| Wis. | Feb 22, 1910
Tbe circuit court seems to have decreed that appellant should pay, as alimony, to respondent $25 per month and burdened ber property with a lien to secure such payment. Doubtless it was supposed such method of treating tbe complicated property situation, in view of the wholly
The difficulty with the conclusion reached, is that it has no legitimate basis in the law to rest upon. A court of equity has very great power in a purely equity case and not much less, perhaps, in a purely statutory action as far as governed by equitable principles. But such power does not go to the ■extent of violating the written law.
■ The statute (sec. 2364, Stats. 1898) provides for compelling the former husband of a divorced woman to pay her alimony out of his estate and earnings during their joint lives, "but not for compelling a divorced wife to bear such a burden •on account of the husband. Neither the written nor the unwritten law justifies adjudging alimony to the former hus^ hand out of the divorced wife’s property and earnings.
At this point we should say, in passing, we are speaking of ■alimony strictly so called, not division of property. The whole subject having been covered by statute, with the evident purpose of superseding the system at common law, we must find warrant in the written law for the disposition of property ■complained of, or condemn it.
As said by a standard text-writer:
“No instance could occur at common law in which the court would decree alimpny to the husband; and, in the absence of any statute creating such' liability, the wife would not be liable to an action for alimony, although she is enabled by statute to hold and transfer real and personal property in her ■own name and right.” 2 Nelson, Divorce & Sep. § 904.
True, the commentator suggests that under a system permitting a husband’s property to be transferred to the wife ■equitable considerations would seem to justify burdening the same with alimony in favor of the husband. But it is consid
In Somers v. Somers, 39 Kan. 132" court="Kan." date_filed="1888-01-15" href="https://app.midpage.ai/document/somers-v-somers-7887266?utm_source=webapp" opinion_id="7887266">39 Kan. 132, 17 Pac. 841, the court •observed that there was no judicial authority for giving the husband alimony. “The domestic relations will have to be readjusted by the legislature, and an obligation cast upon the wife to support the husband, before such an action can be maintained,” said the court, speaking evidently of an obligation to so support after a decree of permanent separation. It must be remembered in this connection, that permanent alimony, alimony after dissolution of the marriage contract, is wholly a creation of written law. It was not known to the • common or ecclesiastical law.
One might fall into some confusion in studying this subject, as., perhaps some text-writers have, if he did not keep in mind the principles above alluded to, upon reading here and there in elementary works that alimony may be granted in a divorce proceeding in favor of the husband, referring to such cases as Small v. Small, 42 Iowa, 111" court="Iowa" date_filed="1875-12-14" href="https://app.midpage.ai/document/small-v-small-7096629?utm_source=webapp" opinion_id="7096629">42 Iowa, 111; Barnes v. Barnes, 59 Iowa, 456" court="Iowa" date_filed="1882-10-05" href="https://app.midpage.ai/document/barnes-v-barnes-7100173?utm_source=webapp" opinion_id="7100173">59 Iowa, 456, 13 N. W. 441; Garnett v. Garnett, 114 Mass. 347" court="Mass." date_filed="1874-01-15" href="https://app.midpage.ai/document/garnett-v-garnett-6417560?utm_source=webapp" opinion_id="6417560">114 Mass. 347, and some cases on the subject of temporary alimony. Upon examining them it will be found they are grounded on plain statutory provisions. Iowa Code 1873, sec. 2226; Gen. Stats. Mass. 1860, ch. 107, sec. 44. The latter is as follows:
“When a divorce is decreed for any of the causes mentioned in sections 7 and 10 the court granting it may decree alimony to the wife, or any share of her estate in the nature •of alimony to the husband.”
Similar statutes exist in Rhode Island. Pub. Stats. 1882, ch. 167, sec. 12. Also in North Carolina, Washington, and •other states.
True, the basis for alimony is the moral and legal duty as well, of the husband to support his wife, and, formerly, was -without any corresponding legal duty of the wife to support
In view of the foregoing, the law must be declared, thus:: The granting or refusing of permanent alimony in a divorce-action, is wholly referable to the" statutes. There being no-statute in this state authorizing granting of permanent alimony in favor of the husband out of the wife’s estate, the court should not exercise jurisdiction to do so.
It is suggested that the decree may be regarded as a division of property and the judgment sustained on that ground. It would be somewhat difficult to so regard it on principle, and in face of-the adjudications'of this court. The award to the respondent is expressly adjudged for “future support and maintenance.” The conclusion of law upon which the7 decree is based, is in similar language, and is based on the-finding of fact, “that the plaintiff is entitled to an allowance-for support of $25- per month,” as long as he “shall live.”' The allowance has all the' characteristics of alimony and none of a division of property. Sums of money to be paid' at intervals for support of a party to the marriage relation, in-cases demanding alimony, are such and must be treated accordingly. Bacon v. Bacon, 43 Wis. 197" court="Wis." date_filed="1877-08-15" href="https://app.midpage.ai/document/bacon-v-bacon-6602407?utm_source=webapp" opinion_id="6602407">43 Wis. 197. ‘Every provision for support in such a case, whether the same be payable at intervals or in a gross sum, is to be regarded as alimony,' whether so expressly stated or not’ Blake v. Blake, 68 Wis. 303" court="Wis." date_filed="1887-03-01" href="https://app.midpage.ai/document/blake-v-blake-6605559?utm_source=webapp" opinion_id="6605559">68 Wis. 303, 32 N. W. 48; Maxwell v. Sawyer, 90 Wis. 352" court="Wis." date_filed="1895-05-15" href="https://app.midpage.ai/document/maxwell-v-sawyer-8184867?utm_source=webapp" opinion_id="8184867">90 Wis. 352, 63 N. W. 283; Palica v. Palica, 114 Wis. 236" court="Wis." date_filed="1902-04-22" href="https://app.midpage.ai/document/palica-v-palica-8187297?utm_source=webapp" opinion_id="8187297">114 Wis. 236, 90 N. W. 165.
If it were proper to consider the allowance to respondent of. a life annuity of $25 for his support, in connection with the option given appellant to discharge the obligation by paying the sum of $2,000, as a division of property, we would still, in an effort to sustain the judgment, have to deal with the insuperable difficulty that the court in making the division took into consideration property of the appellant which she did not derive from her husband, as part of the community property. Upon no other theory could the result embodied in the decree have been arrived at. Such theory is, in effect, plainly written in the findings. The entire value of all the property was about $6,200. The entire indebtedness of both parties, including what respondent had agreed to pay for his support after he was forced to leave his home, and the amount due for expenses of the litigation, was over $4,000. The value of appellant’s property which she did not derive from her husband, appeared, with reasonable clearness, to be worth not less than $2,000, after deducting one half of the enhancement of the value of the realty by improper expenditure of the money belonging to respondent’s children and her indebtedness to her son of $600. Thus the value of all property of both parties, less their indebtedness, was not more than the sum the court required appellant to pay respondent as a condition of being discharged from the burden of the annuity, such annuity and optional sum being evidently regarded as equivalents. In other words, appellant, in effect, was required by the decree to restore to respondent, for his own or his and his creditors’ benefit, all the property she received from him and substantially all her other property as well. Plow can that be, called a statutory division of property, or a just division from the standpoint of mere arbitration, even
Tbe appellant, with all ber faults, and evidently there were many, still was entitled to ber legal rights and some degree of judicial mercy as well. Doubtless, in tbe mind of tbe learned court, there was very little of tbe latter element and we do not perceive anything in tbe record impairing bis judgment in that regard, but tbe legal right of appellant to tbe full enjoyment of her separate property which she did not derive from ber husband, was overlooked, and tbe legal effect of tbe disposition of property made wás not appreciated.
Tbe only right to make a division of property 'upon judicially dissolving a marriage contract is referable to sec. 2364, Stats. (1898), which provides that:
“The court may finally divide and distribute tbe estate, both real and personal, of tbe husband and so much of tbe estate of tbe wife as shall have been derived from tbe bus-band, between tbe parties and divest and transfer the title of any thereof accordingly, having always due regard to tbe legal and equitable rights of each party, tbe ability of tbe bus-band, tbe special estate of tbe wife, tbe character and situation of tbe parties and all tbe circumstances of tbe case. . .
Thus the jurisdiction affirmatively conferred to distribute tbe wife’s property, is confined to such as she shall have derived from the husband. To render it doubly certain that no attempt would be judicially made to otherwise interfere with a wife’s property, it was provided by sec. 2312, Stats. (1898), that “No judgment” in a divorce action “shall in any way affect tbe right of a wife to tbe possession and control of ber separate property, real or personal, except as provided in this chapter. . . .” Thus it will be seen that tbe judgment here violated tbe affirmative and negative limitation of authority.
Looking to tbe effect of tbe judgment, it is no less bad. If it be considered a division of property, it not only includes tbe wife’s separate property, not derived from ber husband, as part of tbe fund for division, but practically took all there
If it could be held that the allowance of $25 per month is alimony, it would not be indebtedness which could be reached by creditors (Kempster v. Evans, 81 Wis. 247" court="Wis." date_filed="1892-02-02" href="https://app.midpage.ai/document/kempster-v-evans-8183875?utm_source=webapp" opinion_id="8183875">81 Wis. 247, 51 N. W. 327 Daniels v. Lindley, 44 Iowa, 567" court="Iowa" date_filed="1876-10-23" href="https://app.midpage.ai/document/daniels-v-lindley-7097116?utm_source=webapp" opinion_id="7097116">44 Iowa, 567; Jordan v. Westerman, 62 Mich. 170" court="Mich." date_filed="1886-07-01" href="https://app.midpage.ai/document/jordan-v-westerman-7932658?utm_source=webapp" opinion_id="7932658">62 Mich. 170, 28 N. W. 826); but whether support could be secured to respondent to any extent out of his nonexempt property to the prejudice of creditors, is by no means free from doubt.
So in any view we can take of the judgment, it not only violates appellant’s legal and equitable rights, but leaves both parties, as regards property and future maintenance, in a very deplorable situation. •
We are not unmindful of there being precedents where the situation was that of the wife having possessed herself of all the property and being wholly at fault, as in this case, and the court having dealt with the matter by allowing her to keep such property, requiring her to pay the husband semi-annually for life a sum thought to be equivalent to his portion, with an option to convert the property into money and divide it.
We may say, in passing, as an indication of the onerous burden put upon appellant here, that, in the cited case, the circumstances were fully as reprehensible as regards the wife as in this instance. The husband was an old man. The net property was $5,525, or more than twice the net in this case. Yet the burden placed thereon in favor of the husband, as his share of the property, was only one third the burden required to be borne by appellant.
In the foregoing we have not lost sight of the fact that the judgment indebtedness is said in the findings to be for money received by respondent on account of his children, and to amount to $2,400, which can be compromised with the judgment creditors for $1,500, or less. But it seems the finding-is based on a stipulation made in open court that the judgment was entered “for the sum of $2,847.35, May 8, 1908,” and testimony of the attorneys for the judgment creditor, that it could be “settled for the sum of $1,500, if done within a reasonable time and without further costs.” No payment seems to have been made on the judgment. At this time it amounts to about $3,000. The idea that it could be settled for $1,500 rests on mere suggestion of the judgment creditors* attorney as aforesaid. There is no binding obligation to settle the claim for less than the amount due. So it does not seem there is any legitimate basis for the finding that the judgment was only for $2,400, or that the claim could be settled for $1,500, and for an adjustment of the property rights of the parties accordingly.
We are rather forced to the conclusion that the finding belongs to a class, often found troublesome and sometimes fatal to a judgment; those made by judicial sanction of a draft prepared by attorneys for the prevailing party, following
“Experience shows that counsel, the most able, honorable, and conscientious, . . . after the close of a hotly contested ■case, are not in the frame of mind, ordinarily, best suited to ■drafting the findings which must express the judgment of the court. That is no criticism. It is only an acknowledgment of the natural infirmities of the most perfect of us. All are affected, regardless of ability or purity; the difference is in degree. The making of the findings is purely a judicial function.” Harrigan v. Gilchrist, 121 Wis. 127" court="Wis." date_filed="1904-06-10" href="https://app.midpage.ai/document/harrigan-v-gilchrist-8187902?utm_source=webapp" opinion_id="8187902">121 Wis. 127, 396, 99 N. W. 909.
Except so far as sanctioned by custom, I know of no warrant for judicial findings to be made up of suggestions as to form and substance, by prevailing counsel, with or without .general declarations from the judicial head as to conclusions. The calm sea level, so to speak, of the judicial view is required to respond to the spirit of the Code. It should be ■seen that these observations are on the writer’s personal responsibility, but they are the result of surveys from the viewpoints of a practitioner, a circuit judge, and a member of this court. Doubtless where a judge scans proposed findings, eliminating everything not properly a part of such a determination as the statute contemplates, and seeing that all matters •of material fact are covered, the preparation of the paper by •counsel proves helpful and is without objection. A practice in that respect so guarded would greatly aid in the administration of justice and is, perhaps, necessary, especially in case •of a heavy burden of judicial work.
If what has already been said does not fully justify the
There is no separate finding as to tbe value of tbe use of tbe farm during tbe time respondent was practically excluded therefrom, though there was ample evidence to justify one that it amounted to a considerable sum per year. There were sixty acres under cultivation, three horses, eleven cows,, and all accompaniments of a farm property of considerable significance, and no debts to pay, or at least none were paid. In stating the amount of indebtedness of both, parties, not only was the judgment debt of about $3,000 without warrant considered as $1,500, but only $400 additional was taken into consideration, making $1,900. There was omitted nearly $1,500 of the judgment indebtedness, $600 of appellant’s indebtedness, $200 due from respondent for his support, his expenses of the litigation, amounting to at least $150, making the whole sum $4,500. Not only were there these omissions,, but in determining the net property the finding is to the effect that the total gross amount is at least $6,200, leaving as the minimum net $5,300, whereas it will be seen, at a glance, that, on such basis, the net is $4,300, while in view of the other debts disclosed in the finding or the uncontroverted evidence-the net is about $1,900, out of which appellant was required to pay, as before indicated, $2,000 or its equivalent. This is at the expense of repeating somewhat with substantially the-same results as before.
The judgment as to the property must be reversed for the various fatal errors, prejudicial to the legal rights of the appellant, which we have pointed out. It is thought best in remanding the case, to give definite directions as to closing the matter which the reversal will leave open. In doing so-we must take into consideration and give due effect to these particular matters:
(a) Under the facts respondent is not legally or equitably-entitled to any alimony or any part of the appellant’s prop
(b) The undivided one-half of the homestead forty and one other having been deeded to appellant to secure support and nurture of respondent, in his helpless condition, during the balance of his life, and she having defaulted 'in that respect without any reasonable ground therefor and intensified the wrong by, in practical effect, driving him from home to be an object of charity, subject to the wrong being judicially redressed, a situation exists for application of the rule of Glocke, v. Glocke, 113 Wis. 303, 89 N. W. 118, and similar cases, viz.: In case of a conveyance by an old person of his property to another to secure from such other support and attention during the rest of his days, and the consideration wholly failing, without reasonable excuse on the part of the grantee, — a court of equity will, by rules for construction, hold the conveyance to have been made upon condition subsequent and deal with the situation accordingly.
(e) While the court should not endeavor to frame a judgment so as to enable debtors to' escape payment of their just debts, it should exercise care not to deprive them, in a case of this sort, of the benefits of the statutory policy to protect such persons in the enjoyment of sufficient property to reasonably protect them from coming to want.
(d) There is, as appears, ’substantially $4,000 of exempt property, the title to one half of which was in respondent before he made the transfer to appellant, which must be held for naught. Such one-half was then free from any adverse claim and will be again upon the entry of the final judgment, except the $600 mortgage, which mortgage, as between the parties, should be regarded as a lien only on appellant’s interest in the realty, the respondent being protected by the right of subrogation.
(e) The total money investment in the property by appel- .
(f) The incumbrance on the exempt property .of the value of about $4,200 is limited to the $600 of appellant’s indebtedness. The burden on appellant’s half of one other forty consists of the $600 mortgage, and the burden on respondent’s half of the two forties, other than the homestead, consists of such mortgage as to one forty and the judgment upon which there is due more than the entire value.
(g) The appellant having had the use of respondent’s properly for several years, under her unperformed agreement, she should repair that default to some reasonable degree. What will be a just equivalent for such default cannot be definitely ascertained, but it satisfactorily appears that it will take at least $300. It is thought best to fix it at such sum rather than to open the case for further litigation, and to direct that in preparing the final decree such sum shall be adjudged to respondent, with costs heretofore taxed.
(h) The $1,400, which according to the findings was expended in improving the joint property and, in the main, if not wholly, the homestead part, so far as now represented in the one-half interest owned from the first by appellant, is property derived from the husband and subject to division under sec. 2364, Stats. (1898), so in the full settlement of property rights authorized by such section, that should be taken into consideration and, under the facts, should be in greater part, if not all, restored to respondent.
To recapitulate for further definiteness, the judgment appealed from, except as to the decree of divorce and award of costs to respondent, should be reversed.
(1) The transfer of a one-half interest in two forties of land by respondent to appellant should be adjudged of no effect and the cloud on title created thereby should be judicially removed.
(3) The judgment should so provide that, if respondent or any person claiming under him shall pay any part of the $600 mortgage indebtedness to relieve his part of the property from the lien thereon, respondent or such person shall be sub-rogated to the rights of the holder of the mortgage, as to the other one-half, for the purpose of reimbursement.
(4) The decree should adjudge to respondent $300 on account of rents and profits appellant has unjustly appropriated out of his property, thus accomplishing a full equitable restoration of such property to him.
(5) The judgment should deal with the restored situation as above, by divesting appellant of one third of her remaining interest in. the homestead forty and vesting the same in respondent, and by establishing the title, right of possession, and enjoyment of the property in the parties according to their respective interests, due provision being made for sub-rogation to protect respondent from loss on account of the $600 mortgage.
(6) The costs heretofore taxed in the court below in respondent’s favor should be regarded as affirmed, and the costs taxed in this court in appellant’s favor should not be enforced against respondent, otherwise than by offsetting the same against sums adjudged to him in the court below.
If the result creates an unpleasant situation for appellant, she must bear in mind that it has been made necessary by her own bad conduct, and that no other disposition of the property seems practicable which will deal justly and safely with the respondent and at the same time preserve to both their statutory rights as to homestead and other exemptions. If the appellant, having secured by her appeal her legal and equitable rights, now fails to recognize respondent’s rights so
Of course, tbe disposition of property by tbe judgment will not prevent tbe parties by themselves, or through friendly intervention of others, from making a different disposition by contract. Probably they will find it difficult to make a much different disposition, in face of tbe indebtedness, without-danger of sacrificing their statutory exemptions, but tbe way will be open for them to malee such sacrifice, if they see fit, though it is hardly for tbe court to do it of its own motion.
By the Oourt. — The judgment appealed from as to all except tbe dissolution of tbe marriage contract and for costs is reversed, and tbe cause remanded for judgment embodying those parts not reversed and provisions as to property rights-as indicated in this opinion.