Not overruled or negatively treated on appealinfoCoverage
Supreme Court of WisconsinApr 6, 1954
266 Wis. 448 (Wis. 1954)
266 Wis. 44863 N.W.2d 405

March 4, 1954 —

April 6, 1954.

APPEAL from an order of the county court of Sauk county: HENRY J. BOHN, Judge. Affirmed.

For the appellant there was a brief by Darrell MacIntyre, and oral argument by Mr. MacIntyre and Mr. Rolland R. Roggensack, both of Madison.

For the respondent there was a brief by Langer Cross of Baraboo, and oral argument by Clyde C. Cross.

An action for divorce was begun in February, 1947, by Leon Lewis against Ida Lewis. The action was tried by Hon. HENRY J. BOHN and judgment was entered on September 19, 1947, granting plaintiff a divorce and awarding him custody of their two minor children. An appeal from that part of the judgment awarding the husband custody of the children was taken. This court held that the trial court had properly found that the mother was unfit, and affirmed. Lewis v. Lewis, 252 Wis. 576, 32 N.W.2d 227. We said upon that appeal that evidence of the mother's misconduct and unfitness warranted granting the care and custody of the children to the father.

The instant proceeding was commenced by the mother on September 3, 1953, upon her application for an order transferring custody of the children to her. The application was denied by order entered September 16, 1953. She appeals.

The wife has remarried and lives with her second husband at Fort Atkinson where they share a house with two other families. She works five days a week from 7 a. m. to 3:30 p. m. She made no real attempt at the hearing in the court below to establish her moral rehabilitation or an abandonment of the customs or habits which prompted the finding of unfitness made in the trial of the divorce action. She sought rather to establish that the father's conduct had been such as to require that the children be taken from him.

Her attack was based principally upon her charge of his improper relations with his present housekeeper and offered some testimony in support thereof. The charge was met quite adequately by the testimony of her own father who had lived with her former husband and the children since the parties were divorced, and who testified that he had never seen anything wrong in his son-in-law's conduct. He testified also that the children had received good treatment. The wife's sister, who lives about three miles from the husband's farm and visits with him about once a month, also testified that the children seemed to be happy with him.

We should not disturb the conclusion of the learned trial judge who for a number of years has had rather close contact with these people and familiarity with their affairs and who has been able to observe many things which are impossible of portrayal upon a cold record.

By the Court. — Order affirmed.