157 Wis. 430 | Wis. | 1914
Several errors are assigned. It is first assigned as error that no cause for divorce was shown upon the plaintiff’s own evidence; and especially in view of the fact that the defendant was not permitted to testify in her own behalf. The defendant was called as an adverse witness by plaintiff and testified, and from the evidence it is quite plain that both parties were in fault, and perhaps the plaintiff in as great if not a greater degree than the defendant. Moreover, after the plaintiff closed his evidence the defendant was denied a hearing, the court assuming that he had heard all he desired to hear and that the proper thing to do was to grant a divorce, doubtless because of the revolting character of the eviderice disclosed by the adverse examination of defendant, together with the evidence of plaintiff.
The court below practically denied the defendant a hearing, refusing to hear her evidence or the evidence of other witnesses offered on her behalf. This conduct on the part of
The court is of opinion that upon the record made the plaintiff was not entitled to a divorce. Plaintiff’s conduct was grossly immoral and unjustifiable. Much of the improper conduct of the defendant was obviously provoked by the fault and misconduct of the plaintiff. Under such circumstances the plaintiff was not entitled to a divorce. Skinner v. Skinner, 5 Wis. 449; Pease v. Pease, 72 Wis. 136, 39 N. W. 133; Hubbard v. Hubbard, 74 Wis. 650, 43 N. W. 655. We shall not review the evidence, scandalous and grossly immoral as it is. Some of it should be expunged from the record, especially Exhibit 12. It is quite clear that the court below ordered judgment of divorce mainly for the reason that he did not think the parties could live together in harmony, not for the reason that plaintiff had made a case entitling him to a divorce. But divorces must be granted on legal grounds, not on notions of the court as to the propriety or advisability of the parties continuing to live together.
Counsel for appellant asks relief under sec. 2366, Stats., which provides:
“In a judgment in an action for a divorce, although such divorce be denied, the court may make such order for the support and maintenance of the wife and children, or any of them, by the husband or out of his property as the nature of the case may render suitable and proper.”
We are of opinion that relief under sec. 2366, Stats., should be granted.
By the Court. — The judgment of the court below is reversed, and the cause remanded with directions to take such further evidence as may be necessary and grant the defendant the relief provided for by sec. 2366, Stats.