Opinion
No. 103.
Argued October 27, 1969. —
Decided November 25, 1969.
APPEAL from an order of the circuit court for Milwaukee county: CLARENCE TRAEGER, County Judge of Dodge county, Presiding. Reversed.
For the appellant there were briefs by Kersten McKinnon, attorneys, and Charles J. Kersten of counsel, all of Milwaukee, and oral argument by Charles J. Kersten.
For the respondent there was a brief by Jacobson Jacobson and Donald C. Jacobson, all of Milwaukee, and oral argument by Donald C. Jacobson.
In this divorce action, a judgment of divorce was granted to the plaintiff-wife on April 20, 1967, and was entered on November 8, 1967. The defendant-husband is an attorney, licensed to practice in this state. One child was born of the marriage.
On April 18, 1968, the plaintiff-wife (respondent here) filed and served a notice of appeal to the supreme court on her husband's attorney. The appeal was from the entire judgment except that part which granted an absolute divorce. This appeal was subsequently dismissed on December 10, 1968.
On May 28, 1968, the wife filed an affidavit with the trial court alleging, in part, that defendant (appellant here) was in arrears in his alimony and support payments and that he had remarried in California on or about April 20, 1968, without permission from any court. The respondent-wife asked that the court direct to the appellant an order to show cause why he should not be held in contempt.
On May 29, 1968, Judge TRAEGER ordered the appellant to show cause why he should not be held and adjudged in contempt
". . . for his contumacious disregard of the orders of the court and the judgment of divorce in regard to harassing and molesting the plaintiff and minor child, why said alimony and support arrearage should not be liquidated forthwith in its entirety and why the attorney's fees long past due should not be paid in full . . . ."
A hearing was held on June 20, 1968, on the order to show cause after which Judge TRAEGER made the following finding:
". . . in looking over this picture and the whole matter that came up today, I cannot help but conclude that here we have a lawyer that knows or should know and he presumably does know the obligations of one divorced by way of a judgment of divorce. . . . He has determined to go into another marriage that is going to create further obligations, assuming additional penalties that's going to be incurred, possibly other children. . . . In all these matters, I must make a finding that he is in contempt of court and wilfully so, and I am so finding. . . . I am going to, in finding him in contempt of court in this regard as to support and payments of attorney's fees, sentence him to the County Jail of Milwaukee county for six months, but he will be given leave to purge himself of that sentence of contempt by making payments required under the judgment of divorce of $300 per month during the term of this sentence, . . . . pay into the hands of the clerk of this court, the sum of $750 to apply on the attorney's fees and the balance of those attorney's fees of $750 shall be paid into the hands of the clerk of this court on or before July 31, 1968. Now, in addition to this sentence, there will be a requirement that the defendant shall be confined in the County Jail for a period of three days of this sentence for the violation of the provisions pertaining to his failure to obtain the right to marry . . . ."
Thereafter, appellant purged himself of the contempt finding regarding support and attorney's fees and now appeals from that part of Judge TRAEGER'S determination by which he was sentenced to three days for failing to obtain court permission to remarry.
The first issue raised by appellant in his attack on the trial court's three-day contempt order is as follows: Did the circuit court for Milwaukee county have jurisdiction to hold appellant in contempt for failing to obtain permission to remarry, when at the time of such contempt proceedings an appeal from the judgment of divorce was pending before this court?
Put another way, the issue is whether the lower court had jurisdiction to find appellant in contempt when an appeal from the entire original judgment of divorce, except that part which granted an absolute divorce, was pending before this court.
In order to ensure the orderly administration of justice and to prevent the trial court from doing anything that might adversely affect the rights and interests of the parties to the appeal, the general rule is that an appeal from a judgment or order strips the trial court of jurisdiction with respect to the subject matter of the judgment or order, except as to certain unsubstantial and trivial matters, and the supreme court then has jurisdiction until the determination of the appeal. However, in matters not directly concerned with the appeal but still a part of the case, the trial court may properly retain its jurisdiction.
Estate of Mayer (1966), 29 Wis.2d 497, 139 N.W.2d 111; State ex rel. Freeman Printing Co. v. Luebke (1967), 36 Wis.2d 298, 152 N.W.2d 861. See also Spellman v. Ruhde (1965), 28 Wis.2d 599, 137 N.W.2d 425.
See State ex rel. Freeman Printing Co. v. Luebke, supra, footnote 1.
Here, since the appeal was from the entire judgment of divorce except that part which granted an absolute divorce, it follows that any of the factors related to or connected with this part of the judgment would still be before the trial court.
This brings us to the second issue raised by the appellant as a basis for reversing the trial court's order, namely: Was that part of the judgment of divorce referring to sec. 245.10, Stats., an order of the court which appellant could be found in contempt for ignoring?
Sec. 295.01, Stats., provides, inter alia:
"Every court of record and every judge of such court . . . shall have power to punish by fine and imprisonment, or either, any neglect or violation of duty or any misconduct by which the rights or remedies of a party in an action or proceeding pending or triable in such court . . . may be defeated, impaired, impeded or prejudiced in the following cases:
". . .
"(3) Parties to actions . . . for any other disobedience to any lawful order, judgment or process of such court . . ."
The judgment provided:
"It is further adjudged:
"Where either plaintiff or defendant is obligated herein or by other judgment or court order to support any minor issue (child or children) of the marriage not in his custody, he or she is prohibited by s. 245.10 from marrying again in this state or elsewhere after such judgment becomes effective (final) unless permission to marry is granted by order of either the court of this state which granted such judgment or support order, or the court having divorce jurisdiction in the county of this state where such minor issue (child or children) resides, or where the marriage license application is made."
Thus, the divorce judgment entered by the trial court explained the terms of sec. 245.10, Stats., but it did not specifically order or adjudge that the defendant could not marry again unless permission to marry was granted where the marriage application was made.
We conclude that where no specific order was entered requiring court permission prior to remarriage, the court had no basis for entering its contempt order.
Because of our resolution of the second issue raised by the appellant, it is unnecessary for the court to reach the third issue raised by the appellant, namely: Was the appellant given adequate notice that he could be held in contempt for failing to obtain permission to remarry in California?
By the Court. — Order reversed.
BEILFUSS, J., took no part.