Graham v. Graham, 149 Wis. 602

149 Wis. 602 | Wis. | 1912

WiNsnow, O. J.

A divorce action is purely the creature of statute, and hence the judgment appealed from cannot be justified unless it is authorized by statute. Boehler v. Boehler, 125 Wis. 627, 104 N. W. 840. It is plain that the divorce statute itself does not authorize it. The provisions for the revision and alteration of divorce judgments, with respect to the care and support of the children and the allowances of alimony, do not authorize any change in that part of the judgment granting the divorce. Nor do the provisions authorizing revocation of a judgment of limited divorce upon reconciliation of the parties, or of a judgment a, vinculo upon remarriage, affect the question here. Secs. 2363, 2369, 2370, and 2375, Stats. (1898).

After the expiration of the term at which it is rendered a divorce judgment is no more to be altered, revised, or set aside, so far as the part which grants the divorce is concerned, than any other judgment of a court of record. Bassett v. Bassett, 99 Wis. 344, 74 N. W. 780. These principles were fully appreciated by the trial judge, but he thought that under the doctrine laid down in the case of Lamberton v. Lamberton, 125 Wis. 616, 104 N. W. 807, the judgment of limited divorce might properly be regarded as an interlocutory judgment under the provisions of sec. 2883, Stats. (1898).

We are satisfied that this view was erroneous. The statute allows the entry of an interlocutory judgment in three definite contingencies and no more, viz.: (1) when there is an account to be taken; (2) an issue of fact to be decided; or (3) some condition to be performed. It is clear that the first two contingencies have no application. In the Lamberton Case it was held that the first judgment granting a limited divorce from bed and board was entered on condition that the defendant should refrain from the use of liquor during the continuance of the limited period, and that if he did not a permanent decree should be entered. This was deemed to be a condition within the meaning .of the statute. If the defendant abstained, no further judgment was to be entered; if he did not, the divprce was to be made permanent. The case does not reach the present situation. There was nothing here which can in any proper sense be called a condition to be performed. The trial judge says that his intention was to reserve the right to enter a final judgment on the record as it stood at the time of the interlocutory judgment, providing the parties had not united during the period limited. This left it within the plaintiff’s power to secure an absolute divorce by refusing to become reconciled with his wife, and this, too, notwithstanding she might (as in fact she did) completely reform from the use of intoxicants and thus remove all cause for any divorce. It amounts to a provision that the plaintiff may obtain a divorce from his wife by doing that which he ought not to do. This is not a condition within the meaning of the statute. It is offering a premium for breaMng the marital bond.

It is believed that the Lamberion Case went as far as is desirable in applying the provisions of the section authorizing interlocutory judgments to divorce actions. That case simply held that a court might temporarily refuse an absolute or permanent divorce to the innocent party notwithstanding good cause might be shown, and grant an interlocutory decree for a limited period in order to allow the guilty party to reform, and in case of such a reformation refuse a permanent decree altogether, or in case there was no reformation enter the permanent decree.

We regard the first judgment entered in the present case as a final and not as an interlocutory judgment. There was therefore no jurisdiction or authority to enter the judgment appealed from.

By the Oouri. — The judgment appealed from is reversed,' and the action is remanded with directions to dismiss the petition of the plaintiff.