Lewis v. Lewis , 252 Wis. 576 ( 1948 )

Action for divorce begun in February, 1947, by Leon Lewis against Ida Lewis. Judgment entered September 19, 1947, granting the divorce and awarding custody and control of the couple's two minor children to the plaintiff. From that part of the judgment awarding custody and control to the father, defendant appeals.

The parties to this action were married December 19, 1937. They have two children, a son nine years of age and a daughter five. The family lived on a farm in Juneau county. Leon Lewis entered military service in January, 1944. While he was in service, farm machinery, livestock, and other personal property of the parties were sold at auction. Mrs. Lewis received the proceeds therefrom. She and the children remained on the farm, and her father, Mr. Steffen, came to live with them. Mrs. Lewis received a government allotment of $100 per month plus other monthly sums from her husband while he was in service, and in addition she had the income from the farm during that time.

While plaintiff was in military service defendant wrote him asking for a divorce. He refused, and upon his discharge from service in September, 1946, he returned to the farm home. He had available to him his mustering-out pay and ten weeks' unemployment compensation. Defendant controlled the money already referred to, accumulated during the war.

The testimony is, and the trial court found, that the defendant became infatuated with one Hastings while her husband was in the armed forces, and she was frequently in his company at divers times and places before and after her husband's return.

Shortly after plaintiff returned from service, the defendant began a divorce action in which the plaintiff in this action defended but did not counterclaim. The trial court heard that case on December 13, 1946, and found that Mr. Lewis had not treated Mrs. Lewis in a cruel and inhuman manner as alleged; that Mrs. Lewis had become infatuated with other men and was not a fit and proper person to have custody of the children. Judgment in that action, not entered until January 24, 1947, dismissed the action and awarded custody of the children to the father.

In the meantime Mrs. Lewis left the farm home immediately after the trial. She went back on December 21st and took the children away. On December 30th, accompanied by the children and a deputy sheriff, she visited the farm intending to get clothing belonging to her and the children. After the deputy learned that Mrs. Lewis had not been awarded custody in the divorce action, he left the children at the farm. Mrs. Lewis left the farm with the deputy.

On January 4, 1947, Mr. Lewis took the children into town and left them at a movie with their cousin. Mrs. Lewis went to the theater and took the children away with her, without Mr. Lewis' knowledge. She took them to Beloit, where they stayed overnight. The next day she took them to East Troy, where she has since resided. Hastings was living in East Troy at that time. Mrs. Lewis testified that she had only heard a rumor that Hastings was at East Troy and that she decided to stay there with the children because she got employment in a restaurant. She and the children lived in the hotel, where they also got their meals, and the children attended school.

On January 18, 1947, when Mr. Lewis was in town he received a telephone call telling him to meet the caller at three o'clock. No one met Mr. Lewis at the appointed time and place. When he returned to the farm he found that the house had been entered and that his wife's and children's clothing and other property were missing. Mrs. Lewis admitted entering the home on that date. It was shortly after that incident that Mr. Lewis began this action for divorce. He did not know the whereabouts of his wife. Service was by publication. Mrs. Lewis, however, appeared by attorney and filed an answer and counterclaim. After having searched elsewhere, Mr. Lewis first learned when Mrs. Lewis was examined adversely on May 16, 1947, that she and the children were in East Troy.

Mrs. Lewis had held several jobs in East Troy, but because of "doctor's orders" she did not work during the summer of 1947. On April 5, 1947, she had moved from the hotel into a cottage on nearby Lake Beulah, next door to a brother of Hastings.

Efforts to effect a reconciliation between the parties failed when Mrs. Lewis refused to return to Mr. Lewis. This divorce action was tried on September 17, 1947. At that time Mr. Lewis was not farming his own farm but was working on another several miles away. He was able to be home only week ends, but he testified this was just a temporary arrangement. Mrs. Lewis' sister-in-law, Mrs. Althea Steffen, was on the farm caring for the Lewis children, along with three other children. The court, when this case was tried, considered the record in the previous divorce action brought by the wife in the same court, that record having been offered in evidence. The court in this case granted the divorce to the plaintiff, Mr. Lewis, and again awarded custody of the children to him. The appellant is asking a reversal of that portion of the judgment which awards to respondent the care and custody of the children of the parties. These propositions are advanced: That the record in the earlier divorce action should not have been admitted in this case; that appellant is a fit and proper person to have the care, custody, and control of the children; that preference should be given to the mother in the matter of care and custody of minor children; and that the best interests of the children will not be served by leaving them in the care of respondent.

There was no error in giving consideration to the evidence adduced at the previous divorce trial. Evidence of the mother's misconduct and unfitness, which was had in the previous trial, warranted granting the care and custody of the children to the father. On the mother's application for change of custody from the father to her in this action, that former record was proper matter for scrutiny. The facts of this case are similar to those of Wall v. Wall (1948), ante p. 339,31 N.W.2d 527, and the holding of that case is controlling here. If in the first proceeding between these parties there had been an adjudication that the mother was a fit and proper person to have the custody of the children, that adjudication would have been res adjudicata on that subject and a bar to the admission in these later proceedings of evidence as to events preceding the first adjudication. However, the rule applied in the Wall Case permits the record of the first proceeding being brought in in this action since there was no prior adjudication that the mother was a fit and proper person to have the custody.

The contention that the appellant is a fit and proper person to have the care, custody, and control of the children is not .supported by the evidence. The testimony is, and the trial court found that the appellant's conduct due to her infatuation with one Hastings, beginning while her husband was with the armed forces and continuing after his return, showed so great a disregard of proprieties as to warrant placing the children in the care of respondent. Her misconduct was and is such as to bring the judgment entered below. Earnest efforts have been made to induce appellant to give up an improper, if not criminal, association, but all to no avail. Such a lack of willingness to give any consideration to conventionalities as is here displayed required the placing of the children in some Other environment than that which appellant would create. It may be, as, the trial court observed, she is weak, "apparently never appreciating the gravity of the situation," but her conduct creates a situation carrying improper influences of such a nature as to be contrary to the best interests of the children.

The proposition that preference should be given to the mother in the matter of the custody of children does not apply in a case like this where the mother has been found to be unfit. Wall v. Wall, supra. The contention that the best interests of the children will not be served by leaving them in the care of respondent are so effectually overcome by the evidence that the result reached below must be sustained.

By the Court. — Judgment affirmed.