Hiecke v. Hiecke
157 N.W. 747
Wis.
1916
Check Treatment
Maeshall, J.

It is considered that, — in the light of the rules governing the matter, particularly, that the findings are to be presumed correct unless against the clear preponderance of the evidence, giving due weight to the fact that the trial judge saw the witnesses and had a far better opportunity than is afforded by reading the printed history of the trial for weighing their testimony, — the conclusions of fact here cannot properly be disturbed.

It is contended that, though the facts found stand as verities, the divorce should not have been granted because of proof that the respondent was guilty of much matrimonial misconduct. That misconduct of one party to a marriage con*175tract would justify or require, under some circumstances, denial of judicial assistance to such party to nullify such contract, is well established by the decisions of this court. That rule, so far as it relates to an absolute bar to a guilty party successfully prosecuting an action for a divorce, is limited, in general, to cases where both parties have been guilty of a legal cause therefor (Pease v. Pease, 72 Wis. 136, 39 N. W. 133; Hubbard v. Hubbard, 74 Wis. 650, 43 N. W. 655; Voss v. Voss, 157 Wis. 430, 147 N. W. 634); though it has been sometimes extended by judicial discretion to situations where the wrongful conduct of the complainant did not constitute a ground for a divorce, but induced such conduct on the part of the defendant.

The doctrine of recrimination, in relation to divorce actions, is quite ancient, as indicated in 2 Bishop on Marriage, Divorce and Separation, secs. 372 to 376, inclusive. It was a question, as will be seen, for a time, whether fault of the plaintiff shonld bar a divorce unless of the same grade as the fault charged against the defendant, as for instance, whether, in case of the latter charge being adultery, cruel and inhuman treatment on the part of the complainant would bar a! recovery. The negative has been held in some state courts (Dillon v. Dillon, 32 La. Ann. 643), but, in general, it has been held in this country that conduct of the plaintiff constituting any cause for a divorce is a bar to an action for a divorce by such party on any ground. 2 Bishop, Mar., Div. & Sep. §§ 377, 378. Such is the rule, as stated in Pease v. Pease, supra. The prevailing doctrine is thus stated in 2 Bishop, § 340: “Recrimination in divorce law is the defense that the applicant has himself done what is ground for divorce. . . . It bars the suit founded on whatever cause, whether the defendant is guilty or not.” On the same subject, §§ 349, 365, and 368. This court went no further in Pease v. Pease, supra. The gist of the decision is correctly stated in the syllabus thus: “Where it is shown that each party has been *176guilty of an offense which the statute has made a ground for divorce in favor of the other, the court will not grant relief to either.” It is said in the opinion that such is the law in jurisdictions having written laws similar to our own, citing many authorities.

In the cases here subsequent to Pease v. Pease, the doctrine of the latter was not extended, as will be seen when the facts of the later cases are understood, though this language quoted in Hubbard v. Hubbard, 74 Wis. 650, 43 N. W. 655, from the opinion in Otway v. Otway, L. R. 13 Prob. Div. 141, is otherwise suggestive: “A judicial separation can only be granted when the petitioner comes to the court with a pure .character, and is free from all matrimonial misconductbut the case shows the court was dealing with a situation of mutual misconduct, each party being guilty of conduct constituting ground for a divorce. It was conduct of that character that the quoted language was addressed to and not to cases, in general, of want of “pure character” or of “matrimonial misconduct.” In Voss v. Voss, 157 Wis. 430, 147 N. W. 634, there was mutual misconduct of the nature required by the rule stated in Pease v. Pease, supra. It is very certain that this court did not intend to otherwise state the law in Hubbard v. Hubbard, supra.

The result of the foregoing is that, unless respondent was guilty of matrimonial misconduct constituting good' ground for an action for a divorce, there is nothing in the evidence barring her from maintaining her action, even if it does disclose conduct on her part which might, properly, have been, and probably was, considered on the question whether it so far provoked appellant to his misconduct as to justify or-require a conclusion that it fails to satisfy the call of the statute for cruel and inhuman treatment. There are no findings on the subject of matrimonial misconduct of plaintiff. None seem to have been requested. We must assume the trial court was of the opinion that the evidence did not warrant any which would bar her from obtaining relief, in case she estab-*177listed ter charge of cruel and intiman treatment against appellant, or excusing tis wrongful conduct. We are unable to see our way clear to disturb suet conclusion.

Tte question is raised on betalf of appellant as to wtetter, in any event, tte circumstances mentioned in tte findings warranted tte conclusion that appellant was guilty of cruel and intiman treatment of respondent. There is no specific finding of fact on tte subject, but we take tte conclusion of law as inferentially finding that tte long- continued course of ill-treatment of respondent, mentioned, imperiled ter tealtt, made ter marriage state intolerable, and rendered ter incapable of performing the duties of a wife. This court tas often held that treatment which does, or is well calculated to, produce suet results, satisfied tte “cruel and inhuman treatment” of tte statute. Freeman v. Freeman, 31 Wis. 235, 248; Reinhard v. Reinhard, 96 Wis. 555, 71 N. W. 803; Kohl v. Kohl, 143 Wis. 214, 125 N. W. 921; Banks v. Banks, 162 Wis. 87, 155 N. W. 916.

It does not seem, by tte later authorities, that actual impairment of tealtt, caused by ill-treatment without violence, actual, threatened, or probable, is essential to cruel and inhuman treatment. If the conduct of tte guilty party is such as to naturally cause great mental suffering to the otter, and render impairment of tealtt probable, so that further efforts to perform the duties of tte marriage state would be dangerous, that is sufficient. That is the effect of Kohl v. Kohl, supra. Tte wife need not submit to suet treatment until actually broken down in tealtt before being competent to successfully claim a judicial separation on the ground of cruel and inhuman treatment. This court has departed from the doctrine, which obtains in some jurisdictions, that personal violence, actual or so threatened as to reasonably produce a belief of its being probable, is essential to cruel and inhuman treatment, and adopted tte more humane construction of tte statute above indicated.

Our conclusion is that tte decision of the trial court on the *178subject above discussed should not be disturbed, though the findings would be much more satisfactory if they contained a specific decision that the wrongful conduct referred to imperiled the health of respondent and rendered continuance of living together by the parties as man and wife intolerable and dangerous to her. Ill-treatment of the character mentioned in the findings might or might not have that effect, according to the temperament of the wife and her surroundings. The court saw respondent and, doubtless, concluded that she could not be subjected to such treatment and be expected to preserve her health or be able to perform her duties as a wife. That, as before stated, can well be read out of the conclusion as to appellant’s guilt, presuming that the circuit judge was, as he must have been, familiar with the long established law here.

In the cost bill an item of $25 was allowed as expenses incurred by a court commissioner before whom there was an examination of appellant under the statute. Complaint is made of such allowance, also of the amount appellant was required to pay respondent for- support- of the minor children and of the amount which was awarded as her share on a division of property.

We do not perceive any efficient merit in the complaint of the $25 item. The expense seems to have been actually incurred by the court commissioner, and necessarily, in his judgment. We are unable to conclude that it was not so under the circumstances.

The allowance for support of the minor children, though quite liberal, does not appear to be so clearly excessive as to warrant overruling the trial court’s judgment.

After a careful consideration of the disposition of the subject of division of property, it is considered that it should not be disturbed. The well established rule is that, in general, a liberal amount to be allowed to the divorced wife is one third in money value of the husband’s property. That may be increased to one half or more for special circum*179stances. Edleman v. Edleman, 125 Wis. 210, 104 N. W. 56; Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 198; Lindenmann v. Lindenmann, 118 Wis. 115, 95 N. W. 96. It does not clearly appear that there was a departure here from that' rule. The court, doubtless, considered that the value of appellant’s interest in the $9,000 drug business was sufficient to warrant the award to respondent which was made and it is considered that the evidence does not clearly preponderate against that view. He had been allowed for a long time to deal with the property very much as if he were the owner and, evidently, the trial court came to the conclusion that he, substantially, was such.

By the Court. — The judgment is affirmed.