Blake v. Blake
43 N.W. 144
Wis.
1889
Check Treatment

The following opinion was filed September 24, 1889:

Cassoday, J.

It is сlaimed, in effect, that the court refused to find that prior to the original judgment the plaintiff, with full information as to thе amount and value of the defendant’s property, stipulated and agreed that the $2,000 named in that judgment should bе “ as a final distribution of all the defendant’s property ” as well as in full for her dower interest in his lands. It is only necessary here to *342say that such stipulation and agreement was before the court and fully determined by the original findings and judgment, and that notwithstanding such determination this court held that such allowance was nothing more than alimony, and in nо sense “ a final division ” of the defendant’s property, as mentioned in the ‍‌‌‌​​‌​​‌​​‌​‌‌​‌‌​‌​‌‌​‌​‌​​‌​‌​​‌​​‌​​‌‌​‌​‌‌​‍last clause of sec. 2369, R. S., and as provided for in sec. 2364. 68 Wis. 303. That adjudication affirmed an order granting a motion to modify the original judgment and directing the taking of proofs and a hearing as to the further or additional judgment to be rendered therein. With such an adjudiсation in this case, we cannot regard such stipulation and agreement between the parties before the original judgment as conclusive upon the court, nor as in any way barring the court from determining the matters directed in the order, upon the proofs taken and hearing had, with “due regard to the legal and equitablе rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties, and all the circumstances of the case.” Sec. 2364, R. S.

It is further claimed that, as thе original judgment was simply for alimony, the power of the court in any subsequent adjudication was limited by statute to а mere modi.fication as to the amount of such alimony, and hence could not, by way of modification, extend to a final division of the defendant’s property. This contention is conceded to be in conflict with thе reasoning of Ryan, C. J., in Campbell v. Campbell, 37 Wis. 206. In that case it was in effect said that all the estate and income of the husband, whenеver and however acquired, actually possessed and enjoyed ‍‌‌‌​​‌​​‌​​‌​‌‌​‌‌​‌​‌‌​‌​‌​​‌​‌​​‌​​‌​​‌‌​‌​‌‌​‍by him at the time of a subsequent judgment for alimony or a subsequent judgment for division of estate, is subject to such subsequent judgment. 37 Wis. 219. We are not aware that this doсtrine has ever been questioned by this court. On the contrary, it has frequently been sanctioned. *343Hopkins v. Hopkins, 40 Wis. 462; Coad v. Coad, 41 Wis. 23; Thomas v. Thomas, 41 Wis. 229; Bacon v. Bacon, 43 Wis. 197. “The courts of this state,” as claimed by counsel, “ only have such powers in such actions as are given to them by statute.” Clarke v. Burke, 65 Wis. 361. It is on this thеory that counsel contend that the trial court exceeded the powers given to it by statute in granting a “finаl division and ‍‌‌‌​​‌​​‌​​‌​‌‌​‌‌​‌​‌‌​‌​‌​​‌​‌​​‌​​‌​​‌‌​‌​‌‌​‍distribution of the estate.” The statute authorizes the court,- in the first instance, to adjudge to the wife alimony out of her husband’s “estate” or to “finally divide and distribute the estate.” Sec. 2364, R. S. Of course, where there is a final division in the first instance, there is no good ground for a subsеquent modification, and hence it is forbidden. Sec. 2369, R. S.; Hopkins v. Hopkins, 40 Wis. 466. But where, in the first instance, alimony is adjudged to the wife, whether payable in limited amounts from time to time, or in gross, the court is expressly authorized, “from time to time, on the pеtition of either of the parties,” not only to “ revise and alter such judgment respecting the amount of such alimony or allowance, and the payment thereof,” but to “ make any judgment respecting any of the said matters which such court might have made in the original action.” Sec. 2369, R. S. These last words are certainly broad enough to authorize ‍‌‌‌​​‌​​‌​​‌​‌‌​‌‌​‌​‌‌​‌​‌​​‌​‌​​‌​​‌​​‌‌​‌​‌‌​‍a final division of the “ estate” in such subsequent judgment. Bacon v. Bacon, 43 Wis. 204. In speaking of sec. 2364, R. S., Ryan, C. J., said, in Campbell v. Campbell, 37 Wis. 218, that “ the words estate and alimony in the seсtion are not only associated within the rule, noscitur a sociis, to be understood in a kindred sense; they are correlatives, dependent one on the other for effect, and should be understood in a corresponding sense.” Sinсe the statute expressly gives to the trial court jurisdiction and authority to make such final division of the husband’s estate, it would be a finical construction of the language emplojmd to hold that such power to so *344divide the estate is limited to the original judgment. We must hold that the ‍‌‌‌​​‌​​‌​​‌​‌‌​‌‌​‌​‌‌​‌​‌​​‌​‌​​‌​​‌​​‌‌​‌​‌‌​‍modifying of the judgment before us is not objectionable upоn that ground.

It is claimed that the amount allo/ved is larger than it should have been in view of the evidence. The court was undoubtedly bound to have some regal’d to the condition of things at the time of the original judgment, as well as subsequently; but it appears from the findings that the defendant owns unincumbered and productive real estate оf more than six times the value of the amount allowed. More than seven years have elapsed since the original judgment, and in the mean time the plaintiff has received comparatively but little, and her efforts to obtain any have been resisted at every step. The condition of the husband makes it for the interest of аll that the matter should now be finally disposed of. The trial court must necessarily have some latitude of judgment in suсh matters. The findings seem to be substantially sustained by the evidence.

By the Court.— The judgment of the circuit court is affirmed; but with leave to the appellant to apply to the trial court for a modification of the judgment as to thе time or times for the payment of the same.

The judgment of the circuit court having been affirmed on September 24, 1889, without the leave above given to apply for a modification thereof, the appellаnt moved for a rehearing for the purpose of asking this court “ to direct the circuit court to so modify thе terms and time of payment as not to be burdensome upon the defendant.”

The motion for a rehearing was denied December 13, 1889, but leave was given, as above expressed, to apply to the trial court for a modification of the judgment.