Opinion
January 7, 1960 —
February 2, 1960.
APPEAL from an order of the municipal court of Brown county, circuit court branch: JOHN E. KEHOE, County Judge of Brown county, Presiding. Reversed.
For the appellant there was a brief and oral argument by Walter M. Block of Chicago, Illinois, in pro. per.
For the respondent there was a brief by Cohen Parins of Green Bay, and oral argument by Meyer M. Cohen and Robert J. Parins.
Action to modify a judgment of divorce with respect to plaintiff's rights of visitation with his children and with respect to the amount of money to be paid by him for the support of the children. The judgment of divorce was granted and entered in the state of Texas, where both parties were then residing. By the terms of the judgment the custody of the two minor children of the parties, Sharon Block and Ronald Block, was awarded to the defendant in this action, and the plaintiff herein was ordered to pay the sum of $20 per week for the support, care, education, and maintenance of each of said children. The plaintiff herein was allowed to see and have said children visit with him once each month for a weekend commencing on Friday at 4:30 p. m. and continuing until Sunday at 8 p. m. At the time this action was commenced the defendant was residing in Green Bay with the children and plaintiff stated his residence to be in Kenosha. The matter was heard before Hon. RAYMOND J. RAHR, municipal judge, and on August 1, 1957, a judgment was entered modifying the original divorce judgment in some particulars.
Thereafter, and without benefit of legal advice, the plaintiff drafted a unique document which he entitled "Motion to Vacate Judgment and Bench Warrant and to Grant Change of Venue." In said document he made many intemperate, unwarranted, and untruthful statements concerning Judge RAHR. Had the document been filed by an attorney he would have faced disciplinary action. Judge RAHR, however, exercised remarkable restraint and although he struck a later affidavit of prejudice, which was not timely filed, from the records, he did call in Hon. JOHN D. KEHOE, county judge of Brown county, under the provisions of the Municipal Court Act, to hear all pending motions.
The matter came before Judge KEHOE on motions for reduction of support payments and increased visitation rights on the part of the plaintiff. The defendant sought, through an order to show cause, to have the plaintiff cited for contempt for failure to pay support money, to have his visitation rights discontinued until the arrearage in support money was made up, and to permit the defendant to take the children outside of the state of Wisconsin.
Each party appeared in person and by attorney on June 19, 1959. A conference was held in chambers, at which there was an agreement as to several of the issues. Mr. Block refused to agree to the stipulation that the children could be removed outside the state of Wisconsin unless limited to a distance of 200 or 300 miles from Chicago, because it would be too expensive for him to visit the children if they were moved farther away. Following the conference the parties returned to the courtroom and an attorney for the defendant dictated into the record in open court his understanding of what had been stipulated to in the conference. The defendant agreed but the plaintiff refused to agree. Thereupon an attorney for the defendant moved that an order be entered based on the stipulation that was dictated into the record.
On July 7, 1959, an order was signed by the court and entered in which it was ordered that the defendant was permitted to move the minor children of the parties outside of the state of Wisconsin within the territorial limits of the United States upon certain conditions; that the arrearage owing by the plaintiff for support of the children remain fixed at $3,397.50; that further motions with respect to support money be deferred until such time as plaintiff is gainfully employed; and that in other respects the motions of both parties are denied. The plaintiff appealed from said order.
Actions to modify a divorce judgment are judicial and not administrative proceedings, and are governed by the rules and procedure for conducting judicial proceedings. The orders of a trial court with respect thereto are subject to review and, in order that there may be a review, it is necessary that proceedings be conducted in open court and that the orders be based upon testimony taken by a reporter with witnesses subject to cross-examination. Wunsch v. Wunsch, 248 Wis. 29, 20 N.W.2d 545; Smith v. Smith, 209 Wis. 605, 245 N.W. 644; Shewalter v. Shewalter, 253 Wis. 51, 33 N.W.2d 189. Depositions properly taken are, of course, admissible in divorce actions.
Most of our information as to what took place appears in Judge KEHOE'S memorandum decision. Both in that decision and in open court following the motion for the entry of an order based upon the stipulation, the court stated that he was fully informed as to all of the circumstances as all of the matters pertinent to the motions and order to show cause were discussed and fully presented. The court therefore felt that nothing further could be gained by taking testimony. That is the procedure that was followed and criticized in the Smith Case, supra. The trouble is that there is no record of what transpired in chambers, so there is nothing we can review in order to determine whether or not the court had used proper discretion in entering the order.
To add to the confusion the plaintiff prepared his own brief and attempted to include many extraneous matters that we cannot find in the record. This led the attorneys for the defendant to go outside the record in many of their statements. No bill of exceptions was settled.
The plaintiff presented his own case before this court. For the most part he spoke of matters not in the record. The defendant had moved for a review of a portion of the order. Without a proper record we cannot pass upon any alleged errors.
Under all of the circumstances we decline to pass upon the motion for review but will remand the record to the trial court so that proper proceedings may be had therein and a proper record made.
By the Court. — Order reversed. Cause remanded for further proceedings consistent with this opinion.