State Ex Rel. Wall v. Sovinski , 234 Wis. 336 ( 1940 )

The order assailed was made May 15, 1939, in an illegitimacy action, commenced on March 20, 1933. On March 20, 1933, Julia Wall, a female, hereinafter called the "plaintiff," who had theretofore been delivered of an illegitimate child, and the defendant, Leo Sovinski, pursuant to the provisions of sec. 166.07, Stats., appeared in the civil court of Milwaukee county, submitted to its jurisdiction and entered into a written agreement which provided:

"It is agreed that the complainant Julia Wall on the 3d day of March, 1931, gave birth to a male child, since named Robert Lee, that the same is now alive and being cared for by the mother; that said complainant is not now and has never been married, and that said defendant Leo Sovinski admits that he is the father of said illegitimate child delivered of said complainant on the date aforesaid. Parties contemplate marriage, therefore upon agreement of both parties no provision for the support of said child is made herein, and matter of said provision is adjourned until six months after date hereof."

On the same day, and upon motion of an assistant district attorney of Milwaukee county, it was found and adjudged:

"1. That the complainant Julia Wall on the 3d day of March, 1931, gave birth to a male child, since named Robert Lee; that the same is now alive and being cared for by the mother; that said complainant is not now and has never been married; and that said defendant Leo A. Sovinski is the father of said illegitimate child delivered of said complainant on the date aforesaid. Parties contemplate marriage, therefore upon agreement of both parties, no provision for the support of said child is made herein and matter of said provision is adjourned until six month(s) after date hereof.

"Dated this 20th day of March, 1933.

"By the court,
"A. J. HEDDING,
"Judge of the civil court of
Milwaukee county, Wisconsin."

Thereafter, on May 27, 1933, upon the affidavit of the plaintiff, in which it was recited that she was unable to provide for the said child and that it would be necessary for her to receive some aid, an order was issued by JOSEPH E. CORDES, civil court judge, which required the defendant to show cause why he should not pay the sum of $3 per week for the support and maintenance of said child. Upon the return day, the plaintiff appeared by the assistant district attorney and the defendant appeared by his attorney. The case was transferred to that branch of the civil court over which Judge JENNINGS presided. Thereafter, the parties appeared in Judge JENNINGS' court. The plaintiff then moved to amend her affidavit and the order by inserting therein $5 instead of $3 per week. The plaintiff and the defendant both testified. The court thereupon made and entered the following order:

"It is ordered that the defendant, Leo Sovinski, pay the sum of fourteen ($14) dollars per month on the first day of each month, beginning with the 1st day of July, 1933, until the child shall arrive at the age of sixteen years, as and for the future support and maintenance of said child, and that all of such payments for future support be made to the superintendent of the poor of Milwaukee county, and by him to the complainant, Julia Wall, in instalments of $14 per month, as and for the child's support.

"Dated this 5th day of June, A.D. 1933.

"By the court,
"F. JENNINGS, Judge."

On August 27, 1935, upon the affidavit of the plaintiff, and on motion of the assistant district attorney, Civil Court Judge CUMMINGS ordered the defendant to show cause before him on September 7, 1935, why the allowance made for the support of the child of the parties should not be increased in accordance with the statute in such case made and provided, and why the defendant should not be ordered to pay the same as and for the support of the child. Upon the return day, the motion was continued to September 14, 1935. Upon the adjourned day, the motion was heard by RUNGE, civil court judge. The defendant offered to make a lump-sum settlement of $400 to be paid at the rate of $25 each month. The court approved of the settlement and directed that an order be drawn accordingly. No order was ever drawn. The defendant, however, complied with the directions of the court and fully paid the $400. On November 30, 1938, Civil Court Judge GAUSEWITZ issued an order requiring the defendant to show cause why the order dated September 14, 1935, should not be vacated and set aside and why the order entered on June 5, 1933, should not be reinstated. On December 2, 1938, the return day, the motion was adjourned to December 16, 1938. Several other adjournments were had. The matter finally came on for hearing before Judge RUNGE on January 6, 1939. The defendant moved that judgment be entered in accordance with the lump-sum settlement made on September 14, 1935, nuncpro tunc. On May 15, 1939, Judge RUNGE entered an order in which he found that the order theretofore made on September 14, 1935, was without authority or effect for the reason that the court was without jurisdiction to make it; that the order made on June "3," 1933, was in full force and effect and that the order of September 14, 1935 "be and hereby is vacated and set aside, and that the sum of $400 paid by defendant as a settlement in full be applied as payments made in accordance with the said order of June 3, 1933."

From that order, and the whole thereof, the defendant appealed. The sole question for decision is whether the civil court had authority to vacate and set aside the order of September 14, 1935, which approved the $400 lump-sum settlement.

All of the proceedings purportedly were had in pursuance of the provisions of ch. 166, Stats.

Assuming, but not deciding, that the original judgment entered March 20, 1933, was valid and that it was amended by the order of June 5, 1933 (which judgment and order are not before us), we reach the conclusion from the record before us that the order of September 14, 1935, entered by Judge RUNGE, was null and void because he had no jurisdiction to make it. In vacating and setting aside the order of September 14, 1935, the trial court concluded that the judgment, entered on March 20, 1933, as amended by the order of June 5, 1933, was valid, and that since it provided for the payment of a specified monthly stun until the child was sixteen years of age, the court had no continuing jurisdiction to modify that judgment and to adjudge or order a lump-sum settlement. In so concluding, the civil court in our opinion was right. Sec. 166.11, Stats., clearly provides what a judgment in an illegitimacy proceeding shall include. That section, in part, provides:

"If the accused . . . shall have entered into, a settlement agreement, he shall be adjudged to be the father of such child, unless paternity shall have been denied in such settlement agreement, and shall be ordered to pay to the mother or town or county all expenses incurred by them for lying-in and attendance of the mother during the last six months of pregnancy, and also for the care and support of the child . . . from the time of its birth until the date of the entry of judgment, and to pay to the county the costs of the, action, and to stand chargeable for the future support of the child until it shall attain the age of sixteen years. Payments for such future support shall be directed to be made in either of the two following methods: (a) Payment of a specified monthly sum until the child is sixteen years of age; (b) payment of a specified lump sum within sixty days after entry of judgment or in specified monthly instalments subject to the condition that upon default in any instalment the entire amount shall become due and payable."

Sec. 166.12, Stats., provides:

"Continuing jurisdiction. Whenever the judgment for the future support of the child has not been satisfied by payment of the lump sum directed to be made, the court shall have continuing jurisdiction over proceedings brought to compel support and to increase or decrease the amount thereof until the judgment of the court has been completely satisfied. Nothing in this section shall in any way be considered a derogation of section 351.30."

Illegitimacy actions are purely statutory. Courts have only such jurisdiction in illegitimacy actions as is conferred by the statute. Francken v. State, 190 Wis. 424,209 N.W. 766; State ex rel. Lang v. Civil Court, 228 Wis. 411, 417,280 N.W. 347.

There is, in ch. 166, Stats., no provision conferring continuing jurisdiction upon a court having jurisdiction of illegitimacy actions other than that of sec. 166.12, and it is clear that that section confers no continuing jurisdiction over such proceedings except where the judgment provides for the payment of a lump sum. In State ex rel. Lang v.Civil Court, supra, that statute was construed. It was there said:

"Although sec. 166.12, Stats., provides that, — ``Whenever the judgment for the future support of the child has not been satisfied by the payment of the lump sum directed to be made, the court shall have continuing jurisdiction over proceedings brought to compel support and to increase or decrease the amount thereof until the judgment of the court has been completely satisfied — it must be noted that its provisions are applicable only when there has been a valid adjudication for the payment of a lump sum."

Assuming, but not deciding, that the original judgment and the order of March 20, 1933, were void, then the order of September 14, 1935 (considered either as a judgment or an order), was also void because no settlement agreement such as sec. 166.11, Stats., requires was entered into by the parties. There is no such written agreement in the record, no reference to any such agreement, no reference to any written or oral stipulation, and no record of any testimony tending to show that the parties agreed to a lump-sum settlement. The minutes of the clerk do not even show that the plaintiff was present in court at the time the lump-sum settlement was approved by the court. The clerk's minutes are as follows:

Sept. 14.  At 9:00 A. M. case, called in Branch No. 2.
Plaintiff appears by the Asst. Dist. Atty.
Defendant appears by his attorney.
Order to show cause argued.
Defendant offers to make a lump-sum settlement
of $400, said sum to be paid at the rate of $25.
The court approves settlement and directs that
order be drawn accordingly.

So in either of the assumed situations, the order of September 14, 1935, was void and of no effect because the court lacked jurisdiction to make it.

A judgment or order which is void may be expunged by a court at any time. Such right to expunge a void order or judgment is not limited by statutory requirements for reopening, appealing from, or modifying orders or judgments.AEtna Life Ins. Co. v. McCormick, 20 Wis. *265; Quaw v.Lameraux, 36 Wis. 626; Parsons v. Balson, 129 Wis. 311,109 N.W. 136; Sackett v. Price County, 130 Wis. 637,110 N.W. 821; Godfrey v. Wright, 151 Wis. 372,139 N.W. 193; Spencer v. Osberg, 152 Wis. 399, 140 N.W. 67; Fischbeckv. Mielenz, 162 Wis. 12, 154 N.W. 701; Estate ofCudahy, 196 Wis. 260, 219 N.W. 203.

In Godfrey v. Wright, supra, it is said (p. 374):

"The rule as regards setting aside a judgment for mere error or irregularity does not militate against judicial power to expunge a void judgment from the record. . . . A judgment which is a nullity may be so expunged on motion at any time."

In Estate of Cudahy, supra, it is said (p. 263):

"A long line of cases hold that the county court, notwithstanding any statutory provision to that effect, or in the absence thereof, may at any time open up its judgments or orders when they were procured by fraud or when they were rendered without jurisdiction."

The order of September 14, 1935, being a void order, the court was not without jurisdiction to vacate it and set it aside by its order dated May 15, 1939.

By the Court. — Order affirmed.