217 Wis. 355 | Wis. | 1935
The following opinion was filed January 8, 1935 :
The grounds upon which a divorce was awarded in this case were cruel and inhuman treatment of
It is apparent from the nature of the questions involved that the function of this court is almost solely to examine the evidence for the purpose of ascertaining whether the findings of the trial court are sustained by the evidence. Some notion of the difficulties which this entails may be had when it is said that this court is faced with a record of more than three thousand pages, a printed case of upwards of nine hundred pages, and with briefs totaling nearly five hundred pages. It is extremely difficult adequately to discuss the facts within the compass of a useful judicial opinion.
A vigorous attack has been made upon the findings of the trial court that defendant was guilty of cruel and inhuman treatment toward the plaintiff. Defendant contends that the evidence purporting to sustain them is indefinite as to the time or duration of the conduct, and that the acts charged are qualitatively trivial and of so little consequence that they cannot be considered to constitute cruelty. On the other hand, plaintiff argues that while the conduct complained of was trivial and unimportant if each instance be isolated and considered alone, it shows a pattern of conduct which throws light upon the character of defendant as an egotistical, opinionated, nagging woman, with no regard for her husband, holding him and his relatives as well as his ancestry and religion in contempt, and evidencing this by a continuous succession of irritating conduct. A careful examination of the record convinces us that there is evidence to support the findings of the trial court, and that the findings are not against
It is also contended that there was condonation in this case. The principal ground for this contention is that in January, 1929,- after the happening of many of the instances relied upon as grounds for divorce, plaintiff took trips to Bermuda and Vancouver with defendant; that in July and August he wrote letters expressing affection; that a few days before he left her in August, 1929, he had marital relations with her; that on Thanksgiving Day, 1929, he invited her and their son to be his dinner guests; that on Christmas Day, 1931, he kissed her at his sister’s home; that he bought her a new car, and sent her a kindly telegram in November, 1931. The trial court found that the claim that marital relations had been resumed by the parties in August, 1929, was not true. The other actions' on plaintiff’s part were undisputed, and form the basis for the contention of condonation. There is no evidence of actual marital relations during the Vancouver or Bermuda trips, but defendant relies upon the presumption that such relations occurred. 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 con
It being concluded that there is no merit in the contention that plaintiff is not entitled to the divorce, the next question is whether the court properly awarded the primary custody of the child to plaintiff. The evidence as to plaintiff’s influence on the child, and his qualifications to direct the growth and development of the child, was all favorable to him. As to the mother, the evidence is conflicting. There was no contention that the mother is not of good moral character. The record bears strong evidence of her love for the child and of his love for her as well as for the father. There is much favorable testimony as to her attentiveness and devotion to the child. On the other hand, there is evidence that defendant’s temperament'as well as her insistence upon regulating every detail of the child’s conduct and life, are not beneficial to the child; that they tend to kill the child’s initiative, to deprive
It is defendant’s next contention that the allowance of permanent alimony to defendant is inadequate. This sum the court fixed at $1,200 per month, and aggregates $14,400 per year. The contention that this sum is inadequate is based upon a showing that the average annual income of plaintiff for the past five years approximates $180,000, and that a sum equal to about one-twelfth of the annual income of the husband is clearly inadequate. Prior to the separation, and during the period when defendant was running the household of plaintiff, her allowance was $2,500 a month. The allowance, after separation and prior to the commencement of the action, was $2,000 a month. Temporary alimony was allowed at $1,500 a month. It is evident that the sum allowed by the court is not disproportionate to that which defendant enjoyed when the parties were living together and she was sustaining the full expense of the household. She had no part in the accumulation of plaintiff’s estate, and there is no showing that the sum of $14,400 a year will not maintain her in her station in life with entire adequacy. While a substantially higher alimony could have been sustained, we think the
The next question raised is as to attorneys’ fees and disbursements. The court allowed defendant the sum of $8,500 attorneys’ fees and $3,000 for disbursements for the trial in the circuit court. It is contended that this allowance is inadequate. There was testimony on behalf of defendant that the services of her attorneys were reasonably worth $30,000. A former attorney, most of whose services were rendered prior to the commencement of this action, had submitted a bill for $3,000. The total claims for disbursements were $5,797.76. The court concluded that a considerable part of the services rendered by defendant’s present attorneys, as well as certain of the disbursements and expenses incurred, went beyond the bounds of reasonable necessity. It was also the view of the court that it was necessary not merely to determine the reasonable value of the services rendered by defendant’s attorneys and also their necessity, but also to ascertain the amount which it is equitable that plaintiff bear of these expenses. The court had in mind all of the matters properly to be considered. Defendant is under no circumstances to be allowed a sum greater than that reasonably necessary for the defense of the action. Williams v. Williams, 29 Wis. 517; Schulz v. Schulz, 128 Wis. 28, 107 N. W. 302. It is also the rule that the court in its discretion may consider the relative financial condition of the parties and decline to charge the husband with the expenses of her action or defense when, due to her financial condition or his, such a charge would be inequitable. See note 35 A. L. R. 1099; Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 798. However, in this case we see no reason why plaintiff should not bear the expenses reasonably necessary to defendant’s defense of the action. This was a closely contested case, and there is nothing to indicate that
Numerous other contentions are made by defendant, but a detailed discussion of them would unduly extend this opinion without performing a corresponding judicial service. We have carefully examined them and discover no prejudicial error.
By the Court. — Order of June 16, 1934, affirmed. Judgment affirmed in so far as it grants plaintiff a divorce, awards custody of the minor child tp plaintiff, and alimony to defendant. Judgment reversed in so far as it provides for allowance to defendant for attorneys’ fees and expenses, and cause remanded with directions to enter judgment as indicated in the opinion.
A motion for a rehearing was denied, without costs, on March 5, 1935.