This is an appeal from an order vacating judgment in a divorce action by plaintiff-wife (hereinafter "plaintiff") against her husband (hereinafter "defendant") and from that part of the judgment which determined that the defendant was not the natural father of plaintiff's child. The child is the appellant and will hereinafter be referred to as the "child."

Plaintiff's complaint, filed June 19, 1969, sets forth that the parties were duly married on February 22, 1965, and that one child has been born as a result of this marriage, a boy, born October 7, 1960. The complaint charges the defendant with a course of cruel and inhuman treatment against plaintiff and prays for an absolute judgment of divorce, together with custody of the minor child and support for him.

The defendant failed to either answer or demur to plaintiff's complaint and the matter was set for hearing on November 12, 1969, before Circuit Judge WILLIAM R. MOSER. Just after the commencement of the hearing, the trial judge advised the defendant that he was entitled to have an attorney represent him at all stages of the proceeding, but the defendant responded that he did not wish to have an attorney or to contest the divorce action.

On direct examination, plaintiff was asked whether any children have been born as a result of the marriage and she responded, "We have one." born October 7, 1960. Similarly, on direct examination by the family court commissioner, plaintiff had the same question put to her again. "Ma'am, I note that the child was born four and a half years before the marriage. Is this the child of your husband?" Again, she answered "Yes." Later, on examination of the defendant by the family court commissioner, the following dialogue took place: ". . . [Sir], you heard the testimony regarding your son . . . is this in fact your son?" "Yes, Sir."

The trial court granted a divorce to the plaintiff and found as a fact that the child was a child of the marriage. Likewise, the court orally ordered the defendant to maintain the child as a beneficiary on both his life and health insurance policies, and as a contingent beneficiary of his pension, until the child reaches the age of twenty-one, and further that he pay $25 per week in child support until his $161 arrearage was made up and, thereafter, $23 per week. Through the period of separation, the defendant had been visiting the child on weekends and these visitations were continued by order of the court. These determinations all became part of the formal findings of fact and conclusions of law and part of the original judgment of divorce entered on February 2, 1970. The defendant did not appeal from that judgment.

On September 16, 1970, Judge MOSER signed an order to show cause why an order should not be entered reopening so much of the judgment of divorce as related to the paternity of the child. As justification for the order, defendant's affidavit states:

"That at the time of the said divorce hearing and the time when the court determined the legal rights and status of the parties, your affiant was confused and upset, without counsel and misinformed, and for this reason did not raise the said issue of paternity of the said child."

Plaintiff brought a countermotion, asking that the defendant be found in contempt for his failure to pay child support and contribution toward her attorney's fee and that the court deny defendant's motion for a readjudication of the paternity issue. On October 15, 1970, the court ordered that the child be made a party to the proceedings, and that Attorney Stephen W. Hayes be appointed as the child's guardian ad litem.

After a hearing on January 11, 1971, Circuit Judge MAX RASKIN ordered that the judgment of divorce entered February 2, 1970, be vacated in all respects and that the defendant be permitted to file an answer and give testimony contesting the paternity of the child, and his duty to support it. Judge RASKIN reasoned that the court had not made a complete finding as to the paternity of the child at the first hearing and that the defendant should have been advised of his duties and obligations which arose from admitting that the child was his, much the way it is done in the reception of a guilty plea in a criminal case.

The subsequent hearing on the question of paternity disclosed that at the time the parties were married, the plaintiff had a four-year-old son, and it is undisputed that the defendant is not the child's natural father. It was further disclosed that following their marriage, plaintiff and defendant were interested in having the child's last name changed to their own and to that end, defendant asked the plaintiff to call the courthouse to see how the child could be legitimized. Subsequently, the defendant signed a legitimation certificate which was necessary to procure a change in the child's birth certificate and at the time the divorce was commenced, the child's birth certificate recited he was born October 7, 1960, listing plaintiff as his mother and defendant as his father. The defendant testified that he and the child had a normal relationship of father and son for virtually the entire period of the marriage, and that although the child was aware that the defendant was not his natural father, both the plaintiff and the defendant held the child out to the rest of the world to be the legitimate product of their marriage.

Following the hearing on paternity, the trial court entered its findings of fact and conclusions of law which resulted in the judgment of July 30, 1971. The judgment provided that the defendant pay accumulated arrearages of $677 and that all other arrearages be canceled. It further provided that the defendant was not the natural father of the child and, therefore, not liable for his support and that the judgment of divorce was herein reinstated and in all respects, nunc pro tunc. Although the plaintiff has chosen not to dispute the order vacating the original judgment of February 2, 1970, and the judgment entered on July 30, 1971, the child, by his guardian ad litem, has appealed.

HANLEY, J.

Two issues are presented on this appeal.

1. Was the question of the child's paternity res judicata because the defendant failed to challenge it at the original divorce proceeding; and

2. Assuming the question of paternity was not res judicata, should the defendant be estopped from denying that he is the natural father of the child?

This court is faced with the unique situation of a person initially claiming in court and under oath that a child is his, and then some eight months later challenging this child's legitimacy when he decides that it is no longer to his advantage to pay the child's support. The child contends that the question of his paternity was res judicata and that this should have acted to bar the trial court from vacating judgment. Nowhere in his brief does defendant address himself to the question of whether the issue of the child's paternity is res judicata; being content to rely solely on whether the trial court abused its discretion in vacating the February 2, 1970, judgment. It is clear not only from rulings of this court, but also from the numerous other jurisdictions which have considered the question, that the issue of the paternity of minor children becomes res judicata between the parties under the original divorce decree and that it is error for a trial court to subsequently either vacate or modify the original judgment on the grounds that one of the alleged parents, who heretofore stood mute on the question of paternity, has now had a change of heart.

This court was faced with a similar situation in the case of Limberg v. Limberg (1960), 10 Wis.2d 63, 102 N.W.2d 103. In Limberg, just like in the case at bar, the trial court made a finding that the child which the plaintiff wife was pregnant with was a child of the marriage. Two years after the judgment for divorce, the defendant moved the court to order blood tests for his former wife, the child and himself, and the court granted his motion. In reversing the action of the trial court in ordering the blood tests, this court, at pages 67 and 68, stated:

". . . The order of January 2, 1958, referring to the children of the parties necessarily included Brian and is an indication that the trial court had so determined by the findings and judgment.

"Since there was a prior adjudication of the issue raised upon the trial, the defendant is now estopped from attempting to relitigate the same issue. Whether it be res judicata or estoppel by judgment is unnecessary for us to determine. . . . Since the defendant is estopped by the prior adjudication of the issue, the trial court was in error in issuing the order. Judgments of divorce will have no finality if parties are permitted to attempt to retry issues two years after a judgment has been entered.

". . .

"The defendant had ample opportunity during the trial to ask for an adjournment thereof until the child had been born and then to request blood tests. . . . He is too late now to attempt to try a new approach to the old problem that was determined by the judgment."

Although the question of paternity was contested in the original trial in Limberg, cases from other jurisdictions hold that regardless of whether the issue was contested, the result is nevertheless the same.

The case of Baum v. Baum (1969), 20 Mich. App. 68, 173 N.W.2d 744, represents a case much like the one at bar. In Baum the wife sued her husband for divorce alleging that the parties had a child born of the marriage. The husband appeared, consented to the judgment of divorce which provided that the wife was to have custody of the child together with support. When the wife sought back support payments, the defendant answered, alleging that his wife had falsified their marriage date in her complaint, and that the child was really that of her former husband. The trial court vacated the judgment and the Michigan court reversed on appeal stating:

"The defendant raises the question of parenthood in this cause. Res judicata bars him from disestablishing his paternity. The support order, although uncontested, constitutes an adjudication of paternity in regard to defendant's duty of support. . . .

"It becomes apparent to this Court that he now seeks to avoid support responsibility by this new stand; and it also appears through his claim of fraud, which he was part of, that he seeks to invalidate not only his parental obligations, but also his second marriage, which would be void if the trial court here is affirmed. He had an opportunity to litigate the issue and was clearly aware of the infirmity in the complaint; and, therefore should not now be allowed to complain." (Emphasis added.)

The rule which denies a party the opportunity to relitigate issues of paternity after he has passively sat by throughout the original divorce proceeding likewise finds support in the numerous other courts which have considered the question. Adoption of Stroope (1965), 232 Cal.App.2d 581, 43 Cal.Rptr. 40; Sorenson v. Sorenson (1963), 254 Iowa 817, 119 N.W.2d 129; Johns v. Johns (1964), 64 Wn.2d 696, 393 P.2d 948; Arnold v. Arnold (1952), 207 Okla. 352, 249 P.2d 734; Washington v. Washington (1959), 170 Cal.App.2d 652, 339 P.2d 169.

From the record, it would appear that the trial court's conclusion that there was not a complete finding as to the paternity of the child at the first hearing is without factual foundation. Plaintiff's complaint specifically provided that there was one child of the marriage. Both parties personally appeared at the hearing and on at least three occasions during the examinations of the parties by plaintiff's counsel and the family court commissioner, it was stated by both parties that the child was the natural child of the parties and born to the marriage. Based upon this, Judge MOSER made a clear and unambiguous finding of fact that the child was "issue of said marriage" and the subsequent judgment provided that the husband was to pay for the child's support.

Also without factual support is defendant's assertion and the trial court's conclusion that the defendant was not aware of the ramifications which followed his recognition that the child was his. Pursuant to an order filed at the very outset of the action, the defendant had been, with reasonable regularity, paying child support prior to the actual divorce proceeding. At the original hearing, Judge MOSER specifically informed the defendant of his continuing liability to pay child support and also ordered him to continue the child as a beneficiary on both his life and health insurance and as a contingent beneficiary of his pension rights until he reaches the age of twenty-one. The conscious choice not to be represented by counsel in a divorce proceeding has never been considered by this court as a tenable excuse for "sleeping on one's rights." Holschbach v. Holschbach (1966), 30 Wis.2d 366, 371, 141 N.W.2d 214; Wesolowski v. Wesolowski (1966), 30 Wis.2d 15, 19, 139 N.W.2d 660.

Although the trial judge did not specifically cite the statutory authority he was relying on to vacate the judgment, defendant argues that his motion to vacate was brought pursuant to sec. 247.37(2), Stats. As this section clearly indicates, however, the trial court's discretion is limited solely to matters affecting "the marital status of the parties" and the question of paternity is not embraced within the meaning of the statute. As the language of sec. 247.25 has been interpreted, it, too, is of little help to defendant. This statute allows judgments to be modified indefinitely but only for consideration of the care, custody, maintenance and education of the children. It does not provide for modification of the judgment as to the paternity of the children.

"The very language of the statute presupposes that the children referred to are the children of the parties. Revisions under that statute are based upon a change in the circumstances of the parents or of their children. The continuing jurisdiction of the trial court is limited to the purposes therein stated, . . ." Limberg v. Limberg, supra, at page 68.

The only statutory provision upon which the defendant could have petitioned the court for vacation of its judgment was sec. 269.46(1), Stats. We think that the defendant's failure to raise the issue of the child's paternity at the original divorce hearing was in no way "excusable neglect" which is defined as "`. . . neglect through being misled or in spite of reasonable precautions or due to circumstances beyond control of the party. It does not include neglect which consists in a total sleeping on one's rights.'" Padek v. Thornton (1958), 3 Wis.2d 334, 338, 88 N.W.2d 316.

We conclude that the issue of paternity of the minor child is res judicata [and that] no grounds for vacating the divorce judgment were presented by defendant which were sufficient to justify a reopening of the original judgment. Therefore, the order of January 11, 1971, and that part of the judgment appealed from must be reversed and the cause remanded.

By the Court. — The order and that part of the judgment appealed from is reversed. Cause remanded with directions to reinstate the original judgment of February 2, 1970.

HANLEY, J.

The following memorandum was filed on May 3, 1973.

PER CURIAM. (on motion for rehearing.)

At page 446 of our original opinion, it is stated:

"We conclude that the issue of paternity of the minor child is res judicata and that no grounds for vacating the divorce judgment were presented by defendant which were sufficient to justify a reopening of the original judgment." (Emphasis added.)

For purposes of clarification only, the word "since" is substituted for the words "and that."

The motion for rehearing is denied, without costs.