Schwenn v. Schwenn
143 Wis. 399
Wis.
1910
Check Treatment

The following order was filed May 24, 1910:

By the Court. —

The case is ordered to be placed on the August calendar, 1910, for reargument on the question'of whether, in case of such an antenuptial contract as that between the parties, the court can, without consent of such parties and in the circumstances of this case, make a division of property between such parties or adjudge to the divorced woman permanent relief of a pecuniary nature, other than alimony strictly so called.

Upon reargument, September 16, 1910, the cause was submitted for the appellant on the brief of John G. Fehlandt, and for the respondent on that of Daniel H. Grady.

The following opinion was filed October 4, 1910:

Maeshall, J.

It does not seem best to say much more in regard to objections in that the findings of fact do not support the cause of action for a divorce on the ground of cruel and inhuman treatment, than that they do not appear to be against the clear preponderance of the evidence, referring to the rules on the subject. It may be conceded that the evidence, as it impresses one by reading the record, is not very satisfactory. It may even be conceded that such reading leaves the impression that injustice may have been done the appellant and that, perhaps, a finding in his favor would appear more satisfactory than one against him, and yet the judgment be proof against attack.

As has often been said, much weight must be given, on appeal, to the trial judge’s decision on issues of fact, where it is *403not reasonably clear that the law was misapplied. They must, for reasons often suggested, not only be regarded as conclusive, unless contrary to the clear preponderance of the recorded evidence, but as supported by all reasonable inferences as regards the proper persuasive effect of appearances and circumstances which might, within reasonable probabilities, have efficiently and legitimately challenged the attention of the trial judge, yet do not, and could not be made to, appear of record. In the light of that rule the instances must, necessarily, be quite exceptional where such reasonable expectation of relief upon appeal can exist as regards matters of fact as to warrant burdening litigants with the expense of an effort in that regard, and still more exceptional where such expectation can be realized. If the futility which actually, and must necessarily, exist of appeals to this court on purely matters of fact, were fully appreciated, the otherwise waste of energy and expense of litigation of that character would be avoided.

These general observations are not intended to suggest that the case in hand is not so fairly within the exceptional class, from the standpoint of the practitioner, as to warrant presenting it for our consideration, but rather to indicate that the dignity given here to decisions of trial courts on issues of fact, is sufficient to prevent them from being disturbed even where the printed record creates serious doubts as to whether justice has been done. Such realm of even such doubts must' be passed and conviction to a reasonable certainty created, not only that the decision is wrong, but prejudicially so, else it must be regarded as right, though on many minor matters harmlessly wrong.

TTo more need be said regarding the subject discussed at length in the argument of counsel for appellant. As a rule, in case of an unsuccessful challenge, upon appeal, of a trial court’s decision upon issues of fact, no discussion of the evidence, in general or particular, will be indulged in. The con-*404elusion only will be stated, referring to the well known canon governing the subject, with such general observations, from time to time, as may seem advisable to keep the significance thereof constantly in view.

The disposition made by the trial court of property matters cannot be approved.

The antenuptial contract is not affected by the judgment,, nevertheless such judgment awards respondent a large estate out of appellant’s property. Whether it is proper to do that,, and whether in case of a valid antenuptial contract, as in this case, it is proper for the court to award to the wife anything but alimony, are important and interesting questions upon which a reargument was ordered and has been had. It. seemed at first, that such questions should, or at least well might, be decided in this case. However, it is now considered that the questions of law are so important that they should not be settled except after an exhaustive study and a more full argument by counsel than we have been favored with, and when necessary. That condition does not now exist, since it is considered that, regarding the antenuptial contract as unaffected by the result, proper administration, in this case at least, requires the making of a reasonable allowance for alimony only, and that it was error to do otherwise, and error to award respondent so large a sum of money as $2,(100, either by way of alimony or upon a division of property, she to have also, under the antenuptial contract, $500 in case of her surviving appellant.

The reasons for the conclusion, that the award was too large, whether considered as alimony or as respondent’s portion of the joint property, or both, upon a final division thereof, we need not spend time to give. It is sufficient for the case to state the conclusion.

The foregoing calls for a reversal of the judgment as to property matters and entry, in place thereof, of judgment awarding respondent such sum for alimony as the nature of *405the case seems to justify, which, in the judgment of the court, does not exceed $1,000. It is therefore considered that an .award for alimony of that sum should be made, it being understood that the antenuptial contract secures to respondent $500 additional on the contingency mentioned therein.

It will be left to the trial court, on application of either party and on notice to the other, to fix a reasonable time for appellant to pay the $1,000, or secure payment thereof, and to render judgment accordingly, pursuant to the mandate of •this court.

By the Court. — The judgment dissolving the marriage •contract is affirmed; the judgment as to property matters is reversed, and the cause remanded with directions, upon the remittitur being filed in the court below and application of ■either party upon ten days’ notice to the other, that the trial court add to the judgment of divorce an appropriate provision for payment to appellant of $1,000 as alimony at such time and secure payment thereof in such way as to such court may appear just, the judgment not to disturb plaintiffs right to $500 under the antenuptial contract. Uo costs will “be allowed in this coiprt to either party, but appellant will pay the clerk’s fees.