Cole v. Cole

27 Wis. 531 | Wis. | 1871

Cole, J.

The question whether the husband and wife had voluntarily lived separate for the space of five years next preceding the application for divorce, is one of fact to be settled by the evidence in the cause. And while there is some conflict of testimony upon the point, yet we are inclined to agree with the circuit court in the opinion that the evidence shows that the plaintiff and defendant had for more than five years next preceding the commencement of the suit voluntarily lived entirely separate from each other. The counsel for the defendant insists that the proofs show that the separation did not take place before the 29th of August, 1864. But we think the weight of testimony supports the conclusion of the circuit judge, that the parties separated early in the month of July of that year. We shall not, however, enter into a discussion of the evidence bearing upon this point, but content ourselves with merely stating the inference we have drawn from it.

It is further objected that the evidence shows that the parties had lived separate only a little more than three years after chap. 37, Laws of 1866, took effect; and it is said the separation must continue for five years after the passage of that act. Our construction of the law of 1866 has been, that it applied to separations which began before its passage, and which continued until the application for divorce was made. Phillips v. Phillips, 22 Wis. 256. This law establishes a new ground of divorce, and is based upon the principle that where husband and wife have voluntarily-lived entirely separate for a period of five years, the interest of society and public morality, as well as the good of the parties themselves, will be best promoted by a dissolution of the marriage relation. There is nothing in the language of this statute which would seem to require that the five years’ separation must have occurred after the law took effect, and we must presume that it was intended to apply to present separations as well as future ones.

That the separation was voluntary, at least on the' part of the plaintiff, there is no room to doubt. Indeed, there does not seem to have been, for some time before the final separation, any strong sympathy or affection between the parties, or desire to cohabit together as husband and wife. We therefore think a proper case was made out for a dissolution of the marriage contract.

But we are not entirely satisfied with the judgment assigning alimony. The court gave the defendant the homestead, lots oné and three in block forty-five, and $300, the plaintiff to pay all costs, etc. The homestead was estimated worth $4,000, or $4,500, and the two lots in block forty-five were valued at $500. It appears that the defendant has no separate estate, and the homestead assigned her would afford her but little support, considering the amount she will have to pay out for taxes and repairs upon the property. Indeed, it might not be going too far to assume that a residence situated as this is would be a source of expense, instead of profit, while she retains it. She would not be able to realize much more from the rent than would be necessary to meet the taxes and needful repairs. So that the homestead will be of little account so far as her support is concerned. We think the defendant should have the election either to take the homestead, the two lots given her, and $1,000 in cash, or in lieu thereof $4,000 in money, and convey all the real estate assigned her to the plaintiff. If she should elect to take the $4,000 in money, the order could be so framed that its payment would not he oppressive to the plaintiff. Whatever may be the choice of the defendant, the plaintiff should be required to pay all costs in the circuit court, and all costs in this court, including $100 counsel fee. If the defendant should elect to retain the homestead and the two lots in block forty-five, then the amount of money allowed to her should be increased from $300 to $1,000.

We think it was perfectly just and proper for the court to take into consideration the homestead in arriving at the value of the plaintiff’s estate. For while the title to the homestead was in the defendant, yet the evidence shows that the house was built and the property acquired and paid for by the plaintiff. It was really a part and parcel of his estate.

By the Court. — The judgment of divorce is affirmed. The judgment for alimony is reversed, and the cause remanded with directions to award alimony in accordance with this opinion.