58 Wis. 19 | Wis. | 1883
Without reciting the testimony we must hold that the alleged attempt of Lueinda to poison Daniel was not established by the evidence. "We are also of the opinion that the court was justified in finding that Daniel •had failed to support Lueinda for more than three months next preceding the commencement of this action, notwithstanding he had sufficient ability to support her. The mere fact that he had provided her with temporary support to April Í, 1880, in pursuance of the order of the court in the former action, did not relieve him from supporting her thereafter. Nor did the pendency of the appeal from the judgment in the first action make it obligatory upon her to obtain further temporary support by an application for and through an additional order. Nor did her failure to prove want of support prior to the first action prevent her from maintain
This brings us to the question of alimony or allowance to the wife. The statute, among other things, provides,, in effect, that upon every divorce for any cause, excepting that of adultery committed by the wife, the court may further adjudge to the wife such alimony out of the estate of the husband for her support and maintenance, as it shall deem just and reasonable, or the court may finally divide and distribute the estate, both real and personal, of the husband between the parties, and divest and transfer the title of any thereof accordingly, having always due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties, and all the circumstances of the case. Sec. 2364, R. S. This statute gives the court a broad dis
In determining such a question the court is not confined to the record upon which the divorce was granted. Thus, in Helden v. Helden, 7 Wis., 296, the husband' having obtained a divorce on the ground of the cruel and inhuman treatment of the wife (no other cause of action being alleged), it was held that it was competent upon petition to take testimony in regard to the alleged adultery of the wife subsequently discovered, for the purpose of modifying' the decree in respect to alimony and the custody of the children. In the language of the statute, the amount is to be just and equitable, due regard being had to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties, and all the circumstances of the particular case. Such being our duty, we cannot shut our eyes to the fact that Daniel was precluded from obtaining a divorce on one of his counterclaims in the first action, only on the ground that Lucinda! s unchaste character previous to the marriage was not a
By the Court.— Ordered accordingly.