Norris v. Norris

162 Wis. 356 | Wis. | 1916

Lead Opinion

BARNES, J.

A divorce judgment which only provides a monthly allowance for the wife, to terminate on her remarriage or death, is not a final division of the husband’s estate *358under sec. 2364, Stats., no matter Row it is designated, Rut is a judgment for alimony which is subject to revision under sec. 2369. On this proposition the case of Lally v. Lally, 152 Wis. 56, 138 N. W. 651, is adhered to under the rule of stare decisis. We do not wish to he understood as deciding that a circuit court may not fix a specific sum to he paid in instalments or in gross and render a final judgment under sec. 2364, although the amount fixed might even exceed the value of the property then possessed by the husband, nor is the Lally Case to be construed as so holding. What we do decide is, that where no definite sum in the aggregate is fixed by the divorce judgment and where the duration of the period over which payments are to extend is subject to the contingency of remarriage or death, such judgment, however labeled, is one for alimony.

The further point is made that an examination under sec. 4096 can only be had at some time after the commencement of an action or proceeding and before judgment, and that inasmuch as judgment was rendered in the divorce action in 1907 the present application was made after judgment and that therefore the case is entirely outside of the statute. Among other things sec. 2369, Stats., provides:

“After a judgment providing for alimony or other allowance for the wife and children, or either 'of them, or for the appointment of trustees as aforesaid 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 also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any judgment respecting any of the said matters which such court might have made in the original action.”

So much of a judgment in a divorce action as awards alimony is not a final judgment, but is subject to revision and alteration. As to this portion of the judgment the court is as free to act on subsequent applications as it was originally. *359When the existing judgment is amended, there is to all intents and purposes a new judgment for alimony, and we think it would be an extremely narrow and technical construction of sec. 4096 to hold that it does not permit an examination in a proceeding like the one before us.

By the Court. — Order affirmed.





Dissenting Opinion

Kerwin, J.

(dissenting). I dissent from the opinion of the majority of the court. I think the case of Lally v. Lally, 152 Wis. 56, 138 N. W. 651, was incorrectly decided and that to follow the decision in that case is simply perpetuating an error.

The rule of stare decisis is invoked in the majority opinion in the instant case, apparently as a justification for adhering to the Lally Case. True, the rule of stare decisis applies where the decision is of such long standing as to become a rule of property and where the overruling of it would be likely to work great mischief. No reason appears for adhering to the rule of store decisis here. Harrington v. Pier, *360105 Wis. 485, 493, 82 N. W. 345; Baker v. Madison, 62 Wis. 137, 22 N. W. 141, 583; Van Valkenburgh v. Milwaukee, 43 Wis. 574; Hawks v. Pritzlaff, 51 Wis. 160, 7 N. W. 303; Kneeland v. Milwaukee, 15 Wis. 454, 474; Pratt v. Brown, 3 Wis. 603; Whereatt v. Worth, 108 Wis. 291, 84 N. W. 441.

It is Reid in the majority opinion in the instant case that an award of any sum either in gross or payable in instal-ments, if so denominated in the judgment, is final division • whether there is sufficient property out of which the awai;d can be paid or not; but that an award to a wife of a sum payable annually during her life or widowhood, though denominated in the judgment as final division, is not a final division. To put it another way, the majority opinion holds that an award of any.sum, no matter how small, payable monthly for any definite period is final division, if so declared in the judgment, while an award of a like sum payable monthly for the life of the wife where she has an expectancy of twenty-five years, more or less, or payment of such sum during widowhood, is not a final division. There is no authority under the statute governing alimony and final division for such distinction. The statute authorizes the court to award alimony or make final division and there is no limitation as to how this shall be done. The power to make final division includes the power to determine what shall be final division in the absence of restriction in the written law; and there is none.

In my opinion the decisions in Lally v. Lally, supra, and the instant case are out of harmony with every other decision of this court upon the subject. Hopkins v. Hopkins, 40 Wis. 462; Thomas v. Thomas, 41 Wis. 229; Bacon v. Bacon, 43 Wis. 197; Blake v. Blake, 68 Wis. 303, 32 N. W. 48; Campbell v. Campbell, 37 Wis. 206; Maxwell v. Sawyer, 90 Wis. 352, 63 N. W. 283; Palica v. Palica, 114 Wis. 236, 90 N. W. 165; Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 798; *361Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028; Brenger v. Brenger, 142 Wis. 26, 125 N. W. 109.

I think Lally v. Lally, supra, should be overruled and the judgment below in the instant case held to be a final division' and distribution of property.

Timlin, J., also dissented.



Dissenting Opinion

The following opinions were filed March 13, 1916:

Siebeckee, J.

(dissenting). I am of the opinion that the ‘original judgment of divorce in this action adjudges a final division and distribution of the husband’s estate and hence cannot be modified in this proceeding. The grounds of my opinion are fully elaborated in the dissenting opinion of Mr. Justice Keewiw in the case of Lally v. Lally, 152 Wis. 56, 138 N. W. 651. My judgment is that a court may, under sec. 2364, Stats., award a judgment of final division and distribution of a husband’s estate whether he has any specific real or personal property or not. I consider that a husband’s earning ability is treated under the adjudications of this and other courts as property for the purposes of a final division and distribution of his estate in a divorce action.