There was a sharp conflict in the evidence respecting the conduct of the husband and wife toward each other and toward the children. The evidence relating to the income of the husband and as to the valuation of the property was in dispute. The action was vigorously contested. More than fifteen days were spent in trial. The testimony was voluminous.
The appeal is based on contentions that the evidence does not support the court's findings of cruel and inhuman treatment practiced by the wife toward the husband; that the evidence shows condonation by the husband of the wife's conduct; that the evidence shows a course of conduct by the husband toward the wife which constituted cruel and inhuman treatment, and that mutual recrimination ought to have been found; that the court's disposition of property matters, alimony, and attorney fees was not justified by the evidence. The defendant also maintains that the court ought to have granted her motion for a new trial based upon proof presented by her of association between the husband and another woman; and that the court ought to have granted her motion for a review and modification of the judgment and a vacation of the judgment. The defendant challenges the
In its findings of fact the court determined that the parties are fifty-one years of age, were married in 1926, and have three children, a son born in 1931, a son born in 1935, and a daughter born in 1939. The husband is an osteopathic physician and surgeon who has enjoyed an extensive practice in Madison over a period of years. The wife is a university graduate. Both are in apparent good health and both are capable of earning their own livelihood. They own real estate in Madison consisting of a home valued at $36,500; a commercial and apartment building which, with fixtures and furnishings, is valued at $67,000; and an office building valued at $26,500. The real estate is mortgaged for an amount of approximately $30,000. The household furniture is valued at $6,200. Other furniture in the husband's office and apartment building is valued at $3,450. Additional assets include cash surrender value of the husband's life insurance, $16,283; accounts receivable, $800; insurance claim, $1,136; two automobiles, several horses, and miscellaneous property, $3,000. Liabilities in addition to the real-estate mortgage consist of unsecured bank loans totaling approximately $18,000. The court computed the husband's net worth at $112,000, virtually all of which was accumulated during the married life of the parties. The wife has a separate estate valued at approximately $23,000 which consists of some shares of stock and an inherited one-third interest in a farm in Minnesota. The court found also that there are liabilities contracted by the husband after the action was commenced which were incurred under unusual circumstances, and which
With reference to the conduct of the parties the court found:
"That on several occasions without justifiable cause defendant became violently angry toward plaintiff. That she struck him on several occasions two of such occasions being when he was driving an automobile on a public highway when he was not prepared to avoid the blow.
"That on one occasion without just cause and in a fit of anger she threatened to kill plaintiff with a butcher knife, first chasing him out of the house, then across the yard and off the premises.
"That for several years prior to the starting of the divorce proceedings the parties occupied separate sleeping rooms, and that frequently within the last year or two of such period defendant would enter the room of plaintiff after he had retired, and in a turbulent manner and without just cause berate him in a loud and angry voice, sometimes for hours. Such treatment was calculated to and did cause plaintiff to lose sleep and to become mentally upset and disturbed.
"That for several years prior to the commencement of the divorce action defendant, without just cause, carried on toward plaintiff a course of nagging and faultfinding, which included finding fault with his not being home on time for meals, and calling him over the phone at the office and finding fault with him while he was busy working with patients.
"That the foregoing acts on the part of the defendant have caused the plaintiff great shame, humiliation, and mental anguish, have affected him physically and emotionally and reduced his efficiency in the carrying on of his professional
"In addition to a denial of cruel and inhuman treatment, defendant's answer sets forth certain conduct on the part of plaintiff which allegations are calculated to raise inferences to the effect that the plaintiff was not in a position to appeal to the equitable powers of the court. Because of their nature such allegations must be proved by a clear and satisfactory preponderance of the evidence. The record contains no such proof. Defendant's claim of misconduct on plaintiff's part, which charges were denied by the plaintiff and by Pearl Hustad, the young lady who, the defendant charged, was involved, was not sustained by the evidence. A careful examination of the testimony in the record shows nothing more than suspicions and innuendos in this respect.
"Defendant further claimed that if any acts of cruel and inhuman treatment were committed by her that they were condoned and forgiven by plaintiff as the parties lived as husband and wife and enjoyed marital relations until shortly before the commencement of the divorce action including a trip made by the parties to Atlantic City and New York City in July, 1952. The court finds that there was produced no satisfactory evidence to support such claim and especially as to marital relations between the parties on such trips to Atlantic City and New York City.
"At the trial the children of the parties appeared as witnesses for the plaintiff. It was plain that their attitude toward their mother was bitterly antagonistic. They have been living with their father, and plaintiff. They testified that it was their desire that their father have their custody. He asked that he have their custody. The court finds him a fit and proper person to have such custody."
Under provisions of the judgment an absolute divorce was decreed to the husband. The custody of the minor children was awarded to him. Payment of arrearages for temporary allowances was ordered. The plaintiff was also directed to pay an obligation of $631.21 contracted by the parties. By way of division of estate and in lieu of alimony and attorney fees there was awarded to the defendant a sum
Findings of the trial court are not to be disturbed on appeal unless they are contrary to the great weight and clear preponderance of the evidence. Swazee v. Lee (1951), 259 Wis. 136, 137, 47 N.W.2d 733. Each of the parties presented evidence with respect to the ill-treatment asserted in the pleadings. Each side also produced evidence respecting the husband's income and the valuation of the property. To set forth the detailed evidence upon which the findings of fact are based would unduly prolong this opinion and serve no useful purpose. An examination of the record reveals that in formulating its findings, the trial court carefully considered all of the evidence and construed the same in the light of basic principles that must be employed in determining whether the conduct of a spouse is cruel and inhuman under statutes entitling a divorce upon such ground.
There is no yardstick definition for cruel and inhuman treatment. Each case depends for construction on its own peculiar circumstances. ". . . parties cannot be divorced on the ground of cruelty merely because they live unhappily together from unruly tempers or marital wranglings. Married persons must submit to the ordinary consequences of human infirmities and of unwise mating, and the misconduct which will be ground for a divorce as constituting cruelty must be serious. Mere austerity of temper, petulance of manners, rudeness of language, or even occasional sallies of passion if they do not threaten bodily harm or impairment of health, do not as a general rule amount to cruelty. As has well been said, the husband and wife are bound to exercise greater efforts for removing misapprehension, allaying quarrels, smoothing the road to concord, and effecting reconciliation
The weight of the evidence and the credibility thereof were matters entirely within the province of the court as the trier of the facts. There is an abundance of evidence which the court was entitled to deem credible that supports the findings. It appears, too, as was said in Stone v. Stone (1896), 94 Wis. 28, 30, 68 N. W. 390, that "the trial judge had an opportunity of correctly determining the credibility of the witnesses and the truth of the controversy, which we do not possess." We cannot hold that the findings are contrary to the great weight and clear preponderance of the evidence.
Appellant contends that the husband condoned many acts on her part which may have entitled him to grounds for divorce. Condonation may be defined as forgiveness, express or implied, by one spouse for a breach of a marital duty by the other with the implied condition that the offense shall not be repeated. Condonation is a defense which will bar the condoning spouse of the right thereafter to seek a divorce for the condoned offense, at least until it is revived by subsequent
"While cruel and inhuman treatment may be condoned, there is quite a difference between cruel and inhuman treatment consisting of a long succession of relatively trivial incidents, the whole pattern of which may constitute a ground for divorce, and single acts such as adultery or assault which, taken alone, may constitute grounds for divorce. By hypothesis, the conduct of defendant would not in any of its single instances constitute a ground for divorce. It was the continuity and the persistence of this conduct that ultimately gave plaintiff a cause of action. If marital intercourse or continued living together is to be treated as condonation, then a spouse who hopes for improvement in conduct, and continues marital relations in the hope that things may eventually straighten out, is, by the very act of tolerance, barred from securing a divorce. On the other hand, should the spouse, after one or two instances of such conduct, sue for divorce, he or she would be met with the argument that one or two instances of this sort do not constitute grounds for divorce. The doctrine of condonation was not intended to create such a dilemma. It has no application here. Even if it did have, it would be a conditional forgiveness and subject to the implied condition that the conduct shall not be repeated and that the cause of action shall be revived by conduct much slighter than that which preceded it. Crichton v. Crichton, 73 Wis. 59, 40 N. W. 638; Hickman v. Hickman, 188 Iowa, 697, 176 N. W. 698, 14 A. L. R. 929;
Appellant also contends that the husband's misconduct toward the wife during the period when they lived together is a bar to the right of a divorce on his part, and that the doctrine of recrimination applies. The husband admitted that on occasions he had vigorously taken hold of the wife's hands, and that he had put her to the floor, and that he had shaken her. He maintained that such action was necessary in his own defense. The evidence indicates that once she sustained a sprained finger and that the injury occurred as she was pulling and fighting while he held her hands in self-protection. Considering the provocation, it appears that the husband's conduct in such particulars was excusable. He did not thereby forfeit his right to a divorce. The situation is comparable to that in Schoen v. Schoen (1921), 175 Wis. 20, 40, 183 N. W. 876, where the court observed that in view of the attitude of the wife it was not surprising, if at times, the husband lost control of his temper and behaved in a manner inconsistent with the relations existing between husband and wife. Here, as in that case, it appears that the husband exercised great self-restraint, and that he was willing to do all that might reasonably be expected of him to restore peaceful relations.
Appellant also argues that, whether justified or not, the conduct of the husband in relation to his secretary was open to suspicion. Suspicion implies a belief or opinion as to guilt based upon facts or circumstances which do not amount to proof. 83 C. J. S., Suspicion, p. 927. Valid findings of fact may not be grounded upon suspicion. The trial court properly declined to foundation any finding of impropriety upon such consideration.
With reference to other items claimed as recriminatory, it appears that they pertain principally to the attitude and
Appellant also contends that the court's disposition of property matters, alimony, and attorney fees was not justified by the evidence. We are obliged to agree with that position. The judgment does not provide for the payment of alimony. It directs a distribution of the estate in lieu of alimony. Considering particularly the history of the marital life of the parties, and their financial situation, we are firmly of the opinion that alimony ought to have been awarded.
Although the court found that the wife was capable of supporting herself, it does not appear that she has been engaged in any gainful occupation since the early years of the marriage when they were possessed of but modest means and when he was establishing his professional practice, and when she was employed and presented her earnings to him. She lived with him as his wife for twenty-six years. She bore him three children. Until the time of the separation she assumed in large part the responsibility of the care and training of the children. She kept house for the family. In recent times she managed the apartment building.
The income from her separate estate averages between $700 and $800 per year. Were she able to securely invest at four per cent the balance of the amount awarded to her after paying her legal expenses, it appears that such return would
We are obliged to determine that the financial provision for the wife under the judgment will not maintain her in such manner. In view of the husband's assets and his earning capacity as reflected in his spendings on the family and himself in late years, the provision directed for the wife is inadequate. The trial court observed that the husband had not only accumulated an estate the net worth of which is $112,000, but had also supported an expensive family for whom he provided every luxury and opportunity for travel. It seems to us that an ability to provide as abundantly for a family as is indicated by this record denotes the existence of substantial financial means. The evidence indicates that the husband's financial resources resulted entirely from his income. While his earnings were curtailed in the period immediately before and during the pendency of this litigation in the lower court, nevertheless, as found by the court, his net income exceeded
We find no abuse of discretion in the court's denial of the motion for a new trial based upon allegations of the association between the plaintiff and another woman. Nor do we find error in the court's denial of the motion for a review and modification of the judgment based on grounds of the defendant's excusable neglect because the attorney who represented her at the trial had failed in his duty to her; and for the reason that the plaintiff had committed a fraud upon the court in testifying as he did with respect to his income. The court determined that the charge of improper association was based only on suspicion and innuendo. It found that the evidence, which the wife claims her attorney neglected to submit in connection with the valuation of her own estate, was merely cumulative in nature, and would not have affected a change in the result. The court found further that the claim that a fraud had been committed upon it, rested merely on speculation, and was not sustained by clear, satisfactory, and convincing evidence. It determined that a new trial was not warranted for the reason that the attorney who represented the defendant at the trial had exercised judgment with respect to conducting the inquiry as to the husband's income which was contrary to that which the defendant now considers that the attorney ought to have exercised. The defendant is bound by the discretion which her attorney employed. She has had her day in court with respect to the consideration whereof she now complains. The orders of the court disposing of these motions are grounded upon evidence appearing of record and upon well-established legal principles and may not be disturbed.
It appears that a portion of the testimony of the witnesses Dohren and Hawley was hearsay, and that some of it was of an impeaching nature. The court directed that all of the testimony of these witnesses be stricken. Some of the testimony
The court's memorandum decision provides that the defendant shall have thirty days after the performance of the award by the plaintiff to remove her personal effects and other property from the home. The findings and conclusions and the judgment provide that the defendant shall have thirty days following the entry of judgment in which to remove her personal property. The findings and conclusions take precedence over the memorandum decision. We perceive no error with respect to this item.
The judgment shall be modified so as to strike the provision for the payment of $40,000 to the wife as a full and final division of the estate to her, and to insert in lieu of such provision one that will direct and award to her $25,000 cash as a division of the estate; the payment of $250 per month as permanent alimony, and the payment of $5,000 in cash as a contribution toward her attorney fees and suit money incurred upon the trial, with payment as to these respective items effective as of the date of judgment. The order with respect to the payment of temporary alimony pending the appeal shall be modified so as to exclude the provision that the husband shall be entitled to a credit upon the interest or principal of the sum awarded by way of division of estate. The plaintiff is entitled to a credit for payments made under this order toward the amount due for permanent alimony as
By the Court.—The judgment appealed from is modified so as to provide for a division of estate of $25,000, the payment of alimony of $250 per month, and the payment of $5,000 to the defendant for attorney fees and suit money, with payment as to said items effective as of the date of judgment, in lieu of provision for a division of estate of $40,000 to the defendant and, as so modified, the judgment is affirmed. The orders appealed from are affirmed excepting that the order providing for the payment of temporary alimony pending this appeal shall be modified so as to provide that the plaintiff shall be entitled to no credit upon the amount adjudged as a division of estate for the defendant of any sum paid pursuant to the order for temporary alimony pending the appeal. The plaintiff is entitled to a credit toward payment for permanent alimony from the date of judgment of amounts paid under the order for temporary alimony pending appeal. Cause remanded with directions to modify the judgment and order accordingly.