Opinion
May 10, 1951 —
June 15, 1951.
APPEAL from a judgment of the circuit court for Milwaukee county: AUGUST E. BRAUN, Circuit Judge. Reversed.
Dennis M. Sullivan of Milwaukee, for the appellant.
Paul Falbe of Milwaukee, for the respondent.
Action brought by Oswald H. Vogel against his wife, Marjorie E. Vogel, for a judgment granting a divorce from bed and board, and the award to plaintiff of the care and custody of their minor children, on the ground that defendant was morally unfit to have their care and custody by reason of her grossly immoral and adulterous conduct. The allegations to that effect in plaintiff's complaint were denied in defendant's answer, and she filed a counterclaim for judgment granting an absolute divorce and awarding the care and custody of their children to her. Upon a trial of the issues under the pleadings, the evidence definitely established defendant's adulterous conduct and unfitness to have the care and custody of the children. Pursuant to the prayer in plaintiff's complaint the court ordered judgment granting a divorce from bed and board; but awarded the care and custody of the children to defendant with provisions for payments for their support and maintenance by plaintiff to the defendant and a division of the property jointly owned by the parties. Plaintiff appealed from the provisions in the judgment in relation to the care and custody of the children and the division of the property of the parties.
There was no finding by the court and apparently there was no evidence of any misconduct or unfitness on plaintiff's part because of which he is not a proper parent to have the care and custody of the four minor children of the plaintiff and the defendant; and he testified that if that was awarded to him he would procure the services of a middle-aged housekeeper competent to aid and supervise his care and custody of the children. In view of defendant's admissions as to her sexual relations with another man, harbored by defendant in her and her husband's and the children's home during the years 1948 to 1950, which resulted in her becoming pregnant on two occasions, and the evidence as to defendant's immoral misconduct in other respects, the court was clearly warranted during the course of the trial in stating:
"I don't believe that I could, under these circumstances, where she had admitted her adultery or adulterous conduct, let her have custody of these children. . . . I have already indicated that the defendant will not have the custody of the children. . ."
Under the circumstances there is applicable here the statement in Obenberger v. Obenberger, 200 Wis. 318, 320, 228 N.W. 492:
"There is no dispute but that the father is competent and worthy in every way to have the custody of his son. On the contrary, the evidence is convincing that the mother has not given the boy a proper home. It appears without dispute that the mother frequently drank intoxicating liquors to excess, with other men and women, in the presence of the boy; that she harbored in her home a married man, under such circumstances as to indicate adulterous relations between them extending over a considerable period of time, and that such relations were known to her son. Such conduct on the part of a mother in her home, and to the knowledge of her son, twelve to fourteen years of age, cannot be accepted by a court as the furnishing of a suitable home for a son of that age."
When the wife is proven to be morally unfit to have the custody of the minor children of a married couple and there is no testimony that the father is incompetent, unfit, or unworthy to have the care and custody of the children, their care and custody should be awarded to him if he can provide for them a suitable home with competent and proper supervision in his absence. As the evidence established conclusively defendant's adulterous conduct and unfitness to have the care and custody of the children, she has by her own wilful misconduct forfeited the right to have' their care and custody which she, as their mother, would otherwise have to rear her offspring. Consequently, the judgment awarding their care, custody, and education to defendant cannot be sustained, and under the circumstances there cannot be sustained the trial court's adjudication in respect to a final division of the' property of the parties, the payment of attorney's and guardian ad litem's fees, and other financial matters.
By the Court. — Judgment reversed and cause remanded for a new trial.