Opinion
April 29, 1963 —
June 4, 1963.
APPEAL from an order of the circuit court for Waushara county: ROBERT H. GOLLMAR, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Carlton Roffa of Milwaukee.
For the respondent there was a brief by Corrine Lind of Coloma, attorney, and Callahan Arnold of Columbus of counsel, and oral argument by Carroll B. Callahan.
An action for divorce commenced on January 9, 1957, by Betty Graichen, the wife, against Richard E. Graichen, the husband, in the circuit court for Waushara county on the ground of cruel and inhuman treatment. The prayer for relief asks for judgment of absolute divorce, for full and final property division in lieu of alimony, custody and control of the issue of said marriage, being one daughter Gay, born August 1, 1948, and for support money for the child.
An affidavit of default was subscribed and sworn to on February 6, 1957, and filed the same day with the clerk of the circuit court for Waushara county.
A written stipulation was entered into between the parties which recited the terms and conditions of the property settlement, and with respect to the custody of Gay, recited the following:
"That if in the judgment of the court it will be for the best interests of the child that the plaintiff have her care, custody and control, and shall so determine, then the defendant shall pay to the clerk of the circuit court for Waushara county, Wisconsin, the sum of $20 on the first of each and every calendar month, beginning on the first of the month following the entry of the decree herein, for the support and maintenance of said child, and until the further order of the court.
"It is further agreed that the defendant shall have the right to visit said child, upon reasonable notice to the plaintiff and during reasonable hours, at least once a month; and that the defendant may have said child visit him at his home in Coloma, Wisconsin, during school vacations of one week or more, for one-half of such period, and for not more than one month during the summer vacation."
The trial court granted judgment to the plaintiff on the grounds of cruel and inhuman treatment and approved the stipulation. Judgment was entered on February 7, 1957.
On June 14, 1962, a petition for amendment of judgment and motion for amendment of judgment was served upon the family court commissioner and on June 15, 1962, served upon the attorney for Betty Graichen. The petition asks to amend that part of the judgment relating to the care, custody, and control of the minor child of the parties.
A counterpetition on behalf of the plaintiff, Betty Graichen, was filed in which she requests the trial court to deny the petition of Richard Graichen for change of the care, custody, and control of the minor child of the parties, Gay, together with a request for an increase in the support and maintenance obligations of the defendant, and for reimbursement of medical expenditures incurred by the plaintiff on behalf of the minor child out of her own separate and individual estate.
The counterpetition recited that Betty Graichen was found to be a fit and proper person to have the custody of Gay by the trial court on February 7, 1957. It further alleges that the best interest of Gay would be served by Gay's custody continuing to lodge with her natural mother, and sets forth the following reasons:
"That in truth and in fact, the defendant is emotionally unfit to have the care, custody and control of the minor child of the parties, Gay Graichen, and has ulterior motives in seeking the relief prayed for in his petition; some of the reasons for his ulterior motives are that the defendant now has a substantial income from a lake resort which he owns and operates, as a sole proprietor, at Coloma, Wisconsin, doing business as Pleasant Lake Resort, wherein he desires to employ the said minor child of the parties herein as a waitress or clerk therein, contrary to the child labor laws of the state of Wisconsin. That further, the defendant was requested by this plaintiff to voluntarily agree and stipulate to increase his monthly support payment from $20 per month to $70 per month, and to reimburse the plaintiff, in part, for past medical expenditures incurred by her out of her own separate and individual estate for the benefit of the minor child of the parties hereto.
"That further, the defendant is unfit to have the care, custody and control of the minor child of the parties hereto, as evidenced by his conduct in the month of January, 1962, wherein he ejected the said minor child from his residence at Coloma, Wisconsin, because of the hostility of this defendant's second wife to this minor child.
"That contrary to the defendant's petition, the best interests of the minor child of the parties hereto would be served by her custody, care and maintenance remaining in the plaintiff because of her confidence in her natural mother and because of the continuity of schooling and friendships provided by the plaintiff herein.
"That at the date of entry of judgment in the above entitled action, the defendant herein had no income other than that of a postmaster. Since the entry of the divorce judgment herein, the defendant has acquired a lake resort, heretofore described, so that his financial condition has been substantially improved.
"That it has become increasingly more expensive to meet the ordinary and daily demands of the minor child of the plaintiff herein for school expenses. That in the fall of this year, the minor child of the parties hereto will enter the Whitefish Bay High School, near Milwaukee, Wisconsin, and will require more expenses to maintain her in high school.
"That further, this plaintiff has expended a sum in excess of $500 for dental, medical and other expenses on behalf of the minor child of the parties hereto, out of her own and separate and individual estate.
"That, for the reasons heretofore set forth, there has been a substantial change to the better, in the economic circumstances and conditions of the defendant hereto since the date of the entry of judgment herein, so that the existing support obligations of the defendant herein is inequitable, unjust, and should be increased."
Defendant Richard E. Graichen filed an answer to the counterpetition for modification of the judgment, in which he sets forth the following:
"Denies that he is emotionally unfit to have the care, custody and control of Gay Graichen, the minor child of the parties or that he has ulterior motives in seeking the relief prayed for in his petition; that in truth and in fact, Gay Graichen, the minor child of the parties has continuously resided with this defendant and in his home since his remarriage from the date the above mentioned divorce judgment was granted to the 20th day of January, 1962, during all of which time the plaintiff made little or no effort to see the minor child of the parties; that he did not at said time eject the said child from his residence but because of the continuous interference by plaintiff the said child decided to try to live with the plaintiff.
"Admits that he recently purchased a lake resort which he has been operating for a period of about two months but denies that he has ever intended to have said minor child work therein as a waitress or a clerk contrary to the child labor laws of the state of Wisconsin.
"Denies that plaintiff requested defendant to voluntarily agree and stipulate to increase his monthly support payment from $20 per month to $70 per month but alleges that of his own free will he offered to increase said monthly payments to $50 per month with which the plaintiff was in full accord and agreement and which said amount the plaintiff has accepted from the 20th day of March, 1962.
"That the best interests of the minor child of the parties hereto would best be served by her remaining in the home of this defendant because the said child now is left alone during the entire day while the plaintiff is working and is frequently left alone without supervision in the evenings; that the said child has repeatedly asked this defendant to take her back into his home; that the plaintiff continuously argues with the minor child and on several occasions has told the minor child that she did not wish to see her again; that the constant friction caused by the behavior of the plaintiff has upset the child to such a degree that this disturbance has been reflected in her school work; that plaintiff's constant bickering has created a situation which will make it very difficult for the child to live with the plaintiff."
The family court commissioner filed on July 24, 1962, his written recommendation, which states as follows:
"The plaintiff, Betty Graichen, is approximately forty years of age. The defendant, Richard E. Graichen will be forty four years of age on the 24th of November, 1962. They were married in 1941, at Coloma, Wisconsin, that being the first marriage of each. One child was born of this marriage, Gay Graichen, on August 1, 1948. They were awarded a divorce on February 7, 1957. Betty Graichen was awarded custody of the child; was Democratic National Committee Woman, and at that time was emersed in politics; had agreement with defendant that the defendant would take care of the child, although awarded to the plaintiff. The child, Gay, resided with her father from the date of the divorce `February 7, 1957,' continuously until January 20th, 1962. The defendant, June 7, 1958 married Joyce Leach, a divorcee, who had two children, Venden who will be fourteen August 2nd, (born 1948) and Caroline who will be twelve on October 12th, (born 1950). Two children have been born of this marriage. Heidi born July 7, 1960, and Richard, August 12, 1961. The child, Gay, states that she went to live with her mother January 20th of this year because of the constant disturbance created by her mother and the threats that she would force such action through the court as she had been awarded custody.
"Child states that she was very unhappy living with her mother who was away most of the time; her mother constantly quarreled with her boyfriend. Then on occasions, told her (Gay), `she never wanted to see her again.'
"It is my recommendation that the custody of the minor child, Gay Graichen, be granted to her father, Richard E. Graichen."
A hearing was held on June 26, 1962, and adjourned to July 24, 1962, and further testimony taken July 24, 30, and 31, 1962.
The trial court filed its findings of fact and conclusions of law on August 23, 1962, in which it found that to advance the welfare and to serve the best interest of the minor child, Gay, the care, custody, and control of said child should be awarded to the defendant, Richard E. Graichen, and that the plaintiff should be granted the same visitation rights as those previously enjoyed by the defendant.
The order modifying the judgment was signed on August 22, 1962. It is from this order that the plaintiff appeals.
There are two issues on this appeal: (1) Whether the record will sustain a finding of a substantial change in circumstances since the original adjudication of custody, and (2) whether oral examination of the minor child, Gay Graichen, in chambers by the court, constitutes prejudicial error where such interview, though not objected to by counsel for plaintiff, was made a part of the record.
The general rule in change-of-custody cases is that a substantial change in circumstances must be established in order to warrant a change in the custody of children. State ex rel. Hannon v. Eisler (1955), 270 Wis. 469, 475, 71 N.W.2d 376.
The record and testimony reveal that Betty Graichen was awarded Gay's custody in the judgment of divorce dated February 7, 1957. Gay, on the date of the divorce judgment, was eight and one-half years of age. However, Richard Graichen took actual custody of Gay on the date of judgment of divorce. They lived in the home of his parents at Coloma, Wisconsin, until June of 1958, when Richard remarried.
Gay then lived with Richard, his second wife, and her two children by a previous marriage in their new home at Coloma, Wisconsin. Two additional children were born into the family during the period Gay lived with them.
On January 20, 1962, Gay went to Whitefish Bay, Wisconsin, to live with her mother and remained there until the instant proceedings were first heard on June 26, 1962. At this first hearing the court permitted Gay to return to Coloma for a period of thirty days on the condition that she would stay out of a bar which was a part of the resort Richard, her father, had recently purchased. When the hearings were resumed on July 24, 1962, Richard had sold the resort in order to eliminate any objection to the propriety of raising a teen-age girl at such an establishment.
The record is voluminous and it would not serve any good purpose to review it in total. The findings of fact relevant to this issue are, briefly, that Richard and Joyce Graichen, his second wife, are proper and fit persons and that their home is a fit and proper place for raising Gay; that Richard disposed of a very good resort business because of his concern over the welfare of his daughter; that Richard did not alienate Gay from her natural mother Betty, but that such alienation was the result of the mother's lack of love and affection toward the daughter; that Betty Graichen has not offered to maintain a home for Gay since the divorce and that the home presently maintained by her is not a fit and proper place in which to raise Gay.
The trial court made an oral decision from the bench. The following are excerpts of the oral decision and opinion contained in the record:
". . . the father . . . has taken a real interest in all of his children, . . . he has been an outstanding citizen in his community, taking part in the best civic and church activities there.
"The court was very impressed by the outstanding people . . . summer residents . . . came into this court and voluntarily spoke in behalf of Mr. Graichen's operation of that resort.
". . . the court in June, . . . took . . . a dim view that he [Richard] sold beer to teenagers . . . the father was sufficiently concerned about the welfare of his daughter so that he made immediate arrangements to dispose of this business although it's a very lucrative business and although his income is not very large for a man who has seven people dependent upon him for support, . . .
". . . Joyce Graichen . . . has demonstrated to me that she's a woman of good character who has done a good job of what must be often a very difficult thing in trying to raise three sets of children, . . .
". . . Betty Graichen . . . a well intentioned woman who unfortunately does not have a good basic understanding of the more important things of life. . . .
". . . the child was alienated from her mother by the acts of the mother. . . .
". . . the reasons given by the mother for not taking the girl are [not] satisfactory. . . .
". . . the court is giving consideration to the two homes. In the one case we have a home in which a high degree of family feeling seems to have developed — that is the home of Richard Graichen — a good feeling, it's a rounded home, it has a father and a mother, and . . . brothers and sisters. On the other side we have an apartment in Whitefish Bay which the girl has to occupy a room with her mother, and the court will say I am somewhat shocked by the apparently relaxed attitude that the mother has toward her friend, Mr. Poyer. I have no quarrel with Mr. Poyer, but the mother permitting him to remain there, under any circumstances, overnight, the court can't accept that as the way to raise a daughter.
"And certainly the mother's activities in this almost childish attitude of taking this watch that had been given to this girl by her grandparents and taking it away from her in the moment of childish anger does not establish to this court that Betty Graichen is capable of handling the problems that she would face if she had her daughter with her."
The trial court's oral opinion and findings of fact are supported by the record.
The trial court is vested with a large discretion in deter mining what is for the children's best welfare and to whom the custody of the children shall be awarded. In reviewing custody cases, this court relies heavily upon the determination by the trial court. Except where there is a clear abuse of discretion, the trial court's order will prevail. State ex rel. Hannon v. Eisler, supra.
The fact that Richard remarried and is able to provide a normal home, coupled with the other circumstances repealed by the record in this action, is sufficient to constitute the necessary change of circumstances to grant a change of custody. See Anno. 43 A.L.R.2d 363, 383, Custody of Child — Remarriage — Effect.
As to the second issue, counsel for Betty contends on this appeal that the reading into the record by the trial court of its conclusions and observations of its interview with Gay was error.
In custody cases it is inadvisable to fix rules which are inflexible. Each case must be considered in the light of all of the facts and circumstances as they appear in the record. Dodge v. Dodge (1955), 268 Wis. 441, 444, 67 N.W.2d 878. In the instant action at the adjourned hearing on July 31, 1962, when Gay was interviewed by the trial court in chambers with reference to her preference as to which parent she desired to live with, she was lacking only one day of attaining the age of fourteen. This court is fully cognizant of the rights of the natural mother and the desirability of a young girl to live with her mother, but other facts are also important, including the child's wishes as to her habitation.
The relevant parts of the record as they pertain to the court's private interview of Gay read as follows:
The Court: "The Court would, however, like to talk to her alone a few minutes in chambers. Do you have any objection to that, Mr. Roffa, to the court talking to Gay alone?"
Mr. Roffa (Counsel for plaintiff-appellant): "I have no objection. I have the utmost confidence in the court, your Honor, but for the record, will this be as between the Court and the child? How informal will it be? Will that be under oath and made part of this record or not?"
The Court: "No, it would not, it would simply be so the court might have a few minutes alone to observe her and to at least try to ascertain for what it may be worth here."
Mr. Roffa: "Sure, I have no objection, your Honor. . . ."
A recess was then taken, the court returned, and the record continues:
The Court: "Let the record show that the Court has conferred with the child in question in Chambers. I did not place her under oath, I did not examine her as to facts and background, except I will say to counsel that I did ask her relative to the detective's statements that he saw her in the tavern and the Court is satisfied that was probably an error in that testimony.
"The girl has told me that she much prefers to remain in Coloma, that she has strong feeling toward her father going back to her very early years, that she has a strong attachment toward her paternal grandparents who live near them, and that even though they will no longer have the resort that doesn't really seems to make much difference to her, nevertheless, she still prefers to remain in Coloma, for what that may be worth." (Emphasis supplied.)
The italicized language above reveals that the court was not significantly influenced by Gay's preference of Coloma rather than Whitefish Bay and the findings of fact place no emphasis on her wishes in this regard whatsoever.
It should be noted also that Gay's desire to return to Coloma was well known to the court as her intention was revealed through the testimony of several witnesses. The only remarks the court made in its oral decision which could be attributed to the court's interview with Gay are the following:
"This Court is going to be governed in this case by what he believes to be in the best interest of this girl. The Court will say into the record that he has been very — and I emphasize that — very impressed by this young lady. She's a good, clean, wholesome girl of the best possible type. I discern no neurotic ideas or tendencies in her. I found her sensible beyond her years. . . .
"And if this girl were only interested in being around a resort, we should now find her unhappy at the sale of the resort and willing to go back to Milwaukee, but the court didn't find her so, she's looking forward to living in Coloma and being near her grandparents. . . ."
In Morris v. Morris (1953), 121 Cal.App.2d 707, 709, 264 P.2d 106, 107, the court said:
"The court made no statement of what the children had said in the interview. Plaintiff criticizes the practice as one which permitted the court to take evidence that was not known to the parties, or their attorneys. No request was made for a statement by the court. Nevertheless we think it would be the part of wisdom for the court to make a record of such interviews with children in custody cases in order to protect itself against any suspicion of unfairness on the part of the parent against whom the decision is rendered."
In circumstances similar to those in the instant action, the court in Johnson v. Johnson (1958), 7 Utah 2d 263, 266, 323 P.2d 16, 18, stated:
"The record rather reflects that he [the court] correctly regarded the expression of preference as mere advice as to the desires of the child and as only one of the factors to be considered in determining what course would best serve her welfare. There was nothing inimical to the rights of the plaintiff in the procedure followed."
This court in Jones v. State ex rel. Falligant (1933), 211 Wis. 9, 17, 247 N.W. 445, stated:
"As we have said in many cases, the primary consideration in cases involving the right to the custody of a minor child is the welfare of the child. The so-called `right' of parents must yield when the exercise of that right will be detrimental to the child's interest. It is not a right to be vindicated in the law as the possession of a chattel should be. The so-called right is really a privilege to rear the child and prepare it for life . . . the time is not far distant when this girl or young woman will take charge of her own life, whatever the decision of this court may be. It would seem proper and just to give some consideration and weight to her wishes and desires in the matter.
"Our statutes (sec. 319.01) provide that a minor over fourteen years of age may nominate his own guardian, who if approved by the court shall be appointed. Courts ordinarily give much consideration in cases where guardians are to be appointed to the wishes of children. In In re Goodenough, 19 Wis. *274, it was said that a girl twelve years old ought to have been consulted as to her choice, and it may be inferred at least that her choice should have influenced the action of the court."
See also Vilas v. Vilas (1931), 184 Ark. 352, 42 S.W.2d 379.
We determine that under the facts and record in the instant action, Betty Graichen was not prejudiced by the inclusion in the record of the court's findings relative to its interview with Gay Graichen.
By the Court. — Order affirmed.