Opinion
October 4, 1954 —
November 9, 1954.
APPEAL from an order of the county court of Washington county: MILTON L. MEISTER, judge. Affirmed.
For the appellant there was a brief by Leo W. Slensby, attorney, and William B. Rubin of counsel, both of Milwaukee, and oral argument by Mr. Rubin.
For the respondent there was a brief by Fairchild, Foley Sammond, Vernon A. Swanson, and Harrold J. McComas, all of Milwaukee, and oral argument by Mr. Swanson and Mr. McComas.
On March 26, 1942, judgment was entered in the county court of Washington county granting a divorce to the plaintiff, Florence M. Paulson, from the defendant, Earl B. Paulson. There was one child, Eugene, a minor. By the terms of the judgment custody of the child was awarded to Mrs. Paulson. The judgment contains, among other things, the following provision:
That the defendant pay to the plaintiff the sum of ten thousand dollars ($10,000), the payment of said sum to be as follows: Two thousand dollars ($2,000) upon the entry of judgment, the balance to be paid at the rate of five hundred dollars ($500) a month with interest at the rate of 4% per annum upon the unpaid balance the first payment to be made May 1, 1942, and like payments of five hundred dollars ($500) on the first day of each month thereafter, "as and for final division of estate and as and for support and maintenance for the minor child of the parties hereto."
Full payment of the $10,000 was made by the defendant prior to his death which occurred on March 21, 1952. Upon his death letters testamentary were issued by the county court of Milwaukee county to Ethelle Paulson whom he had married after the divorce. On August 7, 1953, there was filed in the county court of Washington county the petition of the minor son by Florence M. Paulson, his mother and general guardian, the plaintiff in this action, reciting the foregoing facts and alleging that the above-quoted portion of the judgment is void as against public policy, morals, and good conscience. The prayer is that an order be entered nunc pro tunc striking from the findings and judgment the clause "as and for support and maintenance for the minor child of the parties;" that she have other and further relief in equity; and that for his maintenance in the meantime the court fix such amount as the court shall deem just and proper.
Upon such petition an order to show cause why the relief demanded should not be granted was issued and served upon the following: The attorneys who had appeared for the parties at the trial of the divorce action, the then divorce counsel, the present divorce counsel, the guardian ad litem appointed for the minor in the proceedings upon the settlement of the estate of the deceased defendant, and the attorneys for the executrix of the estate. Ethelle Paulson, the executrix, appeared specially and moved upon jurisdictional grounds to quash and set aside the order to show cause.
On February 20, 1954, an order was entered quashing and setting aside the order. The order recites that it is made in part at least upon the ground that the pertinent provision of the judgment is valid. Plaintiff appeals.
If it be determined that the provision of the judgment is valid it follows that it is not necessary to determine the questions of present jurisdiction and practice which are raised by defendant.
Petitioner construes the judgment as depriving the minor son of support and as operating to relieve the father from the obligation to support him. Consequently, it is contended that the provision is void. Her contention cannot be sustained. Sec. 247.24, Stats., provides that in rendering a judgment for divorce the court " may make" further provision therein concerning the maintenance of the minor children of the parties. It is not required that such provision be made.
Assuming that she correctly construes the provision, it is not void. A judgment in a divorce case must be read and construed in the light of the applicable statutes. Had the court expressly and unequivocally directed by the terms of the judgment that the father should be relieved from the obligation to support the child, the determination would not have been conclusive and final nor would it be void. Under the provisions of sec. 247.32, Stats., revision of the judgment might upon proper showing have been had at any time during the lifetime of the father. Lessig v. Lessig, 136 Wis. 403, 117 N.W. 792.
The court had jurisdiction of the parties and of the subject matter. It had the power to grant to the plaintiff an allowance for the support of the child of the parties or to withhold such grant. If the allowance made was inadequate or even if it be construed as no allowance at all, it was merely erroneous. It might have been corrected by appeal or by a motion to modify, but it is not open to a motion to vacate it as void.
By the Court. — Order affirmed.