
    McCabe, Appellant, vs. McCabe, Respondent.
    
      October 25
    
    November 14, 1905.
    
    (1, 2) Appeal: Orders: Return of cleric. (3-5) Divorce: Custody of minor children: Power of court.
    
    1. If, on appeal from an order, the return to' this court does not comply with sec. 3050, Stats. 1898, the appeal must be dismissed unless some fatal defect appears upon the face of the order, or unless some recital therein identifies with reasonable certainty the papers on which it was based.
    [2. Whether an order stating that the hearing which resulted in its entry was on the “original records and all files in the case, as well as on the petition of the defendant and her affidavit,” sufficiently identifies, as having been used on the motion, certain affidavits included in the return which appear, by indorsements thereon, to have been on file on the day the order was made, — - not determined.]
    3. In a divorce action the court has no other power in respect to the custody of minor children than that given by sec. 2362, Stats. 1898.
    4. Under sec. 2362, Stats. 1898, the court cannot award the care and custody of children to one parent and at the same time provide that they shall remain with a third person — in this case their grandmother.
    5. Even an understanding between the parties, at the time the divorce judgment was entered, that the children might remain-with a third person would not warrant a subsequent modification of the judgment by a provision in accordance with such understanding, especially if the party to whom the judgment gave the care and custody objected to such modification.
    Appeal from an order of the circuit court for Winnebago county: Geo. W. BubNELL, Circuit Judge.
    
      Reversed.
    
    Appeal from an order modifying a decree entered in the action October 17, 1903, respecting the care and custody of the minor children of the parties. There were two children— Otis, aged nine years, and Marian, seven years of age. Custody of both was by the decree unqualifiedly awarded to the plaintiff. Within one year thereafter defendant petitioned the court to so change the decree as to1 require the children to. reside with Mrs. N. G. Clifford, defendant’s mother, under such regulations as to accord each parent at all reasonable-times opportunity to visit and associate with them, and to-mate such other modification of the judgment in relation to the children as might seem equitable. The prayer of the petitioner was supported by sworn statements to this effect: Plaintiff was awarded the care and custody of the children-by reason of a stipulation made between the parties to the cause to the effect that the children should be kept at the home-of defendant’s mother, plaintiff paying $20 per month for their care and maintenance,'’ and each parent having the right to visit them at all reasonable times. Plaintiff has defaulted in that regard by failing to pay the sum of $30 of the agreed monthly instalments. He has further failed, in that August 13, 1904, he visited Mrs. Clifford’s home while under the influence of liquor and forcibly took therefrom the younger child, conveying her to the home of his mother, and thereafter refused defendant permission to see such child. A few days after such taking he commenced judicial proceedings against Mrs. Clifford to obtain possession of the-other child. He is insolvent and customarily squanders the greater part of" his-earnings in dissipation. Mrs. Clifford is a suitable person to bring up the children. She has had their exclusive care since their birth. She has acquired a home in a good neighborhood in the city of Oshkosh for the express purpose of providing a suitable residence for herself and the children. Defendant earns her own living. She is a professional singer and makes her home with her mother when not necessarily out of the city of Oshkosh on professional engagements. She has since the entry of the judgment of divorce, in the main,, clothed the children.
    Such proceedings were had in respect to the petition that an order was entered reciting that it was granted on the record and files in the case, the petition, and the defendant’s affidavit-Tbe affidavit does not add anything to tbe facts set forth in the petition. The certificate of the clerk of the circuit court attached to the return to this court states that such return contains “the original records necessary to the appeal pursuant ■to Rule VII-J filed and of record in my office in the above entitled cause.” The order recites that at the time the judgment of divorce was entered, plaintiff was given the care and •custody of the children because of an agreement between the parties that they were to- be left at the home of Mrs. N. G-. Clifford, their grandmother, and under her care for the present, who had cared for them and nursed them from birth, and that plaintiff, would pay $20 per month for their support, both plaintiff and defendant to have the right at all reasonable times to see and visit them; that a provision to that effect was omitted from the judgment because at the time of •its entry the children were residing with Mrs. Clifford under an arrangement between her and the plaintiff; that the welfare of the children will be best promoted by said arrangement being carried out. Eor those reasons the court ordered as follows:
    “That the judgment made herein on the 17th day of October, A. D. 1903, be and.the same is hereby modified and revised as follows:
    “First, that the legal care and custody of said minor children, Otis McCabe and Marian McCabe, remain and continue with the plaintiff Carl B. McCabe, always provided that the said plaintiff shall keep both at the home of Mrs. N. G-. •Clifford in the city of Oshkosh, Wisconsin, where they have •been kept and eared for since their birth, for the time being and until the further order of the court.
    “Second, that beginning September 1, 1904, the plaintiff and defendant pay the sum of $20 monthly for the support and maintenance of said children, each paying one half of said sum, to be paid on or before the 10th day of each month to the said Mrs. N. G. Clifford.
    “Third, that both the plaintiff and defendant be and hereby nre permitted to see and visit said children at all reasonable times, take' them out on suitable occasions, and said children shall be permitted and allowed to visit plaintiff on Sundays and holidays, at such suitable and proper places as he may designate, and at such other reasonable times as plaintiff may require. Such visits are not to interfere, however, with the school work of either of said children.”
    The plaintiff appeals from such order.
    Eor the appellant the cause was submitted on the brief of F. V. McManamy.
    
    For the respondent there was a brief by Bouch & Hilton, and oral argument by John F. Kluwin.
    
   Maeshall, J.

The appeal papers treat the action of the-circuit court complained of as an order. Whether it is that or a judgment is not free from all doubt. The return of the: clerk does not comply with sec. 3050, Stats. 1898, as regards: what it should contain in case of an appeal from an order. If it be such an appeal a dismissal thereof would be required in the absence of some fatal defect appearing* on the face of' the order or some recitals appearing therein identifying with reasonable certainty the papers upon which it was based. Glover v. Wells & M. G. Co. 93 Wis. 13, 66 N. W. 799; Tenney v. Madison, 99 Wis. 539, 75 N. W. 979; Ryan v. Philippi, 108 Wis. 254, 83 N. W. 1103; Milwaukee Trust Co. v. Sherwin, 121 Wis. 468, 98 N. W. 223, 99 N. W. 229.

The so-called order may reasonably be called one in fact and will be, since no point on behalf of respondent was raised' in respect to the matter. It would be well for counsel interested for an appellant to see that the clerk of the circuit court-makes his return strictly in accordance with sec. 3050, Stats. 1898, taking particular notice of the distinction between the return to be made in case of a judgment and that in case of' an order. The order here states that the hearing which resulted in its entry was on the “original records and all files in the case as well as on the petition of the defendant and her •affidavit.” A claim was made on tbe argument tbat several affidavits in tbe return were not rised upon tbe motion, and were improperly placed on file. They are not identified by tbe order as having been so used other than by a general reference to all tbe files in connection with tbe fact, shown by appropriate indorsements, tbat they were on file on tbe day tbe order was granted. Whether tbat sufficiently identifies them ■or not does not seem to be material since tbe order is fatally defective upon its face, as will be hereafter seen.

Tbe case is ruled in favor of tbe appellant by tbe general doctrine tbat where jurisdiction in divorce matters is statutory tbe court possessing tbe same has no power exercisable in a divorce action as regards tbe custody of minor children of tbe parties other than tbat found in tbe written 'law. Hopkins v. Hopkins, 39 Wis. 167. Such jurisdiction is lodged in ■our circuit courts by legislative grant. Boehler v. Boehler, 125 Wis. 627, 104 N. W. 840. Tbe authority as to minor •children is expressed in these words:

“The court may make such further provisions therein as it ■shall deem just and proper concerning tbe care, custody, maintenance and education of tbe minor children of tbe parties, and may determine with which of tbe parties tbe children, or any of them, shall remain.” Sec. 2362, Stats. 1898.'

It will be observed tbat while tbe court may make provision •concerning tbe “care, custody, maintenance and education of tbe children” tbe authority is to be exercised with reference to tbe limitation of power as to determining with whom tbe 'children shall remain. Tbat is confined to a choice between tbe parents. Tbe meaning of tbe words “with which of tbe parties tbe children, or any of them, shall remain” is unmistakable. To award legal care and custody of children to one parent coupled with a requirement tbat they shall remain with some person not standing in tbe parental relation to them, and with a provision limiting tbe conduct of tbat one in a manner entirely inconsistent witb tbe exercise of parental control, as was done in tbis case, .is a clear -usurpation.

Tbe learned trial court seems to bave supposed that tbe 'duty of care and custody might by mere words be given to one parent while actually given to one not standing in tbe relation. Such a disposition of tbe children is not a response to tbe statute even in form. It violates its letter and spirit. Tbe statute clearly contemplates that tbe children shall remain witb one of tbe parents. Welch v. Welch, 33 Wis. 534, must not be read as sanctioning removal by tbe divorce judgment of tbe children of tbe parties from parental control. Tbe order complained of here not only provides that tbe children shall not remain witb either of tbe parents, but it in effect removes them from every semblance of parental control. Appellant was in terms given tbe legal care and custody of them, but every element of authority consistent witb such care and custody was taken from him. They were not permitted to bave their home witb him, and even for him to visit them was made permissive and conditional.

Tbe learned court evidently thought tbe understanding existing between tbe parents at tbe time of tbe entry of tbe divorce judgment, that tbe children might remain witb their grandmother, warranted a modification of tbe judgment complained of notwithstanding appellant’s objection thereto. We think otherwise. If be consented at one time to surrender parental control of bis children, it did not confer jurisdiction on tbe court beyond that given by tbe statute, especially after such consent was withdrawn. Tbe trial court should, as tbe statute plainly contemplates in such cases, bave provided for tbe children’s remaining witb one or tbe other of tbe parents, or one of tbe children witb tbe father and tbe other witb tbe mother, and'abstained from fencing such provision about witb nullifying restrictions.

By the Court — The modification of tbe divorce judgment appealed from is reversed.  