Pfeifer v. Pfeifer

Full title: PFEIFER, Appellant, v. PFEIFER, Respondent

Court: Supreme Court of Wisconsin

Date published: Mar 5, 1974

215 N.W.2d 419 (Wis. 1974)

215 N.W.2d 419

Opinion

No. 204.

Submitted February 4, 1974. —

Decided March 5, 1974.

APPEAL from a judgment of the circuit court for Waukesha county: WILLIAM E. GRAMLING, Circuit Judge. Affirmed.

For the appellant the cause was submitted on the brief of Thomas R. Cannon, Morton M. Grodsky, Nancy A. Phelps and Jordan B. Reich, Legal Aid Society of Milwaukee.

For the respondent the cause was submitted on the brief of Joseph T. Lex of West Allis.

Facts.

The appeal is solely from that portion of the judgment of absolute divorce awarding custody of the couple's five minor children to defendant-respondent, Thomas J. Pfeifer.

On June 11, 1971, plaintiff-appellant, Dale A. Pfeifer, filed suit for divorce, alleging cruel and inhuman treatment. The complaint alleged that both parties were fit persons to have custody of the minor children and asked: "That the Court make such order as may be just and proper regarding the custody of the minor children of the parties."

On February 28, 1972, defendant-respondent, Thomas J. Pfeifer, filed an answer denying cruel and inhuman treatment on his part and alleging cruel and inhuman treatment on the part of plaintiff-appellant. The answer alleged that defendant-respondent was a fit and proper person to have custody, and requested custody of the minor children.

On February 28, 1972, an order to show cause was issued why the defendant-appellant should not be permitted to further counterclaim and why an investigation pertaining to child custody should not be ordered. On March 1, 1972, the answer was amended to include a counterclaim for decree of absolute divorce on grounds of adultery.

At the trial the plaintiff-appellant testified that the parties were married on October 28, 1961, and that five children (ages: eight, seven, six, four and two) were born to the parties during the ten-year marriage. (Plaintiff was twenty-nine years of age; defendant thirty-one years.) Plaintiff testified that defendant spent too much time and money working on a racing car he owned, that he rarely spent time with the children, that the couple seldom went out socially, and that defendant struck her about six times during the ten years of marriage. Plaintiff admitted an adulterous relationship with an eighteen-year-old boyfriend. Three witnesses for the plaintiff testified that plaintiff was a proper mother and that the children were healthy, happy and well cared

At the trial the defendant-respondent testified that he was employed as an industrial arts teacher. He testified that he worked on his car to avoid the screaming and yelling of his wife. He testified that the plaintiff threw objects at him, screamed and shook the children, and beat the couple's son. He testified that one child suffered from "withdrawal" symptoms. He testified that the plaintiff was emotionally unstable, mentioning suicide, taking diet pills to get high, allowing 7th and 8th grade students to babysit overnight with the five children, and being "temperamental" with the children. Lengthy letters written by the plaintiff to her boyfriend were introduced into evidence, containing comments on her thinking of committing suicide by automobile, getting high on diet pills, losing her mind, thinking of killing the defendant, being in love with the boyfriend, and stating that the children "bug me" and referring to "the lousy job of raising the kids I have done." (Plaintiff testified that she had written these letters when she was "highly emotionally upset.") Defendant testified that, if awarded custody, his parents would help care for the children. The grandparents testified they would be willing to help care for the children if the husband was given custody of them.

ROBERT W. HANSEN, J.

All issues raised on this appeal relate to the trial court finding that the best interests of the five minor children of the parties required that custody be awarded to their father. Four separate challenges to the award of custody are involved, and each will be separately considered.

Abuse of discretion.

(1) It is contended that the custody award was against the great weight and clear preponderance of the evidence, and constituted an abuse of discretion. A trial court has wide discretion in determining custody matters, and ordinarily its decision will not be upset unless there is evidence of a clear abuse of discretion.¹ The controlling factor in determining custody disputes is the welfare of the minor children involved.²

In the case before us, the trial court, awarding custody to the father, found such custody placement order demanded by the best interests of the children. In support of its custody determination, the trial court cited (1) the continuing adulterous relationship of the plaintiff with an eighteen-year-old; and (2) the "infantile immaturity" of the plaintiff which "lends considerable credence" to the testimony that she is "emotionally unstable." The trial court did not find the plaintiff an unfit person to have custody, and was not required so to do.³

3 Id. at page 196, stating: "A trial court need not necessarily find one parent unfit in order to award custody to the other parent on the ground that it would be in the best interest of the child to do so." Citing and quoting Larson v. Larson (1966), 30 Wis.2d 291, 299, 140 N.W.2d 230, stating: "`. . . A court should not necessarily feel impelled to make a finding of unfitness on the part of the mother when it has determined that the best interests of the child demand its custody be placed in the father. . . .'"

Plaintiff does not quarrel with the trial court's considering as a factor the admitted adulterous relationship with the eighteen-year-old paramour. The relationship appears to have continued up to the time of trial. Adultery is an element to be taken into consideration along with other factors in determining custody.⁴ While children are not to be taken from a parent as a penalty for improper conduct,⁵ both the fact of adultery and the continuing relationship with the young paramour were factors the trial court properly took into consideration insofar at, as it stated in its opinion, as they affected the best interests of the children. As this court has phrased it, "the polestar remains the welfare of the child."⁶

4 Molloy v. Molloy (1970), 46 Wis.2d 682, 688, 176 N.W.2d 292, stating: ". . . we do not hold that adultery as a matter of law renders a mother unfit for the custody of her children; it is an element to be taken into consideration with other factors in determining her fitness. . . ."

5 Dees v. Dees, supra, footnote 2, at page 442, stating: ". . . This court has said that children are not to be taken from a parent custodian as a penalty for improper conduct. It is equally true that children are not to be given to a custody-seeking parent as a premium or reward for good conduct or recovery from mental or emotional difficulties.
". . . the trial court has the responsibility to determine what disposition and what conditions will best serve the interests of the children involved. . ."

6 Welker v. Welker (1964), 24 Wis.2d 570, 578, 129 N.W.2d 134.

The thrust of plaintiff's objection is that the finding of emotional instability rests largely on the lengthy letters written by plaintiff to her paramour in which there are references to her committing suicide, getting high on diet pills, losing her mind, thinking of killing her husband, plus statements that the children "bug me" and that she had done a "lousy job of raising the children." These letters were written at the time the plaintiff filed a suit for divorce, about one year before the date of trial. plaintiff contends they relate to her condition "in the past and not. . . at the time of hearing." The contention relies heavily upon this sentence in Larson: "Fitness should be determined as of the time of the hearing . . . ."⁷ Three points should be made. (1) Larson also provides that evidence of past conduct or prior emotional conditions shall be relevant and material "insofar as it constitutes a reasonable guide to present qualifications and future probabilities."⁸ It was for the trier of fact to determine the degree to which the emotional instability evidenced by the letters was a reasonable guide to present qualifications and future probabilities. (2) Larson also holds that clear demonstration that a parent has been unfit in the past is not to preclude "him or her from establishing that he or she is now fit morally and otherwise to have the custody of the minor child."⁹ The burden is not upon spouse or court to establish lack of recovery from a period of emotional instability and upset. Here the plaintiff testified that she no longer suffered from the emotional upsets of divorce-filing time, but the trial court was not obliged to accept such self-serving declaration, or the testimony of neighbors that they observed nothing awry, as evidence of full recovery from the condition of emotional instability. (3) Additionally, the trial court here had before it testimony of the defendant as to outbursts of temper directed at the children, and the testimony of the paternal grandmother concerning adverse effects upon one of the children of the plaintiff's conduct toward the child. This court has held that an emotional disturbance of a parent adversely affecting a child is ground for a custody change.¹⁰ On these facts and this record, we find no abuse of discretion in the trial court's award of custody of the children to the defendant father. Transfer of custody.

7 Larson v. Larson, supra, footnote 3, at page 299.

8 Id. at page 299.

9 Id. at page 299.

10 Seelandt v. Seelandt (1964), 24 Wis.2d 73, 82, 128 N.W.2d 66, this court stating: ". . . an emotional disturbance of a parent which makes it harmful to the welfare of a minor child to continue custody in such parent, should constitute unfitness. . . . We so hold. . . ."

(2) It is contended by plaintiff that the trial court order awarding custody to the defendant father did not give proper weight to the fact that, under a court order for temporary custody, the children had been living for one year with the plaintiff mother with no apparent adverse effects upon them. Where custody is awarded to one parent in a divorce proceeding, and there is a subsequent effort to change that custody order, there may well be a tendency to "let well enough alone."¹¹ In Koslowsky, where a change of custody was sought after the children of divorced parents had been for five and one-half years in the home of their father and paternal grandparents, this court did say: ". . . If the present arrangements for custody are working out satisfactorily, considering the alternatives available, the children should not be uprooted and placed in a different environment unless it appears that the best interests of the child will be enhanced . . . ."¹² This statement is not to be read as doing more than listing a factor to be considered by the trial court in determining whether a change of custody would be in the best interests of the children involved. It is the possible or potential adverse effect of a shift in custodial arrangements upon the child that is to be considered, not merely the fact that a change of custody involves a change of surroundings.¹³ This is particularly true when no more is involved than a temporary custody order controlling the situation from the commencement of a divorce action to its date of trial. It is not expected that such entirely temporary custodial provisions will be preceded by the full inquiry that accompanies the post-trial award of custody to one or the other of two divorce-bound parents. We see neither reason nor merit to upgrading an order for temporary custody, pending trial, into some near-permanent determination of the rights of the parents and the best interests of the children. In the case before us, during the year between commencement and trial, the defendant father visited with the children and/or took them on outings regularly twice a week. He took the children regularly to the paternal grandparents' home for Sunday dinner. There is evidence of a close relationship, even while the action was pending, between the children and their father and paternal grandparents. We see no basis for holding that transfer of custody to the defendant father is likely to cause emotional or psychological disturbances because of the fact of transfer.¹⁴ Social service investigation. (3) It is the contention of plaintiff that the failure of the trial court to order an investigation of the alternatives as to custody placement by a qualified social service investigator constitutes reversible error. Plaintiff-appellant does not claim that she requested that such social service investigation be conducted. Rather, she contends that the trial court should have ". . . on its own motion or upon the motion of the respondent [defendant] ordered a custody evaluation." It is a little late to join a motion of the adversary party after the trial has been concluded. As to the responsibility of the trial court to order a custody investigation and evaluation, the short answer is that such court-initiated social service investigation has been clearly authorized,¹⁵ commended¹⁶ and recommended,¹⁷ but not required.¹⁸ This court has recently held, as to social service investigations conducted by qualified social workers, that "neither the use of such witnesses nor the acceptance of their recommendations is mandatory."¹⁹ Additionally, where the defendant did the asking for such investigation, the plaintiff is in no position to complain that the request she did not join was not granted. Guardian ad litem. (4) It is contended by the plaintiff that the trial court in this case should have appointed a guardian ad litem to represent and protect the interests of the five minor children involved in and affected by the custody determination. In this state the children of parents involved in divorce litigation are "interested and affected parties" in such action.²⁰ In post-trial hearings as to custody, as well as at the time of trial, the trial court has the "responsibility to determine what disposition and what conditions will best serve the interests of the children involved."²¹ In the discharge of that responsibility one of the ". . . affirmative steps that can be taken by trial courts in custody matters is the appointment of a guardian ad litem to represent the interests of the child or children who are subjects, not objects, of the court inquiry. . . ."²² Where court orders in custody matters were reversed and remanded, this court has on several instances directed that a guardian ad litem be appointed for the rehearing ordered.²³

It is now required by statute in this state that in any action involving marriages, divorce or the custody of children, that the trial court "shall appoint a guardian ad litem to represent such children" whenever "the court has reason for special concern as to the future welfare of the minor children."²⁴ So the question narrows to whether it was an abuse of discretion for the trial court here not to appoint a guardian ad litem for the five minor children of the parties, at least at the point in the proceedings where the answer of the defendant created a dispute as to the custody placement of such children. Given the fact of a custody dispute raised by the pleadings, plus the number (five) and the ages (eight, seven, six, four and two) of the children, three members of the court — the writer and Justices HORACE W. WILKIE and NATHAN S. HEFFERNAN — would find a clear abuse of discretion, finding this a clear case in which the trial court should have appointed an attorney to serve as guardian ad litem for the children. The majority of the court feels that it would be applying a hindsight-is-better-than-foresight approach to here hold that the trial court was alerted to the nature and extent of the dispute as to custody by the pleadings or before trial. The plaintiff's complaint alleged that both parties were fit and proper persons to have custody and asked only: "That the Court make such order as may be just and proper regarding the custody of the minor children of the parties." The defendant's answer alleged only that defendant was a and proper person to have custody, and asked therefor. It was only after the taking of testimony and the introduction of letters written by the plaintiff mother that it became evident that there was clearly reason for special concern as to the future welfare of the minor children. While a mid-trial appointment of a guardian ad litem was possible, that hardly serves the full purpose providing legal representation to protect the rights and welfare of the minor children in divorce litigation. If the custody determination here made had been reversed on other grounds raised, all members of this court are agreed that the appointment of a guardian ad litem would have been directed for the rehearing. However, the court majority agrees with the statement that, even in a close case, in a custody appeal ". . . an appellate court ought not reverse the findings of a trial court unless it is completely satisfied the trial court has clearly abused its discretion and decided the matter against the great weight and clear preponderance of the evidence. . . ."²⁵ The judgment of the trial court, and the award of custody of the children of the parties to the defendant husband that the judgment contains, is affirmed.

24 Sec. 247.045, Stats., provides: " Guardian ad litem for minor children. In any action for an annulment, divorce, legal separation, or otherwise affecting marriage, when the court has reason for special concern as to the future welfare of the minor children, the court shall appoint a guardian ad litem to represent such children. If a guardian ad litem is appointed, the court shall direct either or both parties to pay the fee of the guardian ad litem, the amount of which fee shall be approved by the court. In the event of indigency on the part of both parties the court, in its discretion, may direct that the fee of the guardian ad litem be paid by the county of venue."

25 King v. King (1964), 25 Wis.2d 550, 557, 131 N.W.2d 357.

By the Court. — Judgment affirmed.