Hopkins v. Hopkins, 40 Wis. 462

Hopkins v. Hopkins

40 Wis. 462

Wis.

1876

Check Treatment

Cole, J.

I. -The judgment of divorce cannot be set aside or reexamined, but must be deemed final and conclusive upon that question. It must be borne in mind that a direсt appeal was taken from the original judgment of divorce, which was affirmed by this court. 39 Wis., 165. But that is not all. On the appeal taken from the second order refusing to set aside the judgment or to modify it as asked by the defendant, this court decided that no case was presented for setting aside the judgment, though it was held that the judgment should be modified in certain particulars. 39 Wis., 167. And upon that appeal, as in this, the point was made that the motion pаpers showed that the judgment was obtained in pursuance of a collusive agreement between the parties, or by fraud and imposition practiced upon the defendant; but that position was distinctly overruled. Now, after these ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍adjudications upon the right of divorce, if the judgment is not absоlutely conclusive and final upon the question, it is difficult to understand when that effect should be given to it. Surely if it may now be reexamined, reconsidered and set aside, the maxim cited by Willes, J., in Great Northern R'y v. Mossop, 84 E. C. L., 130-139, should read, lites sunt immortales, dum litantes stmt mortales/ for a divorce suit would never end. But the proposition seems too plain for discussion, that the judgment оf divorce must be considered as final and conclusive between the parties. “ Once granted, judgment of divorce, for obvious *465reasons of public policy, should, of all judgments, not be disturbed. Such is the policy of our law.” Ryan, C. J., in Campbell v. Campbell, 37 Wis., 206-210.

2. On the reversal of the order, the cause was remanded, with directions to the circuit court — besides the articles of personal property given the plaintiff — to award her $2,000, a gross sum, for alimony proper. The original judgment was thereupon modified by the circuit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court in conformity to this direction. Subsequently application was made for further modification of the judgment in respect to alimony, and for a change in the place of trial, on account of the prejudice of the judge. The motion for the change was properly denied. Bacon v. Bacon, 34 Wis., 594. Before the application to revise or modify the judgment for alimony was decided, the defendant moved for a reference to take testimony in the matter. This motion was denied; but whether the court refused to grant the motion becаuse the matter in respect to alimony was no longer under its control, or because no case was shown in the affidavits and papers for altering the amount of alimony, does not appear. We have no doubt the circuit court had power to revise the judgment in respect to alimony, providing new facts were shown affecting the character of the plaintiff, or in regard to the changed circumstances of thе defendant, which rendered such reduction proper. The statute provides (sec. 28, ch. Ill, E. S.) that after a judgment for alimony or other allowance for the wife, the court may from time to time, on the petition of either of the parties, revise and alter such judgment respecting the amount of such alimony or allowance, and the payment thereof, and may make any judgment respecting any of such matters which the court might havе made in the original action. It is plain that this provision gives the court plenary power and control over the question of alimony, as was decided in Campbell v. Campbell, 37 Wis., 206; authorizes it to revise its judgment in that regard as the situation and circumstances of the parties *466change; and even to enforce рayment of increased alimony from subsequently acquired estate or income of the husband. Where there is a partition or division of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reаl and personal property of the husband, between the parties, as is sometimes adjudged when such division seems most advantageous for all сoncerned (see Donovan v. Donovan, 20 Wis., 587; Cole v. Cole, 27 id., 531; Williams v. Williams, 36 id., 362), there the judgment is necessarily final. Campbell v. Campbell, supra. But the allowance of a gross sum, as in the present case, unless expressly stated so to be in the judgment, is not to be regаrded as a division or partition of the property of the husband between the parties under section 29, but must be treated as alimony proper, remaining under the control of the court. For, under section 24, the court may adjudge the wife “ such part of the personal estate of the husbаnd, and such alimony out of his estate, as it shall deem just and reasonable.” This it may do by way of requiring the husband to pay the wife a gross sum (Donovan v. Donovan), or so muсh a year. The matter is one resting in the discretion of the court, and the duty 'of the husband to support the wife may be enforced in either mode. But in both cases it is alimony, in contradistinction to a division of the estate, which is awarded. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍And, as already stated, this remains under control of the court, and may be revised for good and sufficient reasons at any time. But the law in reference to alimony has been fully discussed in the adjudications of this court, especially in the case of Campbell v. Campbell, and it would seem to be unnecessary to dwell longer upon the point.

3. The further question remains, whether the affidavits and motion papers used in support of the application to modify the judgment, and those read in opposition thereto, present any ground for a reference to take testimony upon the matters set forth in the petition.

It is charged and stated in the affidavits and motion papers, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that- before the divorce suit was commenced, and during the *467pendency of that action, the plaintiff committed adultery at various times with one Woodworth, and that this criminal intercourse was unknown to the defendant until quite recently. And it is claimed that this criminal conduct, considered in сonnection with the fact that the plaintiff intermarried with Woodworth about four months after the divorce was granted, should properly and justly affect the question of the husband’s duty to pay future alimony. We are inclined to adopt that view, and to say that if such dissolute conduct on the part of the wife is shown to have existed before, to have continued during the divorce proceedings, and finally to have culminated in the marriage of the guilty parties after divorce, it is a fact which may be considered by the court on the application to reduce the amount of alimоny. For we have held that in actions of divorce the strict rights of the parties will not alone be considered, but that there are questions of publiс policy involved in them which courts are not at liberty to disregard. Dutcher v. Dutcher, 39 Wis., 652. It is proper to say that all the charges of adultery are most positively аnd distinctly denied by the plaintiff in her affidavits, as they are in the affidavit made by Woodworth. And the wife recriminates, and charges that the defendant was himself guilty оf adultery with a party named. If on a reference it should appear that both parties have been guilty of the misconduct charged, the сourt should leave them to their disgrace and infamy. But if, on the other hand, the wife alone has been guilty as charged, the court might well consider whethеr the liushand was not absolved from all duty to pay further alimony. But the facts can only be made to appear on a reference to tаke testimony, which we think should he had. Bacon v. Bacon.

By the Court. — The order of the circuit court is reversed, and the cause is remanded for further proceedings in conformity with this opinion.