting aside the judgment of June 19, 1967.
The authority to open and amend or set aside the judgment entered on June 19, 1967, must be found in sec. 269.46 (1), Stats., which provides:
"The court may, upon notice and just terms, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him obtained, through his mistake, inadvertence, surprise or excusable neglect . . . ."
It is clear under sec. 269.46 (1), Stats., that a court does not have the authority to open or vacate a judgment on the grounds enumerated in the statute if more than one year has passed after notice of the judgment to the party seeking relief. It is also clear that the year does not commence running until the movant has notice or knowledge of the judgment.
Thorp Small Business Investment Corp. v. Gass (1964), 24 Wis.2d 279, 128 N.W.2d 395.
Tuszkiewicz v. Lepins (1968), 41 Wis.2d 102, 163 N.W.2d 188.
The appellant contends that the trial court was without jurisdiction to set aside the judgment because more than one year had elapsed since respondent had received notice of the judgment. Appellant argues that respondent had received notice of the judgment on October 9, 1967, during his interview with Mr. Love, and therefore the order to show cause dated January 24, 1969, and order entered on April 24, 1969, were not timely under the provisions of the statute. Respondent contends that he did not have notice of the judgment until January 15, 1969, after the jail commitment for failure to comply with the judgment had issued, and therefore his action to set aside the judgment was well within the statutory period.
There can be no doubt that the trial court recognized the crucial issue was a factual determination of when the defendant Williams had knowledge of the June, 1967, judgment. At the commencement of the evidentiary hearing on the motion, Judge MINOR stated, "Well, the question of fact would be whether or not he received notice."
A hearing ensued (on February 3 and 4, 1969) in which the defendant, Williams, and the trustee, Love, were examined extensively as to the nature of the conversation between them and whether Love informed Williams of the judgment.
Unfortunately, the court did not make a finding on the vital question of whether Williams had notice for more than a year prior to the order opening the judgment.
The parties in their briefs and arguments seem to conclude the trial court made an implied finding that Williams did not have notice of the judgment until he was served with the commitment order, and that the issue now is whether that finding is against the great weight and clear preponderance of the evidence.
The principal purpose of the February, 1969, hearing was to determine when Williams received notice of the judgment. The testimony of Williams clearly supports a finding that he did not have notice until January, 1969. The testimony of Love clearly supports a finding that Williams had notice of the judgment on October 9, 1967.
While it is not at issue, we would have no difficulty in concluding that Williams has established excusable neglect as contemplated by the statute because of his age, his attorney's resignation, his incarceration and lack of notice of the hearing, and that the findings the trial court did make support this conclusion.
Where there is no dispute in the evidence or the evidence clearly preponderates in favor of one side, this court can probably imply a finding as to a crucial fact but not in a case, such as this, where there is a sharp and irreconcilable conflict in the evidence. Our review of the evidence convinces us that a finding either way would not be against the great weight and clear preponderance of the evidence. Therefore a finding of fact must be made by the trial court based upon its evaluation of credibility of the witnesses and the weight of the evidence.
Walber v. Walber (1968), 40 Wis.2d 313, 319, 161 N.W.2d 898; Jacobs v. Jacobs (1969), 42 Wis.2d 507, 512, 167 N.W.2d 238; Lacey v. Lacey (1970), 45 Wis.2d 378, 173 N.W.2d 142.
Because an essential or crucial factual finding has not been made, and because the evidence concerning it is in dispute, we believe it is necessary that the record be remanded to the trial court to make such finding. Upon remand Judge MINOR should reconsider the evidence and his recollection of the witnesses on the hearing of February 3 and 4, 1969, and make a finding as to whether the order setting aside the judgment was made within a year after Williams had notice of the judgment.
If Judge MINOR finds that the defendant Williams did have notice of the judgment of June 6, 1967, entered June 19, 1967, for more than one year prior to the order setting aside the judgment, the order setting aside the judgment and the judgment of January 26, 1970, shall be vacated and set aside and the judgment of June 6, 2967, entered June 19, 1967, shall be reinstated.
If Judge MINOR finds that the defendant Williams did not have notice of the judgment of June 6, 1967, entered June 19, 1967, for more than one year prior to the order setting aside the judgment, the judgment of January 26, 1970, shall be affirmed.
The defendant Williams further contends that the trial court had authority to reopen and set aside the judgment of June, 1967, under sec. 52.38 (1), Stats. We conclude this statute is not authority to set aside a paternity judgment. The statute was intended to and does provide for continuing jurisdiction to revise or alter the support money payments for the benefit of the child and not for the purpose of permitting a rechallenge to the finding of paternity.
By the Court. — The cause is remanded to the trial court for further proceedings consistent with this opinion. No appeal costs to be taxed.