183 Wis. 427 | Wis. | 1924
The action is one for divorce, and the complaint alleges cruel and inhuman treatment. The summons and complaint, together with an order to show cause for temporary alimony, were served upon the defendant personally on January 5, 1922. Upon the hearing of the order to show cause-the court awarded temporary alimony. An affidavit of default having been duly made and filed and the cause having duly come on for trial before the court, the court On the 18th day of April, 1922, signed findings of
The court in the present action found, among other things, as follows:
“That since the dismissal of said action for divorce the defendant has used of and towards the plaintiff vile and abusive language, and has brutally assaulted the plaintiff, and has been convicted and is now confined in the house of correction of Milwaukee county, on a charge of transporting and selling, etc., intoxicating liquors; that the said ill treatment of the plaintiff by the defendant has caused the plaintiff much anxiety and worry, even to the extent of undermining her health, and that it would be dangerous and unsafe for plaintiff to live with defendant as his wife.”
The court also found that the estate of the parties consists of an equity in a homestead of the reasonable value of $1,700, an equity in a land contract of the value of about $800, and a small amount of household furniture and effects of the value of about $200. As conclusions of law the court ordered an absolute divorce, awarded the custody of the three minor children, aged respectively ten, eight, and two years, to the plaintiff, and for the support of such children awarded alimony, and then, by way of final division of the property rights of the parties, awarded the homestead and the household effects to the plaintiff and the equity in the land contract to the defendant, but charged such equity with the payment of the alimony. Judgment was thereupon entered on the 29th day of April, 1922, in accordance with such findings.
In December, 1922, the defendant moved the court to vacate said judgment of divorce, and, in his affidavit in sup
There was also filed in support of said motion the affidavit of one Schultz, setting forth that on or about January 9, 1922, the defendant brought to him the papers in the divorce action and that the defendant requested him to accompany him to an attorney so1 that the cause might be defended, but that before proper arrangements could be made defendant was committed to prison on the sentence above referred to. Further, defendant’s counsel served a proposed answer, in which, among other things, he denied generally the allegations of cruel and inhuman treatment.
On April 13, 1922, after the hearing of such motion to vacate the judgment, the court entered an order denying the same. Defendant’s counsel in his oral argument and in his brief contends that the order refusing to vacate the judgment constitutes error, and it is the sole error assigned.
In White v. White, 167 Wis. 615, 168 N. W. 704, this court held that an order like the one in question is appeal-able under sub. (2), sec. 3069, Stats., as a final order affecting a substantial right, upon summary application after judgment, and that it cannot be reviewed on appeal from the judgment.
The provisions of sec. 3042 not having been complied with, the time for appeal is governed by sec. 3039, Stats.,
The order is discretionary. Lessig v. Lessig, 136 Wis. 403, 117 N. W. 792. The defendant at the time of the commencement of this action was not a novice in divorce actions. Plaintiff had begun a prior action for divorce in September., 1921, in which action the defendant appeared and submitted his defense, and the court denied plaintiff a divorce and dismissed her complaint. In the present action the court found that since the trial of the first divorce action the defendant has been guilty of cruel and inhuman treatment of the plaintiff; was guilty of committing a brutal assault upon the plaintiff, used vile language towards her, and was committed, Rpon a criminal charge for violating the Severson Act, to serve a term in prison. It was also found that the cruelty of the defendant undermined plaintiff’s health, and that the defendant is not a fit or proper person to have the care and custody of the children. No transcript of the evidence on either trial is before us on any of the appeals. The defendant, although not conversant with the English language, before being committed to jail, as appears from the supporting affidavit of Schultz, was apprised of the nature of the action and realized the necessity of hiring counsel and of interposing a defense. The judgment of divorce was not entered until about three months after the commencement of the action. It does not appear from defendant’s motion papers or from his answer that he had made an effort tO' hire counsbl or to defend the action or that he was prevented from doing so, excepting only that he alleges the fact, which is undisputed, that he was confined for a time in prison. The defendant being in default, the divorce counsel appeared on the trial, represented the interests of the public and of the parties, and in writing approved both the findings and the judgment.
Sec. 2360h, Stats., provides for the appointment of a divorce counsel, who must be a reputable attorney of recognized ability and standing at the bar, and who is required to take an oath to support the constitution of the United States and of the state and to faithfully, fearlessly, and impartially discharge the duties of such office. Sec. 2360h — 1 provides for the service of the pleadings in a divorce action upon such divorce counsel. It also provides that “such counsel shall appear in the action when the defendant fails to answer or. withdraws his answer before trial; also when the defendant interposes a counterclaim and the plaintiff thereupon neither supports his complaint nor opposes the counterclaim by proof; and when the court is satisfied that the issues are not contested in good faith by either party.” Sec. 2360h — 2 provides that
“No decree in any action in which divorce counsel is required by section 2360h — 1 to appear shall be granted until such counsel or the divorce counsel of the county in which the action is tried shall have appeared in open court and in behalf of the public made a fair and impartial presentation. of the case to the court and fully advised the court as to. the merits of the case and the rights and interests of the parties and of the public, nor until the proposed findings and judgment shall have been submitted to such divorce counsel.”
“No decree . . . for divorce shall be granted in any action in which the defendant does not appear and defend the same in good faith unless the cause is shown by affirmative proof aside from any admission to the plaintiff on the part of the defendant.”
Sec. 2360 provides that no decree for divorce shall be granted if it appears to the satisfaction of the court that the suit has been brought by collusion, etc. Sec. 2360^-provides that
“All hearings and trials to determine whether or not a decree shall be granted shall be had before the court, and not before a referee, . . . and shall in all cases be public.”
These statutes recognize .the interest which the state has in the marriage relation and in, a •-divorce, and by enacting the same the legislature has exercised wise precaution to prevent an imposition on the public. It would appear, therefore, that the interests of the public in this state have been carefully guarded. The statutory provisions requiring the divorce counsel to make a fair presentation of the case to the court at the en.d of the trial; and a submission of the findings and judgment to such ■ counsel, are indicative, on the part of the legislature, of an effort to procure substantial justice and to prevent a possible burden falling upon the state.
While in the complaint the defendant is charged with cruelty during the period preceding the making of the first divorce complaint, cruelty is also charged during the time between the dismissal of the -first complaint- and the commencement of the present action. Defendant’s counsel claims that the present action is based upon the identical charges-of cruelty contained in the complaint in the first, action, and, the issues in such action having been determined
It must be assumed that, the defendant having participated in the trial of the first action, he thereby became familiar with the necessity of hiring legal aid and defending such an action. He cannot claim ignorance of the nature of the second action, because he had been informed thereof by his interpreter. The mere fact that he suffered imprisonment would not prevent him from employing counsel or from notifying the court that he intended to defend and that he had a good defense. In his affidavits and answer in support of the motion to vacate, his defense is in the nature of a general denial; it does not specifically deny or explain any of the charges of cruelty proven on the trial. No substantial showing was made upon the merits. Under these circumstances we cannot say that the trial court abused its discretionary powers when it refused to vacate the first judgment. . ' ,
The duty of representing the interests of the public vests not only in the divorce counsel but also in the court; in fact, before the passage of the statutes creating the office of divorce counsel, such, entire duty vested in the court. Notwithstanding the statutes above referred to and all of the precautionary measures contained therein, a default judgment of divorce does not stand upon the same plane as a judgment in an ordinary civil action, and the rule still obtains in a somewhat modified degree that a default judgment of divorce will be vacated upon slight showing. In the present action a situation is disclosed • which would mate it nigh impossible for the parties hereto' to live' happily together. The defendant failed to benefit from his victory on the first trial. The breach in the marital relation's which existed at that time evidently had not been readjusted; on the con
.While an appeal has also been taken from the judgment itself and from the order revising the judgment, there is nothing before this court upon which this judgment and the order are based excepting the findings, which fully sustain and support the judgment. By its order revising the judgment the court merely substituted, in place of the trustee appointed in the first judgment, a new trustee.
By the Court. — The judgment of the lower court, and the two orders appealed from, are affirmed.