Towns v. Towns

171 Wis. 32 | Wis. | 1920

Eschweiler, J.

Except for the power given to the court to open a judgment within one year after notice thereof for mistake or surprise as provided in sec. 2832, Stats., but within which this present application does not come, a judgment in a divorce action making a final division and distribution of the property as here cannot be reviewed or altered after the term of the court in which it was rendered. Zentzis v. Zentzis, 163 Wis. 342, 347, 158 N. W. 284; Lally v. Lally, 152 Wis. 56, 58, 138 N. W. 651; Thompson v. Thompson, 73 Wis. 84, 87, 40 N. W. 671; Webster v. Webster, 64 Wis. 438, 440, 25 N. W. 434; 14 Cyc. 793.

The property thus awarded to the defendant becomes her separate property. Kistler v. Kistler, 141 Wis. 491, 493, 124 N. W. 1028; A. D. Baker Co. v. Booher, 153 Wis. 319, 323, 141 N. W. 248.

The power given under sec. 2361, Stats., to the court in divorce actions - to make, during the pendency thereof, orders concerning the support of the wife, the care and support of the minor children, and in relation to the parties or the property of the parties, as in its discretion shall be deemed necessary or proper, cannot be held to warrant the power here exercised by the court after entry of a final judgment.

In White v. White, 167 Wis. 615, 168 N. W. 704, relied upon by respondent in this case, the application was made, as here, subsequent to the judgment, but only with reference to so much of such judgment as determined the status of the parties. Under the provisions of sec. 2374, Stats., the court is granted express power to vacate or modify such judgment, so far as it affects the status of the parties, at any time within one year from' the entry of such judgment, and if the judgment shall be so vacated it shall restore the parties to the marital relation that existed before the entry of such judgment. In that case, as an incident to the disposal of the question there at issue involving the status, it was held that the sum of money which had been voluntarily paid by plaintiff to defendant might still be controlled by the court. The distinction between the two situations is manifest.. The primary purpose of the divorce action is the adjustment of the status of the parties; the property interests are incidental thereto. Damon v. Damon, 28 Wis. 510, 514; Clarke v. Burke, 65 Wis. 359, 361, 27 N. W. 22.

If the primary purpose is necessarily altered or affected the incident may also be properly changed, but it by. no means follows that the incident may be changed, as was done here, the primary being unaltered.

The express authority under sec. 2374, Stats., granted to the court to affect the status of the parties by subsequent revision or modification is a controlling indication that the legislature did not intend that the other provisions of the judgment might also be so altered. Bassett v. Bassett, 99 Wis. 344, 347, 74 N. W. 780.

The loud call that the facts shown in the application herein undoubtedly make for such a relief as was granted by the court below cannot, however, be a sufficient basis for the action taken. Divorce actions and proceedings therein are entirely statutory; what the statute does' not give, the court, however broad its equity powers in other matters may be, cannot assume. Martin v. Martin, 112 Wis. 314, 318, 87 N. W. 232, 88 N. W. 215; Renner v. Renner, 127 Wis. 371, 374, 106 N. W. 846; Graham v. Graham, 149 Wis. 602, 604, 136 N. W. 162; Martin v. Martin, 167 Wis. 255, 260, 167 N. W. 304.

By 'the Court. — The order of the circuit court and the modification of the judgment in July, 1919, is and are vacated and set aside.