174 Wis. 549 | Wis. | 1921
It is contended by defendant’s counsel that under the statutes of limitation, sub. (1), sec. 4220, plaintiff’s petition should have been dismissed; that she was guilty of laches; and that the court was without authority to direct the conveyance of defendant’s homestead to. pay arrears of alimony. We will take up and treat these contentions together..
It is held in the case of Campbell v. Campbell, 37 Wis. 206, 211:
“The measure of support of the wife and of children committed to the care of the wife depends largely on their need, age and other circumstances, and on the ability of the husband. These are all essentially changeable from time to time; and the support of the wife and children in the wife’s care comes within the same policy of continuing authority after divorce, to be exercised from time to time, in view of changes in the premises in which the measure of support rests.”
It is also held in Bacon v. Bacon, 43 Wis. 197, 204:
“Alimony always rested in discretion, was variable and revocable; subject to the continuing authority of the court*554 over it, to be exercised from time to time, in view of changes in the premises on which it had been granted. Campbell v. Campbell, 37 Wis. 206. So sec. 28 [of the chapter on divorce as it then existed], still dealing with alimony in its proper, technical sense, authorizes the revision of the judgment granting it, and such new judgment for it, from time to time afterward, as the court might have originally made. Helden v. Helden, 7 Wis. 296; Williams v. Williams, 29 Wis. 517; S. C. 36 Wis. 362; Campbell v. Campbell, supra; Hopkins v. Hopkins, 40 Wis. 462; Thomas v. Thomas, 41 Wis. 229.”
So that it appears from the foregoing that inasmuch as the judgment for alimony is a continuing judgment, always subject to modification by the court during the life of the parties, the statute of limitations cannot and does not apply.
Sec. 2367, Stats., provides:
“In all cases where alimony or other allowance shall be adjudged to the wife or for the maintenance or education of the children the court may provide that the same shall be paid in such sums and at such times as shall be deemed expedient, and may impose the same as a charge upon any specific real estate of the party liable- or may require sufficient security to be given for the payment thereof according to the judgment; ...”
For a period of forty-four years the plaintiff has made every-effort to support herself and her child. The fact is undisputed that she has not had an easy life of it and that she has been compelled, in addition to performing hard menial labor, to depend in a degree upon the aid and assistance offered to her by her daughter and son-in-law. During all these years, apparently, no demand was made for the payment of the arrears in alimony and no application was made to the court to enforce such payment. It evidently appears that the defendant relied upon the advice given to him by his attorney, which was to the effect that he did not need to pay any further attention to the payment of alimony, and the plaintiff evidently construed the action of the court
It can also' be said in this case, as was said .in Campbell v. Campbell, 37 Wis. 206:
“The appellant seems to have thriven since he escaped from the expense of maintaining the respondent and their child. His inexpensive life and his failure to pay even the pittance allowed by the judgment of divorce, no doubt aided him in acquiring and keeping his present estate. ...”
“Laches in a general sense is the neglect, for an unreasonable and unexplained length of time, under circumstances permitting ■ diligence, to do what in law should have been done.” 21 Corp. Jur. p. 210, § 211.
“A stale demand or claim in its proper sense is one that has for a long time remained unasserted; one that is first asserted after an unexplained delay of such great length as to render it difficult or impossible for the court to ascertain the truth of the matters in controversy and do justice between the parties,” etc.
“Staleness of claim necessarily implies great lapse of time.” 21 Corp. Jur. p. 210, § 211.
While the defendant has not accumulated a large amount of property, it appears from the record that his accumulations are sufficient to reasonably provide for him during the rest of his life. Besides, he is the recipient of a pension from the government of $30 a month, which it is claimed by counsel for the plaintiff has recently been increased to $50 a month.
While the failure on the part of the defendant to comply with the judgment of the court is inexcusable, we can find little excuse for the plaintiff’s long delay in asserting her rights under the judgment. Had she insisted upon her rights from time to time, the life of the defendant undoubtedly would have been so regulated as to make proper
Under the circumstances we consider it inequitable to enforce the judgment as it now stands, and under the decision in Campbell v. Campbell, 37 Wis. 206, and Bacon v. Bacon, 43 Wis. 197, would advise a revision and modification of this judgment, in view of the changed and altered circumstances now existing, under and pursuant to which the plaintiff be adjudged a reasonable amount in lieu of past-due alimony, with a provision under, sec. 2367, Stats., that the allowance when so made may be imposed as a charge upon the real estate of the defendant.'
Sec. 2367 clearly authorizes the court to impose a charge or. lien upon the real estate of the defendant, whether it be a homestead or not. Schultz v. Schultz, 133 Wis. 125, 113 N. W. 445.
Inasmuch as the value of the defendant’s property has not been definitely fixed and determined, it is also suggested that, upon the record being returned to the circuit court, further proceedings be had with the view of definitely fixing the value of such property.
In view of what has been said, the order of the circuit court is reversed, with directions to take such further proceedings in the premises as are indicated in this opinion.
By the Court. — It is so ordered.
