Kohl v. Kohl

143 Wis. 214 | Wis. | 1910

The following opinion was filed April 5, 1910:

SiebecKer., J.

The court found that the allegations of the defendant’s counterclaim were sustained by the evidence and awarded judgment thereon divorcing the parties. The plaintiff’s contention is that this was erroneous because the facts found do not constitute cruel and inhuman treatment authorizing the granting of a divorce. The facts found clearly show that the plaintiff was guilty of wilfully and persistently causing defendant unnecessary suffering in body and mind, and that as a natural consequence thereof cohabitation with the plaintiff became dangerous to the defendant’s health and subversive of the marriage relation by making it impossible for him to discharge the duties imposed thereby. Though the ill treatment may not be said to have operated directly on the body, it however was of a nature well calculated to inflict pain and suffering in body and mind, and thus to produce injurious results which made cohabitation dangerous to the defendant’s health and life and to render it wholly impracticable for him to properly discharge his marital obligations. When the treatment of either spouse by the other so affects the injured party and the marriage relation, it is cruel and inhuman treatment in the law and constitutes grounds for a divorce. We think the facts found establish a good cause for a divorce, and that the court was justified in dissolving the marriage bonds.

It is claimed that the court erred in not approving the stipulation of tbe parties for a final division and distribution of tbe defendant’s property. It appears tbat tbe parties, made this stipulation when tbe defendant did not know tbat tbe plaintiff still bad $1,200 of bis money in ber possession. Tbe husband’s estate consisted of a homestead of an estimated value of $3,500; other real estate of an estimated value of about $2,900, which was incumbered by claims amounting-to $1,200; personal property, aside from tbe household goods,, of tbe probable value of $200; and tbe money which tbe plaintiff held. It also appears tbat the defendant owed $1,400 of unsecured debts. Tbe stipulation awarded tbe plaintiff tbe homestead and obligated tbe defendant to pay tbe plaintiff $3 a week as support.for the minor children, one of whom, at tbe time of tbe entry of judgment, was seventeen years of age and tbe other five.

Upon tbe trial of tbe cause tbe court expressed its disapproval of this division of tbe defendant’s estate, but suggested tbat if tbe plaintiff would voluntarily pay tbe $1,200 cash in ber possession to tbe defendant tbe stipulation would be approved. This tbe plaintiff refused to do. Tbe court thereupon refused approval of tbe stipulated division of tbe defendant’s estate and adjudged tbat tbe plaintiff be awarded tbe $1,200 in money and $3 per week for tbe support of tbe minor children during their minority, one of whom was then seventeen years of age and abundántly able to support herself. By this division tbe defendant retained bis homestead and some personal property, the equity in bis northern Wisconsin land, and a vacant lot in Ripon. .While these equities are probably of some value to tbe defendant they cannot be held to amount in value to tbe estimated market value less tbe incumbrances, and it seems tbat by charging tbe defendant with these equities at a reasonable amount and with tbe other-property allowed him, and deducting therefrom bis present indebtedness, it will leave him, in round numbers, two thirds of his property, of a probable market value of not to exceed .$2,500. Out of this be must pay tbe costs and expenses of this litigation. We find this to be a just division of tbe defendant’s estate, in tbe light of tbe fact tbat tbe divorce was .granted because of plaintiff’s misconduct toward and ill treatment of tbe defendant and of all tbe other accompanying facts ■and circumstances of tbe case. Upon tbe whole record tbe judgment of tbe circuit court must be approved.

Tbe plaintiff moved this court for an allowance of suit money, temporary alimony, and support for tbe minor cbil-•dren. We consider tbat an allowance of $50 to her as suit money in prosecuting this appeal and a determination tbat she recover her disbursements for printing tbe case and brief "will be just and equitable. Tbe respondent is to pay tbe .clerk’s fees in this court.

By the Court. — It is so ordered.

A motion for a rehearing was denied October I, 1910.