Opinion
September 6, 1962 —
October 2, 1962.
APPEAL from an order of the circuit court for Milwaukee county: ROBERT C. CANNON, Circuit Judge. Reversed.
For the appellant there was a brief by Rummel Connolly of Milwaukee, and oral argument by L. William Connolly.
For the respondent there was a brief by Eisenberg Kletzke, attorneys, and Edwin A. Star of counsel, all of Milwaukee, and oral argument by Mr. Star.
A proceeding in the divorce action of Raymond J. O'Neill, plaintiff, against Mildred Mary O'Neill, defendant, to amend the divorce judgment of the parties so as to provide for the support of a physically incapacitated adult son residing with the defendant wife.
The judgment of divorce was granted by the circuit court for Milwaukee county on May 28, 1958, at which time the parties had four minor children and one adult son. Defendant-wife was awarded $50 per month alimony, custody of the minor children, and $100 per month support for the minor children.
The instant proceeding was commenced by an order to show cause dated September 7, 1961, based upon an affidavit of defendant wife stating that the alimony allowed her and the support money allowed for the minor children was insufficient, because the adult son of the parties was a victim of muscular dystrophy and incapable of supporting himself.
The hearing on the order to show cause was heard on November 9, 1961, before the assistant family court commissioner in and for Milwaukee county. The commissioner denied the application for the increase of alimony and support money. The matter was then reviewed by the circuit court.
The circuit court for Milwaukee county on December 6, 1961, ordered "that alimony for the defendant herein is increased to the sum of $100 per month and support is to remain at $50 per month for the son of the parties, . . ."
On the motion of plaintiff husband the trial court on January 18, 1962, corrected and amended its order of December 6, 1961, to "provide that the plaintiff shall pay to the defendant the sum of $50 per month as and for support money for the adult child of the parties."
On February 13, 1962, defendant wife's attorney caused an order to show cause to be served upon plaintiff husband accompanied by an affidavit of defendant wife stating that her former husband was $150 in arrears on payment of alimony and support money.
The notice of appeal to this court was served upon the defendant wife on February 28, 1962. The circuit court for Milwaukee county on March 1, 1962, ordered payment of the arrearage and further ordered that the plaintiff husband should continue to pay, during the pendency of the appeal, $150 per month alimony and support money.
It is from the January 18, 1962, amended order which granted $50 a month for the support of the adult son of the parties, that this appeal is taken.
Divorce is a statutory proceeding. The affecting divorce in this state provide for the support of minor children of the parties. No jurisdiction or authority is conferred by the divorce statutes on the court to provide in a divorce judgment, or any proceeding in a divorce action, for the support of adult children of the parties. The statutory provisions are plain and concise limiting the support, maintenance, and education of the children to the period of their minority. Hence, any order awarding support money for an adult child in a divorce action would necessarily be extra-judicial, a nullity. Boehler v. Boehler (1905), 125 Wis. 627, 104 N.W. 840, and Halmu v. Halmu (1945), 247 Wis. 124, 19 N.W.2d 317.
Sec. 247.01. "JURISDICTION. Notwithstanding other statutes and session laws, the circuit court has jurisdiction of all actions affecting marriage . . ."
Sec. 247.23. "SUPPORT OF WIFE AND CHILDREN; SUIT MONEY. (1) In every action . . . for a divorce . . . to compel support by husband, the court or family court commissioner may, during the pendency thereof, make such orders concerning the care, custody, and suitable maintenance of the minor children, . . ."
Sec. 247.24. "JUDGMENT; CARE AND CUSTODY, ETC., OF MINOR CHILDREN. In rendering a judgment of . . . divorce . . . the court may make such further provisions therein . . . concerning the care, custody, maintenance, and education of the minor children of the parties, . . ."
Sec. 247.25. "REVISION OF JUDGMENT. The court may from time to time . . . on the petition of either of the parties . . . alter such judgment concerning the care, custody, maintenance, and education of any of the children, . . ."
Sec. 247.08. "ACTIONS TO COMPEL SUPPORT BY HUSBAND. If any husband fails . . . to provide for the support . . . of his . . . minor children, the wife may commence an action . . ."
It therefore necessarily follows that that part of the order the trial court which revises the judgment by awarding support money for the adult child be vacated.
By the Court. — The order of the trial court awarding support money for the adult child to the defendant is reversed, and cause remanded with directions to enter an order crediting the payment made under the void order, so as to satisfy the requirement in the judgment for the payment of alimony, to the defendant and support money for the minor children of the parties.