167 Wis. 615 | Wis. | 1918
The parts of sec. 2374 of the Statutes of 1915, in force when this action was tried, material here, were as follows:
“1. When a judgment of divorce from the bonds of matrimony is granted in this state by a court, such judgment, so far as it determines the status of the parties, shall not be effective, except for the purposes of an appeal to review the same, until the expiration of one year from the date of the entry-of such judgment.
“2. So far as said judgment determines the status of the parties the court shall have power to vacate or modify the same, for sufficient cause shown, upon its own motion, or upon the application of either party to the action, at any time within one year from the entry of such judgment. . . , If the judgment shall be vacated it shall restore the parties to the marital relation that existed before the entry of such judgment.
“3. It shall be the duty of every judge, who shall enter a judgment of divorce, to inform the parties appearing in court that the judgment, so far as it affects the status of the parties, will not become effective until one year from the date when such judgment is entered.
“4. Such judgment, or any provision of the same, may be reviewed by an appeal taken within one year from the date when such judgment was entered. At the expiration of such year, such judgment shall become final and conclusive without further proceedings, unless an appeal be pending, or the court, for sufficient cause shown, upon its own motion, or upon the application of a party to the action, shall otherwise order before the expiration of said period.”
Until at least the year had gone by from the entry of the
By sub. 2, sec. 2330, of the Statutes it is declared unlawful for either party to such a divorce action to marry again during such year, and that any such attempted subsequent marriage shall be null and void. This declared public policy of the state through whose aid plaintiff sought to be released from his prior assumed obligations as the head and member of a family — that vital unit of society, — cannot be evaded or avoided by the mere crossing over into another state. State boundary lines are not fetters upon such public policy. Lanham v. Lanham, 136 Wis. 360, 117 N. W. 787; Severa v. Beranak, 138 Wis. 144, 119 N. W. 814; Kitzman v. Werner, ante, p. 308, 166 N. W. 789; Andrews v. Andrews, 188 U. S. 14, 23 Sup. Ct. 87.
It is evidently the declared purpose and policy of these statutes that until such year has passed the court still has absolute control, and up to the last moment, over the question whether the party seeking a divorce is entitled thereto, and that which has been granted conditionally by the court may he forfeited by the one to whom thus granted by his violation of the conditions attached thereto by law.
Such is the rule in Massachusetts, under a statute substantially the same as ours, announced in cases just like the one before us. Moors v. Moors, 121 Mass. 232; Cook v. Cook, 144 Mass. 163, 10 N. E. 749.
By sec. 2360 of the Statutes it is provided: “No decree for divorce shall be granted if it appears to the satisfaction of the court . . . that the plaintiff . . . has been guilty of adultery not condoned.” This provision rests upon the court as well during the year subsequent to the trial and entry of the judgment as at the trial, and is not lifted before there is an ab
In divorce actions, in. which the state has such a substantial, well-recognized interest, a court is not confined in its disposition of them to the facts as they existed at the time of the commencement of the action merely, but it may take cognizance, under proper pleadings, of what is done by either or both parties thereto during the time it is pending before it. 2 Bishop, Marriage, Div. & Sep. § 567; 14 Cyc. 674; Moors v. Moors, 121 Mass. 232; von Bernuth v. von Bernuth, 76 N. J. Eq. 487, 74 Atl. 700; Blanc v. Blanc, 67 Hun, 384, 22 N. Y. Supp. 264; Armstrong v. Armstrong’s Adm’r, 27 Ind. 186; Smith v. Smith, 4 Paige Ch. 432.
It follows therefrom that the court below was in error by its denial of defendant’s application to set aside and vacate the judgment and should have entertained such application in the manner as hereinafter indicated.
Under the situation disclosed in this case the defendant should be permitted, under sec. 2687 of the Statutes, to make a supplementary answer and assert the adultery of plaintiff subsequent to the trial, either as an absolute bar to plaintiff’s prayer for divorce as by way of recrimination (Hiecke v. Hiecke, 163 Wis. 171, 157 N. W. 747; 9 Ruling Case Law, p. 387, sec. 180), or she may also allege it by way of counterclaim as grounds for a divorce in her favor, as she shall be advised. We deem such method by supplementary pleading the better practice, as it gives the defendant an opportunity
The fact that either method chosen may work a hardship to the one whom plaintiff may have induced to marry him in the meantime cannot alter the application of the law. Crouch v. Crouch, 30 Wis. 667; Everett v. Everett, 60 Wis. 200, 18 N, W. 637; Dallmann v. Dallmann, 159 Wis. 480, 149 N. W. 137.
The fact that plaintiff voluntarily paid and the defendant received the $10,000 specified in the stipulation and finding makes it unnecessary to decide in this case whether the court could compel, under the statute in question here, compliance with such a provision for final division of the estate of the husband before the judgment becomes absolute by the expiration of the year, or whether anything more could properly be done with relation to any necessary final division and disposition of the husband’s estate or property than to secure the performance of such provisions by requiring the property itself to be held for that period by some trustee, by the giving of adequate security, or by some method that will protect the rights and interests of the parties during the statutory interval.
Under the further proceedings that must be taken herein, the $10,000 paid to the defendant can still be controlled by the court as plaintiff’s property. If she be awarded a divorce it may be considered and disposed of for purpose of final division of his property, or in case divorce be 'denied them, under sec. 2366 of the Statutes the court may make suitable and proper orders for the support and maintenance of the wife and child by the husband, due allowance to be made to her for whatever may have been reasonably and properly expended by her in reliance upon her possession thereof under the stipulation between the parties.
Elaintiff contends that defendant cannot appeal from the order now being reversed, on the ground that, the right of ap~
Upon plaintiff’s appeal from so much of the order of the court below as awarded to the defendant $300 attorneys’ fees on the application to vacate the judgment, we shall content ourselves with saying that such an allowance can be properly made under sec. 2361 of the Statutes, for the reason that it is made during the pendency of the divorce action, and such action is -pending until at least the judgment therein becomes absolute, as defined by the terms of this statute, as we have held above.
This disposition of - the case renders it unnecessary to consider the questions raised and so ably discussed as to whether defendant, having defaulted; having signed the stipulation above recited as to the terms of the judgment dividing the property; and having accepted the benefits of the stipulation and judgment by retaining the $10,000 therein provided, could be permitted to appeal from the judgment itself; or the further question whether the alleged assurance to defendant that there was no other woman in the case, and upon which assurance, it is contended, she agreed to the stipulation and default, was of such fraudulent nature that the judgment for
By the Gourt. — So much of the order of the court below as allows to the defendant attorneys’ fees is affirmed. That part of the order denying the defendant’s application to vacate the judgment is reversed, and cause remanded with directions to set aside the judgment of August, 1916, and to permit supplemental pleadings to be interposed and the issues thereby raised determined. Defendant to have her costs and disbursements.