Action by a divorced woman against her former husband to recover unpaid instalments of support money for their minor child. Plaintiff was granted a divorce from the defendant Brown in September, 1946, in the circuit court for Milwaukee county. The judgment awarded her the custody of their one-year-old son, Randall Brown, ordered the defendant to pay $40 per month for the support of the child to the clerk of the court, and granted defendant the right to visit the boy on alternate Sundays. Two or three months after the entry of judgment plaintiff left the state with the child, and seven months after the judgment she went through a purported marriage ceremony in Iowa with one Harlan Braun. Plaintiff and Braun thereafter treated the boy as a member of their own family. After living in Minnesota for a few months they moved to Oconto Falls, Wisconsin, and in 1951 returned to Milwaukee to live. The boy Randall died in March, 1955.
Defendant Brown made none of the payments of support money ordered by the divorce judgment, nor did he apply to the court for relief therefrom or to enforce his right of visitation. In 1947 he made an attempt to locate plaintiff and the child, but thereafter apparently made no effort to learn their whereabouts or to exercise his right of visitation. After the boy's death defendant offered to pay his funeral expenses, but failed to do so. During the boy's lifetime plaintiff made no effort to enforce her rights in the premises; but shortly after his death, she commenced this independent action to collect $4,048 of unpaid support money accrued from the date of the divorce judgment to the date of the boy's death, plus $240 for his funeral expenses.
After trial, the court found as facts that plaintiff and Braun —
"submerged the identity of the said minor child into the family of and as the child of said Harlan Braun by, among other things, baptizing said child under the surname Braun, enrolling the child in a parochial school under that name and having said child listed as an exemption upon the income-tax returns of said Harlan Braun. When the child died on March 12, 1955, the death notice, his burial arrangements, and all facts relating to the identity of the said child listed him under the surname Braun;"
that Braun had assumed the role of loco parentis as to the boy, and, with plaintiff, had supported him "as their own without intending to charge therefor and for all intents and purposes intended to claim said child as their own by their marriage," and that plaintiff had failed to prove any damages. The court concluded that the actions of plaintiff and Braun in "transferring the identity of the minor child of the parties to this action from the defendant herein to said Harlan Braun" relieved the defendant from his obligations under the divorce judgment, and accordingly entered judgment dismissing the complaint. Plaintiff appeals.
WINGERT, J.
We have reached the conclusion that plaintiff is entitled to recover the unpaid instalments of support money called for by the judgment of divorce, and that accordingly the judgment in the present action must be reversed.
1. Sec. 247.32, Stats., provides that after a judgment providing for alimony or other allowance for the wife and children, —
". . . the court may, from time to time, on the petition of either of the parties, revise and alter such judgment respecting the amount of such . . . allowance and the payment thereof. . . ."
Thus it was open to defendant Brown, at any time before the boy died, to apply to the court for relief from the support-money provisions of the divorce judgment. He made no effort to do so.
In Halmu v. Halmu, 247 Wis. 124, 19 N.W.2d 317, this court held in a carefully considered opinion that when the youngest of several children for whose benefit an allowance of support money has been made reaches age twenty-one, the power of the divorce court to revise the support-money provisions of the divorce judgment terminates; and the ex-wife may then maintain an independent action, in the nature of a common-law action of debt upon a record, to recover the unpaid instalments of support money. ( 247 Wis. at pp. 131, 132, 135.)
The rule and reasoning of the Halmu Case are equally applicable to the case at bar. The death of an only child, like the attainment of his majority, operates to terminate the jurisdiction of the divorce court to modify the judgment for support money, and the ex-wife may then maintain an independent action to recover the unpaid instalments.
In Halmu it was observed, with reference to the action for unpaid support money, that —
"Under these circumstances, we consider that plaintiff need only show the amounts due by reason of the judgment during the minority of the children, subtract payments made by defendant, and the balance will be the amount owed by defendant."
it being merely a matter of mathematical computation. ( 247 Wis. at p. 136.) The court nevertheless considered a contention that the plaintiff ex-wife was guilty of laches, but held that she was not, without saying what effect on her rights laches would have had if proven. ( 247 Wis. at pp. 136, 137.)
In the present case it is not necessary to determine whether, as intimated in Halmu, the court in such an action is always limited to a mathematical ascertainment of the amounts remaining unpaid, and must enter judgment therefor regardless of other considerations, or whether, on the other hand, the court may exercise the familiar power of a court of equity to relieve against a judgment whose enforcement would be inequitable. Even assuming the existence, after the death of the child, of power to relieve defendant from the support-money provisions of the divorce judgment on equitable grounds, we are satisfied that defendant was in no position to invoke the aid of equity. Equitable relief from a money judgment will not be granted to one who is guilty of inexcusable neglect in asserting his right to such relief. Schulteis v. Trade Press Pub. Co. 191 Wis. 164, 165, 210 N.W. 419; Grady v. Meyer, 205 Wis. 147, 152, 236 N.W. 569; Kiel v. Scott Williams, 186 Wis. 415, 420, 202 N.W. 672.
In the present case, on his own story, defendant knew for eight years that plaintiff was failing to keep him advised of the whereabouts of the child and thereby depriving him of visitation. He admitted he made no serious effort to find them after the first year. At no time after the entry of judgment of divorce does it appear that defendant made any effort to comply with the support-money provisions of the judgment, or to apply to the court for relief therefrom, or to enforce the visitation provisions. There is no showing that lie was unable to pay after a few months at the beginning when he suffered from an injury.
Defendant having thus slept on his rights, equity will not now relieve him from the judgment to which he accorded so little respect for so many years. The judgment of a court is not to be trifled with.
We cannot agree with the trial court that defendant was excused from compliance with the divorce court's judgment for support money by the fact that plaintiff and Mr. Braun treated the boy as if he were their child. That was matter which could have been considered by the divorce court in a timely application to revise the terms of the judgment, but defendant is in no position to invoke it now, for the reasons above stated. The boy remained his child, legally and naturally. Neither do we find merit in the suggestion that recovery by the plaintiff in the present action will result in her unjust enrichment. She and Braun supported the boy as a part of their family unit, and even if Braun was the breadwinner and plaintiff the homemaker, she presumably suffered commensurate pecuniary injury by defendant's failure to do his duty.
2. Plaintiff's claim for the boy's funeral expenses stands in a different position. The divorce judgment made no provision for such a contingency. The funeral arrangements were made without consulting defendant. It does not clearly appear that plaintiff, as distinguished from Braun, paid the funeral expenses. In the peculiar circumstances of this case we cannot say the trial court was wrong in denying recovery of this item.
3. While the judgment must be reversed, appellant will be denied printing costs in this court because of failure to make timely service of her brief and appendix.
By the Court. — Judgment reversed, with directions to enter judgment for the plaintiff for all accrued and unpaid amounts of support money. No printing costs to be taxed in this court.
The following dissenting opinion on motion for rehearing was filed December 3, 1957: