Boehler v. Boehler

104 N.W. 840, 125 Wis. 627, 1905 Wisc. LEXIS 201

• Court: Wisconsin Supreme Court
• Decided: October 3, 1905
• Status: Published

Opinion

Maeshaxl, J.

An -action for divorce is a statutory proceeding. The limit of judicial authority therein does not extend beyond that specified in the written law (I Ency. PL & Pr. 52), which provides that the court may, upon entering a decree of divorce, in case of there being minor children, provide for their care, custody, maintenance, and education, and in its discretion award such custody to either of the parties. Sec. 2362, Stats. 1898. No authority is conferred by statute to provide in a divorce judgment or any proceedings in a divorce action for the support of adult children of the parties. The plain meaning of the statute as to children is that provision for their maintenance shall he limited to the period of minority. Words to that effect are a part of the statute by necessary implication. The custody spoken of is that control of children, belonging as a matter of right to parents, which, of course, does not extend beyond minority. It follows that the modification of the divorce judgment complained of was worse than mere error. It was extrajudicial. It was and is a nullity.

The proceeding on the part of appellant to obtain a modification of the divorce judgment by inserting therein a clause limiting his obligation for the maintenance of his children to their minority, was wholly useless. The judgment needed no such modification. It only provided for such support during the time the mother was given the care and custody of them,, which, as before stated, necessarily ended with their minority. It could not he extended beyond that time by the court and there is no room in the language of the judgment to suppose that there was any purpose thereby to extend it.

If, for any reason, appellant be legally bound to contribute for the support of his adult child, Adelia, the obligation rests upon conditions satisfying the statute as to the support of the poor, and the remedy to enforce it is the one specially prescribed by the statute for such cases, not by a proceeding in the divorce action.

Since evidence aliunde the record was necessary to show the fact that the lien created by the judgment to enforce payment to the plaintiff on account of the maintenance of the children had been fully discharged by payment for the full period of their minority, as directed, it was proper to apply to the court for a formal order adjudging such satisfaction and discharging the judgment-' in that regard. Upon the proofs made such an order should have been granted.

By the Court.- — -The order appealed from is reversed, and the cause remanded with directions to enter an order, upon the request of the defendant, satisfying the judgment as to the requirement therein for payment 'of money to the plaintiff for the support and maintenance of the children of the parties. Costs in this court are allowed in favor of appellant.