29 Wis. 517 | Wis. | 1872
I. It is objected by counsel for tbe plaintiff that the order of May 15th, 1871, was made by the judge at cham
II. Neither do we perceive any force in the objection that the minutes of the judge, which it is alleged were used on the hearing of the motion for additional suit money, are not returned and printed as a part of the case on the second appeal. The motion papers show that the court found the issues for the plaintiff. They also show the time consumed in the trial and the expenses thereof. In fixing the amount of the allowance for the expense of the litigation, the material facts to know are, not what the testimony was, but what it proved; also, how much the litigation has necessarily cost the plaintiff, and what are the pecuniary circumstances of the parties. The findings of the circuit court upon the issues show what the testimony proved; and the other facts necessary to be known are stated in the motion papers. Had a bill of exceptions containing the minutes of the judge, duly settled and signed by him, been read on the hearing of the motion, and had the same been returned to this court and printed in the case, counsel would not have been permitted to read it on the argument. And this for the reason just indicated, that aknowlege of the contents of such bill of exceptions would not aid us in the least in the decision of the appeal.
It is to be remembered, further, that Judge Wetherby, in his affidavit of February 13th, 1872, deposes that the minutes of the judge were not in any manner referred to or used upon the hearing of the motion.
III. The objection urged by counsel for the defendant, that after the court had adjudged a divorce it had no power to make the orders appealed from, is also untenable. There can be no valid
These rules of practice seem too plain to require tbe citation of authorities, or any further discussion to sustain them.
IY. We now proceed to consider tbe merits of tbe orders appealed from. It is indisputable that tbe circuit court, in tbe exercise of a sound judicial discretion, has power in divorce cases to make allowances to tbe wife, to be paid by tbe bus-band for tbe support, during tbe litigation, of herself and such of tbe children of tbe parties as may be committed to her care and custody, and for her expenses in prosecuting or defending tbe action. Such discretion is to be exercised with reference to all of tbe facts and circumstances of tbe case which will affect the amount of such allowances, and with due regard to certain legal rules which are almost universally recognized and applied by tbe courts in such cases. When tbe circuit court has fixed tbe amount of such allowances, and ordered tbe husband to pay tbe same, tbis court will not interfere therewith, unless it is apparent that some of tbe conditions which should have been considered by tbe court below have been overlooked or disregarded, to tbe manifest injury either of tbe husband or tbe wife.
In awarding temporary alimony, a primary, and indeed a controlling consideration is tbe extent of tbe husband’s income, and bis ability to pay tbe sum so awarded. 2 Bishop on Marriage and Divorce, § 455. Tbis consideration derives increased importance from tbe fact that tbe husband is liable, in tbis state, to be imprisoned for non-payment of temporary alimony,
In the view of the case above suggested, it becomes necessary to ascertain, as nearly as may be, the pecuniary resources and income of the defendant. Of these we have no very satisfactory statement. The plaintiff gives the descriptions of a large number of lots in the city of Hudson, and of two forty-acre lots in the north part of this state, of all which, together with valuable real estate in Minnesota and Iowa (not described), she avers that the defendant is the owner. She further avers that such real estate is worth $30,000, and that the defendant owns personal estate worth $10,000, and she estimates his annual income
We construe tbe evidence liberally for tbe plaintiff when we find that tbe defendant is worth $30,000; and, in view of tbe general experience of land owners, merchants and business men of this state, for tbe last three years, we estimate very liberally in her favor when we estimate tbe net annual income from tbe defendant’s property at six per cent, of its value. On this basis tbe defendant has a. net annual income of $1,800. Applying tbe rule above stated, we do not think that tbe plaintiff should be allowed over $400 a year for her individual support; and, were it not that the defendant has been adjudged guilty of tbe charges against him contained in tbe complaint, we should be constrained to fix tbe allowance at a less. sum. To this sum there should be added $500 a year for tbe support of tbe children, so far as they- need support from their mother. This gives tbe plaintiff $900 a yeai-, or $75 a month for tbe support of herself, and tbe partial or entire support of her daughter, who is seventeen, and her son, who is fourteen years of age. It is a sum as large- as is earned by each of a large majority of good mechanics and skilled laborers, of teachers, and perhaps it would not be far wrong to add clergymen, in this state; and yet upon that income, and even less, thousands of these support families of three and more persons comfortably,, and ■ give to their children a fair education.
We are of the opinion that the plaintiff can support herself, and, so far as is necessary, her children, respectably with $900 per annum. If she cannot do so, it is her misfortune that her late husband is not more wealthy than he now appears to be.
The court has power, in an action for a divorce, “ in its discretion, to require the husband to pay any sums necessary to enable the wife to carry on or defend the action during its pen-dency.” R. S., ch. Ill, sec. 16. In this case, it will be assumed that the defendant is able to pay all necessary sums to enable the plaintiff to carry on the action; and the only question is, what sums are necessary for that purpose?
The complaint charges that the defendant, during the cover-ture, was habitually unkind and cruel to the plaintiff and to their children, and specifies many acts of cruelty and inhumanity inflicted by him upon them. The answer denies such habitual unkindness and cruelty, and denies or excuses the specific acts so charged. It also recriminates by charging the plaintiff generally, and also in various specified instances, with unkind and improper language and conduct towards the defendant and the children, during the married life of the parties.
The issues thus made by the pleadings are simple, plain issues of fact, not differing essentially in character or number from those frequently presented in contested actions for divorces for the cruelty of husbands. They are of the same general character as those usually made in actions for assault and battery, and not more difficult. The only difference is in the number of the specifications. Neither does the case involve any very intricate questions of law. In this respect, a large majority of contested actions to recover the possession of real estate take precedence of it. Were it not for the fact that the trial occupied the court over a month, we should be entirely unable to recognize this as a case of colossal proportions. Indeed, notwithstanding the length of the trial, we quite fail to see any thing in the case to distinguish it from ordinary actions for di vorces on the same grounds. We find nothing in the case which convinces us that the array of eminent counsel, who were
There can be no doubt whatever that either one of the attorneys for the plaintiff, without any very severe strain upon his professional ability, would have conducted this action to the same result. Two counsellors of St. Paul, Messrs. Brisbin and Davis, whose fame for learning and eloquence has extended far beyond the limits of their state, were retained in the case. It is said that the defendant first retained Mr. Brisbin, and thereupon the plaintiff deemed it necessary to employ Mr. Davis. It must be remembered, however, that in the first instance the plaintiff employed two leading and able attorneys from Hudson, either of whom, as already observed, was abundantly competent to manage and conduct her case ; and the fact that she did so, affords the defendant some excuse for associating Mr. Brisbin with Judge Wetherby as counsel in the case.
It seems to us, also, that the expenses of the litigation were unnecessarily increased.by the change of the place of trial from St. Croix to Polk county. Surely the plaintiff should not have hesitated to go to trial in the place where the parties had resided during nearly all their married life; and we think that she ought to have accepted the stipulation, and permitted the case to be tried at Hudson. At least, we do not think that the additional expenses caused by the change of the place of trial should be charged to the defendant, under the eirumstances.
The itemized account of plaintiff’s expenses in the action, exclusive of- counsel. fees and taxable disbursements, is about $950. The taxable disbursements are excluded, because when, the circuit court renders the judgment for permanent,alimony it is proper that it also adjudge the defendant to pay the taxable disbursements of the plaintiff in the action. The allowances of suit money amount to $3,550, from which deduct the above expenses and there remains $2,600 for counsel fees. The judge of the eleventh judicial circuit receives a salary of $2,500 per annum for his official services, and pays his personal expenses out of that allowance. We all know that he brings to the discharge of his judicial duties learning and abilitv of a
' But further discussion will be unprofitable. We have reached the conclusion that one thousand dollars is the highest amount that should have been allowed for suit money, including all of the orders therefor. Pour hundred dollars is ample, we think, to pay the necessary expenses of the action beyond taxable disbursements, and six hundred dollars the utmost limit to which we are willing to go in fixing, and compelling the defendant to pay, the plaintiff’s necessary attorneys’ fees. And this sum must include all taxable attorneys’ fees in both the circuit courts, and in this court.
While, in this case, we do not find that any one has been actuated by mercenary motives, or that the expenses have been wantonly increased for the purpose of injuring the defendant, yet it is quite obvious that the effect of making large allowances to the wife would be greatly to increase and multiply divorce suits, and to render them chiefly unseemly scrambles for the property of the husband. Grave considerations of public pdlicy imperatively demand that such allowances should be kept within reasonable, and even within narrow limits. No case in this state has come under the observation of either member of the court, where allowances have been made in a divorce suit as liberal as were made in this case by the circuit court, and, bélieving that the allowances here are far in excess of what
1st. To modify the order of May 15, 1871, so that it will require the defendant to pay the plaintiff $75 per month, payable monthly, from April 15th, 1871, until the judgment for permanent alimony shall be rendered, or until the further order of that court, for the support of the plaintiff and her children, and also to pay interest at seven per cent, on all such unpaid allowances from the time they respectively became due until the payment -thereof.
2d. To so modify the order of June 21st, 1871, that it will require him to pay the plaintiff $450, and interest thereon at the same rate from the date of such order, on account of the expenses of the action.
The defendant must also be adjudged to pay the taxable costs of both appeals in this court, except attorneys’ fees.
By the Court. — Ordered accordingly.