Scolman v. Scolman

226 N.W.2d 388, 66 Wis. 2d 761, 1975 Wisc. LEXIS 1696
CourtWisconsin Supreme Court
DecidedMarch 4, 1975
Docket257
StatusPublished
Cited by5 cases

This text of 226 N.W.2d 388 (Scolman v. Scolman) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scolman v. Scolman, 226 N.W.2d 388, 66 Wis. 2d 761, 1975 Wisc. LEXIS 1696 (Wis. 1975).

Opinions

Wilkie, C. J.

This is a divorce case. The sole issue on appeal is whether the trial court applied an incorrect standard in awarding the custody of the parties’ four-year-old son, now six and one-half, to the defendant-respondent mother rather than the plaintiff-appellant father.1 We conclude that the trial court did err in this respect, in according an arbitrary preference to the wife, [763]*763contrary to Wisconsin law and to the specific provisions of sec. 247.24 (3), Stats. We therefore reverse the judgment and remand for further proceedings on the question of custody of the child.

Robert Scolman commenced a divorce action against his wife, Connie, on the grounds of cruel and inhuman treatment. Mrs. Scolman counterclaimed, asking for a divorce on the same grounds. The husband was awarded temporary custody of the couple’s then three-year-old son, John. After trial, the trial court dismissed plaintiff’s complaint and granted the divorce on the wife’s counterclaim. Although both the family court marriage counselor and the guardian ad litem recommended that the father retain custody, custody of John was nevertheless awarded to the wife. Presumably the custody was then transferred and John remains with the mother to this day. The husband appeals from the judgment awarding custody of John to the wife.

Great deference is accorded trial court decisions in child custody cases. Where the trial court finds that the best interests of the child are better served by awarding custody to one parent rather than the other, the award will not be upset unless it is against the great weight and clear preponderance of the evidence or unless it represents a clear abuse of discretion.2

In addition, as the court said in Heiting v. Heiting: 3

“. . . Challenges to custody orders are usually characterized as an abuse of judicial discretion. However, where it is claimed the trial court applied the wrong rule of law it can be error.”

Although the husband challenges the trial court’s decision on both of these grounds, only the latter ground need [764]*764be considered here because the trial court made its award on the basis of an incorrect view of the law and gave an undue preference to the wife. We have stated many times that “other things being equal, preference will ordinarily be given to the mother if she is not unfit.” 4 Here there is no question that the trial court found both of the parties fit. However, the preference for the mother is not a rule of law but is only an important element to be considered. The crucial and controlling factor is the welfare of the child.5

A review of the record here clearly indicates that the trial court transformed a slight preference for the mother into an almost irrebuttable presumption in favor of the mother.

At the time the hearings were concluded on the question of custody, the mother, aged twenty-five, had commenced employment at the E-Z Paintr, working first on the late afternoon and evening shift and finally on the day shift from 7 a. m. to 3:30 p. m. She stated that, if awarded custody, a woman down the street with two children of her own would take care of John while she was working. She indicated that she wanted to move and, if possible, quit her job. In any event, she said she would secure a baby-sitter beforehand or else she would not move.

At the time of the custody hearings, the father, aged thirty-one, was working at Briggs & Stratton in Milwaukee as a pipefitter on the night shift from 11 p. m. to 7:30 a. m. The father stated that his own mother had moved in and would help out with the small boy. During the day he would take him to his prekindergarten Montes[765]*765sori school. He would then pick the child up after his half day at school and be with him until the child’s bedtime at 7:30. Although the father said he earned $10,000 after taxes in 1972, or approximately $830 per month after taxes, with monthly expenses listed in the record of less than $600 6 as against these earnings, the trial court concluded that the father’s plan for the child was financially unrealistic. “Pie-in-the-sky” was the trial court’s summation.

As indicated, both the guardian ad litem and the family court marriage counselor recommended custody to be awarded to the father. The court praised the reports but rejected them because of his belief that, no matter how good a parent the father would be, the mother takes precedence if she is also fit. In rejecting the reports, the court explained:

“Now, taking that in proper perspective, the sociological impact is to give the child to the mother. That is how simple this case resolves itself. In spite of the tremendous effort put forth by the guardian ad litem, and the excellent report of Mr. Adamak, the mother is the natural and normal custodian.”
“And, again, the recommendation of the guardian ad litem was not taken lightly, Mr. Shapiro, the good lawyer that he is, and the requirements of the law, I think, were fulfilled. There was a full and complete, comprehensive investigation, recommendation, both from the Department as well as from the guardian ad litem, but the Court differs with the conclusions of both because the court feels that the sociological impact of the mother’s care, of a mother’s interest in a four year old child overcome the other considerations both Mr. Shapiro and Mr. Adamak used in arriving at the conclusions.”

[766]*766The court also indicated that by nature a father is incapable of substituting for a mother:

“. . . The child needs care, maintenance, and discipline. When the child is sick and running a fever, he needs the mother along side of him. You are not there. You will not be there and you cannot substitute for the mother of a child, the natural feeling.”
“. . . don’t let anybody else, some well meaning housekeeper, going to do for the child what the natural mother should do. You know that isn’t possible, Mr. Scolman. I don’t care how well intentioned a mother still has the roll of being parent, patient, compassionate, humane with the child. Eaising of a child is a skill in and of itself and to be honest with you, in this day of women’s lib, I don’t think men are built for that. I think it is primarily a women’s responsibility to raise the child.”

The husband-father relies on sec. 247.24 (3), Stats., which was adopted in 1971 and states:

“(3) In determining the parent with whom a child shall remain, the court shall consider all facts in the best interest of the child and shall not prefer one parent over the other solely on the basis of the sex of the parent.”

We conclude that sec. 247.24 (3), Stats., does not strike down the holdings of this court indicating that, other things being equal, there is usually a preference for the mother. The trial court may properly find that young children are better off with their mother. The statute merely decrees what the law in Wisconsin is already, that the trial court’s decision cannot solely be based on the sex of the parent. Our interpretation of sec. 247.24 (3) is consistent with the interpretation placed on the identical language in a Minnesota statute by the Minnesota Supreme Court in three recent cases. In Petersen v. Petersen

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Marriage of Pergolski v. Pergolski
420 N.W.2d 414 (Court of Appeals of Wisconsin, 1988)
State v. Hill
283 N.W.2d 451 (Court of Appeals of Wisconsin, 1979)
Allen v. Allen
254 N.W.2d 244 (Wisconsin Supreme Court, 1977)
Kraemer v. Kraemer
227 N.W.2d 61 (Wisconsin Supreme Court, 1975)
Scolman v. Scolman
226 N.W.2d 388 (Wisconsin Supreme Court, 1975)

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Bluebook (online)
226 N.W.2d 388, 66 Wis. 2d 761, 1975 Wisc. LEXIS 1696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scolman-v-scolman-wis-1975.