Williams v. Williams, 122 Wis. 27

Williams v. Williams

122 Wis. 27 | Wis. | 1904

Winslow, J.

The circuit judge, in his findings, said that it was a very close question whether the plaintiff was entitled to a divorce on the ground of desertion, or whether the defendant was entitled to a divorce on the ground that the parties had voluntarily lived apart for five years, but finally concluded that the evidence justified the latter finding. This conclusion is challenged by the plaintiff as unsupported by the evidence. Even were we satisfied that the circuit judge was wrong in his conclusion, and should have given the plaintiff a divorce on the ground of desertion, we are not at all sure that it would make any difference with the share of the property which should be adjudged to the wife, because the desertion proven, if any, was evidently the result of the failure of the plaintiff to support his family for many years,, crowned by the failure to send them the means to return home, and the deliberate discontinuance of all correspondence with the defendant. Irrespective of this question, however, we are inclined to the opinion that the finding is sufficiently supported by the evidence.

The provision of our statute authorizing a divorce a vinculo when the husband and wife have voluntarily lived entirely *31separate for the space of five years immediately preceding the commencement of the action (subd. 7, sec. 2356, Stats. 1898) is peculiar to Wisconsin. Kentucky has a statute authorizing such a divorce when the parties have lived apart without cohabitation for five years (Ky. Stats. 1894, sec. 2117), and Rhode Island a statute authorizing divorce when the parties have lived separate and apart from each other for the space of at least ten years (Gen. Laws R. I. 1896, ch. 195, sec. 3), but we have found no other states with similar provisions. Authorities bearing on the construction of this statute are therefore necessarily confined to our own state, and there is perhaps little need for authority, in view of the simplicity of the statute. As said in Thompson v. Thompson, 53 Wis. 153, 10 N. W. 166, there are but two requirements: first, that the parties should live entirely separate for five years; second, that such separation should be mutually voluntary. In Phillips v. Phillips, 22 Wis. 256, it was held that the voluntary character of the separation might be sufficiently proven by acts, and that proofs of specific declarations of such a purpose were not necessary, and this ruling was substantially followed in Cole v. Cole, 27 Wis. 531.

In the present case the testimony of defendant is definite and clear that after the plaintiffs letter of March 21, 1896, she decided that she did not wish to return to the plaintiff or live with him. While the plaintiff claims that he still expected to resume the marital relation, there is much evidence to the contrary. The letter of March 21st aforesaid was bitter and harsh. According to the defendant’s evidence, it was the last letter which he wrote, until a brief note in June, 1901, asking her to sign a deed. This sudden and complete stoppage of a correspondence which had been active and friendly before that time, coupled with the fact that the plaintiff sent no money thereafter either to defray the expenses of travel or to support the family, and offers no rea*32sonable explanation of this complete change of attitude, certainly justifies the inference that he had reached the conclusion that it was desirable to lire separate. If he did reach that conclusion at or about the time of the sending of the last-named letter, then the required five years of voluntary separation was proven, this action not having been commenced until about Eebruary 1, 1902. Nor can it make any difference with the result that the defendant, at some time after the voluntary' separation had begun, wrote to the plaintiff, stating that she would never live with him again. This would not change the-voluntary character of the separation, in the absence of objection on the part of the plaintiff. If, when she made this statement, the plaintiff had notified her that he objected to further separation and was ready to provide the means for her to return to him, this action would doubtless have put an end to any further claim of voluntary separation, but he did no such thing. lie simply kept silent, and thus the mutually voluntary character of the separation remained as before. We conclude, therefore, that the findings of the trial court are sufficiently sustained by the evidence.

Complaint is made that the provisions for alimony are excessive. We do not think so-. The husband’s real estate was found, upon sufficient evidence, to be of the value of $8,000, his personal property of the value of $1,000, and his bona fide debts not to exceed $3,100. Thus he was found to be worth substantially $6,000. In addition, he was found to be physically sound, in the prime of life, a successful farmer, with a milk route in the city of New Richmond producing a fair income. On the other hand, the defendant is broken in health, unable to perform any hard labor, and has two minor children to support. Under such circumstances, a gross sum of $1,800 is not an unduly large sum to be awarded to the wife. We think, however, that, instead of being allowed as alimony, this sum should be awarded as a *33final division and distribution of the estate of the husband! between the parties. This course is nearly always preferable, as it closes the door to future litigation and difficulty' between the parties. We have concluded, therefore, to modify the judgment by striking therefrom the words “that the defendant have and recover as and for alimony from the plaintiff,” and by inserting instead the words “that the defendant have and recover from the plaintiff as and for a final divison and distribution ‘of the estate of the plaintiff,” and to affirm the judgment as so modified.

By the Court. — Judgment modified as indicated in the opinion, and affirmed as modified, with costs to be taxed in favor of the respondent.