Romanowski v. Romanowski , 245 Wis. 199 ( 1944 )

^* Motion for rehearing denied, without costs, on June 6, 1944. On September 8, 1941, Myron Romanowski, plaintiff, brought action against Frances Romanowski, defendant, for a divorce. On December 15, 1941, judgment of divorce was entered granting plaintiff a divorce and giving defendant the custody of two children found by the court to have been born to the parties. Plaintiff was ordered to pay certain money for the support of the eider of these children and none for the support of the younger.

On January 13, 1943, there was served upon plaintiff an order to show cause why he should not pay support money for the younger child. On September 3, 1943, the trial court entered an order requiring plaintiff to pay the sum of $20 per month to support said child. Plaintiff appeals from this order. The material facts will be stated in the opinion. The divorce action between these parties was set down as a default, defendant having filed no answer, and was so tried on December 4, 1941. The ground of divorce was voluntary separation in excess of five years. The complaint alleged the birth of one child to the parties two weeks prior to the marriage.

From the evidence adduced upon the default hearing, it appears that on March 31, 1939, defendant gave birth to a second child, Bernadine. Plaintiff had never contributed, nor had he been asked to contribute, to the expense of confinement or support of this child. The parties were married on February 18, 1928, separated in March of the same year, and had lived apart ever since. Plaintiff was asked by counsel whether he had marital relations with defendant during this period, but the court did not permit him to answer. Later defendant was asked whether some proceedings had not been started to establish that a man other than plaintiff was the father of the second child. She at first answered this question "Yes" and then changed her testimony and said that no such proceedings had been started. There were some admonitions by the trial court as to the sort of testimony necessary to rebut the presumption of legitimacy, but the above summary represents all the evidence in any way bearing upon the parentage of Bernadine. The findings of the trial court were to the effect that both girls were children of plaintiff and the judgment so adjudicates.

Upon this hearing defendant testified that $6 per week was insufficient allowance to support both children; that she lived with her parents and was supported by them; that her mother was of advanced years and unable to continue contributing to her support but that her father was working. The judgment contained an allowance of $6 a week for the support of the eider child but none for the support of the younger child. The custody of both children was given to defendant.

Some two years later these proceedings to obtain allowance for the support of the younger child were commenced by defendant and hearings were held on February 19 and March 12, 1943. Defendant's testimony was to the effect that she was presently unable to support the second child without an allowance from plaintiff. She gave as a reason that since January, 1943, her father had been laid up at home with blood poisoning and that about February 1, 1943, her mother had sustained a heart attack; that she herself had commenced working at fifty-five cents an hour in a factory, but had as yet received no check; that the child had need of clothing and other supplies. It also appeared that plaintiff's wages had increased by about $7.50 a week in the interval.

Upon the basis of this testimony the trial court ordered plaintiff to pay $20 a month to defendant for the support of the child, Bernadine. Plaintiff asserts that defendant, by not asking for support money at the time of the original divorce, is now foreclosed from doing so, (1) because the judgment of divorce has become final, and (2) because, in any case, she has waived her rights to such support money. A considerable portion of plaintiff's brief is taken up with a discussion of the presumption of legitimacy. We are clear enough that this is of no materiality here. Its only purpose could be to relitigate the question whether plaintiff is the father of the child, Bernadine, and this plaintiff may not do. In the divorce action this was found as a fact. The judgment so adjudicated. This issue is finally and fully settled as between these parties and is beyond the reach of any new contentions, whether the conclusions of the trial court were erroneous or not, although as we read the evidence upon the original divorce hearing, we discover nothing to rebut the presumption of legitimacy. However, even if the court was in error in its findings and adjudication, the judgment is unappealed from and beyond the possibility of review or revision.

Plaintiff's contention, that the omission in the divorce judgment of provisions for the support of Bernadine is a final action in that respect, cannot be sustained. The divorce terminated only the relationship of husband and wife. It did not affect in any manner the parental relations or duties of plaintiff. In Zilley v. Dunwiddie, 98 Wis. 428, 432,74 N.W. 126, this court said:

"Hence the father's duty to maintain them after the divorce, where there is no decree of the court relating thereto, especially if their custody is not taken from him, remains as before."

See also, in this connection, Szumski v. Szumski,223 Wis. 500, 270 N. W, 926; Lewis v. Lewis, 201 Wis. 343,230 N.W. 77.

In addition to the foregoing, sec. 247.25, Stats., provides:

"The court may from time to time afterwards, on the petition of either of the parties, revise and alter such judgment concerning the care, custody, maintenance and education of the children, or any of them, and make a new judgment concerning the same as the circumstances of the parents and the benefit of the children shall require."

Sec. 247.32, Stats., provides:

"After a judgment providing . . . allowance for . . . the court may, from time to time, on the petition of either of the parties, revise and alter such judgment respecting the amount of such . . . . allowance and the payment thereof, . . . and . . . make any judgment respecting any of the said matters which such court might have made in the original action. . . ."

The power of the court to act is clear enough under these sections. In matters relating to alimony and custody, however, this court has held that in the absence of a substantial change in the premises on which the original determination was made, a modification or revision is an abuse of discretion.Littig v. Littig, 229 Wis. 430, 282 N.W. 547 (having to do with alimony), and Application of Rattel, 244 Wis. 261, 12 N.W.2d 135 (having to do with custody). There is no Wisconsin authority dealing with the question whether a change in allowance for the support of a minor child in the absence of a change in condition of the parties is an abuse of discretion. Other courts intimate pretty strongly that there must be an alteration of circumstances to warrant a modification. See Snyder v. Snyder, 219 Cal. 80, 25 P.2d 403;Gould v. Gould, 226 Mich. 340, 197 N.W. 505; Williamsv. Williams, 127 Miss. 627, 90 So. 330.

While it can be argued with a great deal of force that a trial court should be allowed to modify any allowance presently found to be insufficient, even though this involves recognition that the original judgment was inadequate, we do not need to determine this point. The circumstances of the grandmother's heart attack and the grandfather's illness, together with testimony which the trial court could believe that the necessities of the child were not being met, amply warranted the trial court in making an allowance which evidently was not much insisted upon at the original divorce hearing and the necessity for which did not there strongly appear. We conclude, therefore, that the order of the trial court must be affirmed.

By the Court. — Order affirmed.