*1 Taake, Appellant. Taake, Respondent, v. September 3, Argued (1974). No. 40 1975. 2, 1975. Decided October reported 449.) (Also in 233 2d N. W. *2 argument appellant
For the there a brief and oral was by Stephen B. Schneider of Madison. respondent by Strub,
For the a brief was Wood- Quincey Quincey, attorneys, worth & and Kermeth J. argument counsel, by Dam, all Beaver oral Ken- and Quincey. neth J. 31, 1966, plaintiff- J. On October the
Beilfuss, Taake, granted respondent, Robert E. an absolute was Taake, defendant-appellant, divorce from the Barbara A. upon ground the of cruel inhuman From and treatment. findings judgment part the of fact and a file and appeal, appears parties record on mar- had been They years. ried about twelve had three minor children— plaintiff- adopted two their own and an child. The physician surgeon; husband and still a was was a in defendant-wife housewife. resided stipulation Beaver parties, Dam. Pursuant of the custody of the children to the awarded wife required support money payment per month $550 estate, plaintiff-husband. division of As wife parties, the home of the was awarded the household personal goods, her effects and an In ad- automobile. alimony in the dition, was awarded amount she $200 per month. February 6, stipulation 1968, based
On provide parties, was amended provision custody children, husband have and. payments support money deleted. was Shortly thereafter the defendant house sold apartment complex in Dam and moved to an Beaver year then lived there for about Sun Prairie. She Madison, apartment moved to an where lived intermittently as a December, until 1971. She worked personnel worker.
During year 1971, Taake, met the defendant Mrs. Lyle Fink. Fink was divorced from his wife and employed painter a maintenance for the Madison system. negotiating purchase of Fink for the school period For a of four a home on Road School Madison. occupancy prior to actual of the School five weeks home, Fink Taake her Madison Road lived with Mrs. apartment. *3 Fink and Taake
In December of both Mr. Mrs. newly purchased Road home on and moved into his School living hearing in there at the time of both were still May arrangements matter in of 1973.1 The were this per pay pay rent and for was to him month she $25 part of part groceries, and do at least a the house separate Taake been bedroom. Mrs. has work. She had alleged part due emotional unemployed a of the time injury work, at has problems. Fink suffered an while compensation benefits but received some workmen’s unemployed. having relations Taake admits occasional sexual
Mrs. failing they persons refer Fink and to correct when with although affirmatively Fink, not to her has as Mrs. appear Her name herself as Fink’s wife. does identified city directory. in a as Barbara Fink appeal after this had been taken indicates An affidavit filed 1978, Taake, home of Fink of in moved to the Mrs. W. A. Mrs. late part court, trial not a This fact was before the Fond du Lac. appeal. record, be considered this and cannot wife Pink he considered Taake be his testified Mrs. they testimony changed later to the effect but good very, very Fink were friends. Mrs. Taake Mr. and have not married at time. Taake, September respondent
In Robert monthly making alimony payments and ceased $200 May petitioned order amend- of 1978 the court alimony. ing to terminate amending judgment expunged stated, the order As terminated arrearages, barred alimony. future a memorandum decision the trial court found Lyle marriage Fink a de Taake and had facto rela-
Mrs. engaging tionship that Mrs. Taake had and was require termina- of such a nature misconduct so as obligation pay tion of her ali- her former husband’s mony. Taake should
The trial court concluded Mrs. enjoy of her de facto permitted to both benefits Lyle marriage relationship Fink and benefit husband; permit that to from her former might remar- her from divorced woman do so dissuade riage. The trial court concluded that Taake’s Mrs. legal the kind of misconduct which misconduct change recognized warranting a heretofore as alimony.2 or elimination of 247.26,
An is authorized award sec. provides, part, follows: Stats. *4 Upon judgment “Alimony, property every division. subject of time legal separation, may, the court to to of divorce or adjudge period 247.20, for a limited further
s. alimony property party out of the or income either such except support maintenance, party and of the other no not for guilty adultery granted party alimony shall finally may condoned, divide . . . court and 2 (1913), 132, 1052; 153 Wis. 140 Haritos v. N. W. Weber Weber Haritos 185 Wis. N. W. 181. v. estate, distribute the both real and personal, of either party parties between and divest and transfer any having given of each title of accordingly, thereof after due regard legal equitable rights party, and length the age of the marriage, parties, and health of the liability party either for or debts children, the respective their estates, abilities and whether property alimony, award lieu or in addition to parties character and situation of the and all case; circumstances of the . . .” 247.32, Stats., provides Sec. may award judgment. be revised after a part, is, section follows: judgment. “Revision of judgment providing After a or spouse children, other allowance for a them, or either of may, ... as aforesaid the court from time, time petition parties of either of the upon alter such family commissioner, revise and notice, judgment respecting the amount of such ali- mony or payment allowance thereof, and the . . . and may any judgment respecting make any of the mat- said might ters which original such court have made in the action, . . .” 247.38, Stats., provides, part,
Sec. that an completely award can be upon remarriage: annulled “Judgment remarriage. revoked on . . . After a final judgment of rendered, court, upon divorce has been application party paying alimony, to, on notice proof marriage, and on judgment, after such final party receiving alimony, such modify shall order such final respect orders made with thereto, by annulling provisions judg- of such final ment orders, directing or both, or of payment of such alimony.”
Two earlier cases, although Wisconsin dicta, perhaps given have consideration to revision of based upon subsequent misconduct of the spouse.3 divorced Counsel for both cite jurisdic several cases from other dealing problem. tions with the While these are instructive we persuaded by are not dealing them because we are our statute. *5 supra, page the 138: Weber, court at v. stated Weber hand, the fault wife, if without “. . . the other On or any adequate excuse of the and without husband and dis- deliberately a life of shame palliation, chooses upon property in honor, equitable claim other no daily compelled his he is husband, hands of the and may make money paid her, toil to the misconduct of the wife earn cutting off ground for reducing may in its same, as all or for alimony, just equitable cir- under all the discretion cumstances seem Stats., statute, Our sec. ease. grounds judgment ali- the prescribes mony may judgment legitimately upon which a no wisely It leaves modified. be may of considerations court. judgment judicial are so varied influence such complex legislative refrain wisdom alike much, how- from This enumerate them. attempt permit ever, do may of our be said: the courts state unchallenged. vice to flaunt its banner before them When into, may appears, inquired
it nature and extent be its justice ground may made demands, and if be so alimony.” equitable relief in the allowance following supra, Haritos, In Haritos statement v. appears page 464: at “It will noted that we have dealt issues raised the record made in the court below. recognized judg- is ment for divorce of adulterous divorce, that the denies statute adultery. guilty Upon proof to a wife subsequent judgment conduct appropriate it is the court con- take into continuing disallowing ali- sideration such conduct mony. or application fit If the defendant to make for a sees respect, prove modification or to part plaintiff adulterous conduct on the a reason purging contempt, for opportunity. accordingly he should be accorded appealed The order affirmed from will be right prejudice without the de- interpose
fendant to further order to defenses show cause.” that, Counsel for Mrs. Taake contends because there remarriage recognize no here and Wisconsin does not *6 authority marriages, statutory common-law is no to alimony decrease or eliminate based misconduct Weber subsequent argues He divorce. and Haritos, supra, not should be followed because relationships modern moral standards condone such Lyle corollary those of Fink and An Mrs. Taake. obvious argument of this that because a divorced woman greater opportunity self-employment freedom and for awarding alimony. courts should be hesitant Neither arguments of adequate these furnish answer. general rule, provision stated, often that a for changed except positive not upon will a show-
ing change especially of circumstances and so when agreement originally stipulation based or parties. change
Mrs. Taake contends of circumstances must change relate financial circumstances parties. acknowledge duty divorced We wife owes no fidelity However, sexual her former her husband. acknowledged cohabitation with another man can be as a change affecting of circumstances her former husband’s responsibility provide alimony support. for her manner and extent cohabitation and circumstances determining be considered in should whether payments changed. are to be changed case there are several circumstances given
that can be considered. Mrs. Taake was a substan- estate, including tial division of the home and household furniture for the obvious reason it going to be used as home for the minor children. Further, because she was the children, awarded her opportunity supporting for herself was limited. She custody stipulated that the be transferred to the husband changes the house. These were material sold in the original circumstances that the court considered when the Lyle Her cohabitation with award of was made. continuous Fink not indiscretion but an occasional arrangements joint support. cohabitation with for change of sufficient We believe this circumstances was delinquencies expunge permit the trial court to delete alimony payments and to amend alimony. trial court provision conclude the We respects those not these did abuse its discretion parts of affirmed. the order must be alimony.
The order also future This we barred goes subsequent hearing, appears If, think too far. at cohabiting married, Taake Mrs. above, manner forth and other circumstances warrant set resumption degree, the court should some *7 barring powerless part not to That the order be act. of alimony future must be reversed.
By part, the Court. —Order affirmed reversed in part. No to be taxed. costs (dissenting). J. is the Wisconsin
Heffernan, continuing upon that, divorce, rule has a obli husband gation support former in the to to wife manner which (1966), Radandt v. 30 she was accustomed. Radandt Wis. 108, 2d 140 N. The reason for the rule is W. 293. 2d 438, apparent from (1953), Weihert v. Weihert 265 Wis. duty 61 N. 2d 890. The former W. husband has furnish a divorced or wife nourishment sustenance. good that, may
There well be reasons to conclude day equal rights, where this cases both have capacity self-supporting, concept be entire alimony say be re-examined. it to should Suffice public where, here, interest it is serves as necessary party for the maintenance one to the divorce dependent spouse and without which former would charge. public become (1960), 438, 103 Miner 10 2d 4,
Miner v. Wis. N. 2dW. grants that, a divorce decree alimony, holds where
123 adjudieata decree res unless is will be disturbed change a material or substantial in circum- particularly where, here, stances. This true as pursuant agreement of the award was parties. that, pur-
Miner demonstrates since for the pose providing change post-divorce support, hinges proved upon circumstances must be changed changed or needs financial resources parties.
Balaam 2d (1971), v. Balaam 52 2d 20, 187 W. Wis. N. 867, majority opinion written the author of the case, indisputably proposition instant stands for the alimony payments a divorced husband who seeks to have heavy proof reduced has burden of if is to he disturb points that, “Alimony what been decided. Balaam out money are, a generalization, fixed on the ability basis of the needs the wife children and the 25) pay.” (p. husband (1962), 61, 113 v. Jackson Jackson 16 2dWis. N. W. 2d 546, put proof changed burden show financial seeking orig party upset circumstances inal decree.
Additionally, has held adjusted punitive purposes. awarded or should Foregger Foregger (1970), v. 512, 2d 180 Wis. N. W. 578; Tonjes Tonjes 2d v. Wis. 2d *8 2d 446. N. W. justified ground
Alimony can on one be obli —the gation husband, support in the case, for usual to his in the manner former wife to which she was accustomed marriage. during Sholund v. Sholund 2dWis. 726; 2d Jordan 148 N. W. v. Jordan (1969), Wis. 385; supra. 471, 171 Tonjes, N. 2d 2d W. public alimony usually that interest paid, is be post-divorce provision support, for without such spouse likelihood that a divorced substantial would public charge.
become Bearing overriding alimony, purpose in mind this Taake, what are the case? Dr. a Beaver Dam facts ability physician, pay wife, to whose divorced his children, per month for mother his sum $200 unquestioned, petitioned her the court to be legal obligation solely relieved his because his alleged misconduct. former wife’s proof pay There was no Taake could not Dr. previously decreed, any proof nor amount was there changed financial Barbara Taake’s so circumstances had alimony payments necessary were for her maintenance. indisputably
Rather, that, the facts show at the time of work, hearing, to ill, she was unable and was pay unable to her rent. years approximately
The record shows two after divorce, acquainted Lyle she became Fink. Fink took her he into his home because she was stated running money keep up out of and could not with her response question expenses. asking why In he took sorry home, her into he he felt for her and said stated: dog running years ago a kid I if around saw “[A]s good try give so, the protection in a rain or street I would offering wrong I think I so ... don’t did get place
her a under a roof.” of Fink and Taake situation Barbara is more to be society deplored in our than to He unem- blamed. substantially ployed and is able contribute fact, support. paying him has been Barbara’s relationship one that arose out of mutual rent. necessity necessity that economic the record shows —a respect to Barbara Taake. continues *9 gave Yet, underlying the record no consideration to the purpose necessity and main- —the tenance —nor fol- to the rule in been Wisconsin considering exception modification lowed without alimony award, of an that financial must circumstances every be considered in case.
It was admitted that Fink and Barbara had intercourse house, they on occasions, several lived in the same that Barbara on no occasion held herself out the wife as Fink, persons on but occasion had failed to correct who her There addressed as Mrs. was evidence that Fink. Taake, her mail was received under the name of Barbara neighbors not Barbara Fink. No were called as witnesses testify they that Fink and Barbara believed living apparently Taake than marital, were rather relationship. illicit, in an however, judge
On the basis
the trial
evidence,
of this
marriage
that a
concluded
de facto
existed
Fink
between
statutory
Barbara
Under the
of Wis-
Taake.
law
remarriage
consin,
bars
as matter
Hence, only
247.38,
law.
Stats.
if it could
said
Sec.
sup-
Taake had
would the record
Barbara
remarried
legal
alimony.
port
conclusion
terminate the
Clearly,
relationship
Taake and
between Barbara
Lyle
marriage
Fink
not a
sanctioned
law
specifically
This state
outlaws
facto or
this state.
de
marriages.
law,
public-
common-law
for obvious
reasons,
legally
policy
not clothe a
does
unsanctioned
relationship
cohabitative
male-female
marriage.
legal
legal
protections
relationship
of a
No
except
Barbara and Fink
that of
ever arose between
judge’s
and tenant. The trial
landlord
characterization
marriage
relationship
a de facto
without
significance except
predicate
as a
shibboleth
which to
marriage
where
a desired result.
common-law
states
indeed true that a
recognized,
common-law mar-
obligation
proved,
riage
pay
if
terminate the
would,
*10
marriage
alimony just
jure
The
de
reason
would.
marriage
course,
is,
in a
for that
of
common-law
relationship
per-
the
the
manifestation that
is
reciprocal
party
manent and that each
to it
the
assumes
obligation
obligations
marriage including
sup-
of
the
of
port
fidelity.
Bowman Bowman
163 Neb.
v.
336, 344,
The in this the trial considered was, however, temporary expedient. case A true marriage requires common-law husband common-law support to for a wife, and the need for by obligation supplanted divorced wife would be support. common-law husband such circum- ought stances divorced husband to be relieved of his obligation. obligation In the instant no case assumed might support Fink to Barbara Taake. facts pertinent remarriage be event of a common-law do appear in this case. judge gave
The trial abused discretion he his when legal the same relationship effect between legally recognized marriage. he as would have to a empty He abused his discretion when he on the seized temporary relationship justify shell of the termina- considering question tion of without need for continued He Barbara Taake. ignored undisputed abused his discretion when he record that fact of Barbara Taake awas necessitous person, supported by who should her former husband by public welfare, which, and not shows, the record had forced to for been resort assistance. pointed out also be that Dr. Taake no should had standing question to raise the termination alimony payment He had court. defaulted period prior request to his six months for modifi- procedure for the cation. modification equitable in nature. Dr. Taake came to the court contempt and, technically in of it under the clean hands doctrine, not have purged should been heard until he had himself of default. judge
The trial found the defendant’s miscon- right duct had caused her to alimony.1 forfeit her He finding made the that Barbara Taake Fink were “guilty of fornication” and “lewd and con- lascivious finding duct.” This was made process, without due wholly inappropriate in a noncriminal case. Neither Barbara Taake any pro- nor Fink were afforded tections of the criminal To law. the extent testimony proceeding justify criminal would characterization conduct, their the evidence was *11 wholly They charged inadmissible. were not with a crime right against and were not advised of their self-incrim- finding ination. of criminal conduct clear was and prejudicial rights public error. If the are to be persons indulge vindicated legally when unsanctioned acts, remedy ought sex the They is in the criminal law. not be prosecutor, characterized as criminals unless the of exercise discretion, that a criminal concludes public action interest, the are afforded rights the of criminal defendants, and the state assumes duty guilt beyond its to show a reasonable doubt.
It proceedings was irrelevant constituted, these judicial an abuse of people discretion to these two brand they adjudged by as criminals when had not been so the process. criminal judge upon
The trial relied the 1913 case of Weber v. Weber 153 132, Wis. 1052, N. for the W. proposition that the wife’s misconduct this case war- the termination alimony. ranted of Unfortunately, the judge, trial appeal, Dr. Taake’s counsel on this majority opinion language omit relevant of Weber and omit recitation of the facts which Weber is based. general rule, As a misconduct of an ex-wife cannot be the sole ground justifying alimony. a modification of Nelson, See: 2A p. (2d ed.), Annulment Divorce and see. 17.19. post-divorce can not hold that
Weber does of wife’s solely eliminated as result divorced misconduct. sought husband,
In to have who Weber bring alimony arrear- compelled terminated, was property ages up ordered final to date and alimony. Moreover, in lieu of Weber did division alimony. post-divorce modification of involve the term current within the modified the divorce jurisdiction of the of the court it had and while still original judgment. the trial
The trial court record in reveals Weber judge explicit findings able- an made that the wife was woman, twenty-four age, good years educa- bodied addition, earning living, tion, capable and, in her own living the trial parents. Hence, her clear that proper upon court decision affirmed in Weber was based respective parties— evidence —the financial needs totally present evidence that case. was overlooked correctly recognizes majority opinion language trial Weber, judge, relied dispositive mere dicta this case. erroneously interpreting In dicta a rule Weber law, judge the trial committed error of law impelled his incorrect conclusion. quotation addition, from is taken out of Weber *12 by judge majority opinion.
context the trial The opinion portion quoted majority appears in the indeed Weber, in the text of but counsel failed invite at- phrase appears tention of this court the crucial that immediately prior quoted phrase That text. re- discretionary quires a criterion that must be considered every alimony modification of financial case—the the wife. status of phrase points that,
The omitted out even there where lapse by wife, from virtue has been the divorced alimony” may modify “court well refuse to amount appears any if it “the without of her wife means ability Weber, own and to earn livelihood.” without supra, page 138.
Additionally, Weber itself reed to be a reveals slender precedent opinion concludes, “But in this when case it cannot said that reduction of was alimony.” 138) original (p. that, It reasoned since jurisdiction was within the court still term, authority prop- had the court decree a final erty effecting a division in lieu of and was not modification. 459,
Haritos v. Haritos Wis. N. W. upon by quoted relied the trial majority satisfactory opinion, prece furnishes even less dent question than The at no Weber. misconduct was question time raised an The issue the case. sole was by whether the could an contract amend by signed provision. claimed had wife agreement to reduce the because of threats of her prosecuted ex-husband that he have her would criminally alleged misconduct was misconduct. argued by not at issue in case effect and its parties. appears it Accordingly, the instant was dis- case trial, by posed court, of at and now this that are facts not relevant to the modification
a rule of law—that misconduct alone will suffice to recognized Tnodify alimony heretofore in Wisconsin. —not conjectures majority “there are several changed Perhaps circumstances that can be considered.” proof adduced, have could been such but was not. Clearly “changed these circumstances” were con- judge. by the trial sidered repeatedly
haveWe stated that we review exercise judge. a trial of discretion We do not substitute our *13 this. judge a trial in case such as at discretion for received may, that Barbara Taake it the fact Be that as ago years is irrelevant now. estate nine portion presently penniless. that clear she is evidence is The originally given custody True, also, of the chil- she custody away was taken from her the dren, when that but per that had theretofore been month she sum of $550 receiving support termin- children was ated; that the fact that she evidence is there but what change in circum- longer the children is no such sup- longer no needs that demonstrates stances escape his port that Taake now or should warrant Dr. obligation. Moreover, that Fink and legal the conclusion joint support" arrangements “for Taake had Barbara probative It is to the of Barbara irrelevant needs Taake. inadequate. rather of the fact that any continuing permanent or There was no evidence of obligation Taake; of Fink to Barbara light undisputed proof, fact of Barbara’s alimony. need, could a termination of There warrant changes were no relevant circumstances issue apparent Additionally, judge the trial here. gave “changed majority circumstances” con- jures up no consideration whatsoever. clearly judge’s punitive of a
The trial order was nature. rewarding public policy by prosperous What served general physician, expense public? at the The having alimony paid needy interest former state’s by spouse has been thwarted this decision. justice and in order should law be reversed. petitioner wholly to sustain failed burden
proof. Upon record, the evidence of it is clear supported adequate trial court order was not record wholly the of an but was result abuse of discretion. Day joins I am Justice authorized Mr. state this dissent.