March 4, 1964 —
March 31, 1964.
APPEAL from an order of the circuit court for La Crosse county: LINCOLN NEPRUD, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Dale G. Waterman of La Crosse.
For the respondent there was a brief by Moen, Sheehan Meyer and L.E. Sheehan, all of La Crosse, and oral argument by L.E. Sheehan.
There was also oral argument by Joseph D. Becker of La Crosse, guardian ad litem.
Action for absolute divorce commenced by plaintiff-respondent, Elizabeth Hutschenreuter, against the defendant appellant, William Hutschenreuter. The parties were married on April 2, 1955. This was approximately six months after Elizabeth Hutschenreuter's former husband had obtained a divorce from her in the circuit court for La Crosse county, Wisconsin. On September 27, 1960, plaintiff commenced the instant action in the circuit court for La Crosse county. Judgment was entered on December 2, 1960, granting an absolute divorce to the plaintiff. At the time of the divorce the parties had one child, David, and the plaintiff was pregnant with another child. Neither the judgment nor the findings of fact and conclusions of law contain any reference to the pregnancy; and the only reference to children is found in the findings of fact wherein it is stated that one child has been born as a result of the marriage, namely David, who was one and one-half years old at the time the divorce was granted.
On May 2, 1961, approximately five months after the judgment of divorce, a daughter, Cari Lee, was born to the plaintiff.
On May 27, 1963, plaintiff filed a petition for revision of the support provision of the December 2, 1960, divorce judgment. The petition prayed that the judgment be revised so as to provide for support money for the after-born child, Cari Lee, in the amount of at least $15 per week. The defendant filed an affidavit in opposition to plaintiff's petition, stating that more than one year had expired since the judgment was entered; that he had insufficient knowledge to form a belief as to the alleged pregnancy of the plaintiff on the date of the judgment; and that he is not the father of the child, Cari Lee. A guardian ad litem was appointed for Cari Lee, and a hearing was had on plaintiff's petition on September 5, 1963, before the circuit court. The parties appeared through their attorneys, and the trial court found that the marriage of plaintiff and defendant was not illegal, and that, in any event, defendant was estopped to question the validity of the marriage. A jury trial was set on the issue of defendant's paternity.
On September 23, 1963, an order was entered upon the jury's verdict that the child, Cari Lee, was conceived by the parties while still married and living as husband and wife, and that the child is the natural child of the defendant. The order revised the original judgment of divorce so as to provide for Cari Lee's support in the amount of $5 per week, plus arrearages in the amount of $5 per week dating back to the child's birth. The original judgment remained unaltered in all other respects. The defendant has appealed from the order, and from the judgment as revised.
The single issue on this appeal is whether the circuit court had jurisdiction to revise the judgment of divorce after two years had passed since the date of entry.
Divorce is a statutory proceeding, and the rights and remedies of the parties are limited to those provided by the statutes. Hirchert v. Hirchert (1943), 243 Wis. 519, 525, 11 N.W.2d 157. Sec. 247.25, Stats., provides as follows:
"The court may from time to time afterwards, on the petition of either of the parties and upon notice to the family court commissioner, revise and alter such judgment concerning the care, custody, maintenance and education of any of the children, and make a new judgment concerning the same as the circumstances of the parents and the benefit of the children shall require."
There is no time limit in sec. 247.25, Stats., and this court has stated that under the statute the trial court has the jurisdiction at any time to modify provisions of a divorce judgment relating to the maintenance of the minor children of the parties. Anderson v. Anderson (1959), 8 Wis.2d 133, 143, 98 N.W.2d 434.
It is fundamental that a divorce terminates only the relationship of husband and wife, and does not affect in any manner the parental relations or duties of the parties. Romanowski v. Romanowski (1944), 245 Wis. 199, 203, 14 N.W.2d 23. A husband's duty to support his wife and children does not cease because of a divorce, and even though the burden may be onerous the husband's obligation to support is present and must be recognized. Gissling v. Gissling (1961), 13 Wis.2d 556, 559, 108 N.W.2d 916.
The appellant does not question the trial court's finding that he is the father of Cari Lee, but argues that the word "children" as contained in sec. 247.25, Stats., contemplates the children existing and determined by the court at the time of the judgment of divorce to be the children of the marriage. In the instant action, the record discloses that the question of the paternity of the then unborn child was not before the court at the time of the findings and divorce decree on December 2, 1960, and that the court was not aware of respondent's pregnancy. Under sec. 247.37 (1) (a), a judgment of divorce is not effective even as to the marital status of the parties until the expiration of one year from the date of judgment. Here the child was born May 2, 1961, within the time that the judgment remained interlocutory, and this child, Cari Lee, was subsequently adjudged by the trial court to be a child of the marriage. To hold that the judgment may not be amended so as to provide support for the child would be to preclude the child's rights by the action of the mother in not revealing her condition at the time of the original decree. The interests of the children are not to be lightly regarded in matters arising under the Family Code. In Zillmer v. Zillmer (1960), 8 Wis.2d 657, 663, 100 N.W.2d 564, 101 N.W.2d 703, which was an action involving child custody, there was some question as to whether certain facts concerning the mother's history of mental illness were disclosed to the court when the original order for custody was entered. This court stated that "the interest of the child and of the public in the child's welfare should not be concluded by the failure of the parents to bring relevant and important facts to the attention of the court." It was found in the Zillmer Case that the facts brought before the trial court did at least suggest the question of whether the mother's illness might affect her fitness to have custody of the minor children. In the instant action, there was not so much as a hint that the respondent was pregnant.
Under the facts as presented by the record, when examined in the light of the intent and purpose of the Family Code, we determine that the trial court did not err in ordering the original judgment of divorce to be revised.
Appellant raises the additional argument that the marriage was void for the reason that the wife was a party to a prior judgment of divorce less than one year before the marriage, and that a child born of a void marriage is not a child born "in wedlock."
The findings of fact in the original divorce action provide that the parties were married in 1955, and "ever since have been and now are husband and wife." Since the issue of the validity of the marriage is always before the court in a divorce action, the judgment is res judicata on the question of the validity of the marriage.
In any event, there being nothing in the record to indicate that either one of the parties entered into the marriage in other than good faith, the impediment, if any, existing at the time of the marriage was removed a few months later when the wife's prior divorce became final. Sec. 245.24, Stats.; Hoffman v. Hoffman (1943), 242 Wis. 83, 87, 88, 7 N.W.2d 428.
"If a person during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract in accordance with s. 245.16, and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, or that the former marriage had been annulled, or dissolved by a divorce, . . . they shall, after the impediment to their marriage has been removed by the death or divorce of the other party to such former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment . . ."
We affirm the order of the trial court revising the divorce decree of December 2, 1960, so as to provide for support and maintenance of the minor child of the marriage, Cari Lee Hutschenreuter.
By the Court. — Order affirmed.