Heinemann v. Heinemann

• Decision Date: 09 December 1930
• Parties: HEINEMANN v. HEINEMANN.
• Court: Wisconsin Supreme Court

202 Wis. 639

233 N.W. 552

HEINEMANN

v.HEINEMANN.

Supreme Court of Wisconsin.

Dec. 9, 1930.

Appeal from a judgment of the Circuit Court for Milwaukee County; Edward T. Fairchild, Circuit Judge.

Action for divorce by Clara Heinemann against Gustave Heinemann, in which defendant filed a counterclaim. From a judgment dismissing the complaint and granting defendant a divorce upon his counterclaim, plaintiff appeals.--[By Editorial Staff.]

Affirmed.

The judgment appealed from was entered June 20, 1929, and adjudged and decreed that the plaintiff's complaint be dismissed, and that the bonds of matrimony existing between the defendant, Gustave Heinemann, and the plaintiff, Clara Heinemann, be dissolved.

The divorce was granted to the defendant on the ground of willful desertion by the plaintiff. Plaintiff brought this action for divorce against the defendant, alleging cruel and inhuman treatment. The complaint was verified March 24, 1928, and the answer was filed April 16, 1928. The action was pending for over a year, and was set for trial June 18, 1929. On that date defendant served plaintiff with an amended answer and counterclaim. The counterclaim asked for divorce upon the ground of desertion. Both the original complaint and answer were properly served upon the district attorney, as required by statute, but the amended answer and counterclaim does not appear to have been so served. Upon the trial for divorce, plaintiff declined to offer any proof in support of her complaint. The court then proceeded, without the presence of divorce counsel, to take testimony in support of defendant's counterclaim. Plaintiff testified, as one of the witnesses for the defendant, to the facts of her residence and marriage, and of having left the defendant on November 22, 1927. At the close of the testimony, the court announced that under the evidence defendant would be entitled to a decree, but that, inasmuch as there was no evidence under the complaint, and the matter had become a default, the parties would have to have the district attorney's appearance and approval. The court further stated that, if the district attorney approved the findings, that would be sufficient. The findings did receive the approval of the district attorney before they were signed by the court, and both the judgment and findings were also approved by the plaintiff's attorneys.Max Raskin, of Milwaukee (Willard A. Bowman, of Milwaukee, of counsel), for appellant.

Bottum, Hudnall, Lecher, McNamara & Michael and Herman E. Friedrich, all of Milwaukee, for respondent.

WICKHEM, J.

Plaintiff appeals upon two grounds: (1) That the statutory requirements with reference to service of the counterclaim upon the district attorney, and with reference to his appearance in open court, were not satisfied, and that the judgment is void for want of jurisdiction; and (2) that the period of desertion, as shown by the evidence, was for less than the period required by statute.

Section 247.14, Stats., provides: “In any action to affirm or annul a marriage, or for a divorce, the plaintiff and defendant shall, within ten days after making service on the opposite party of his complaint, answer, counterclaim or reply, as the case may be, serve a copy of the same upon the divorce counsel of the county in which the action is begun. * * * Such counsel shall appear in the action when the defendant fails to answer or withdraws his answer before trial; also, when the defendant interposes a counterclaim and the plaintiff thereupon neither supports his complaint nor opposes the counterclaim by proof; and when the court is satisfied that the issues are not contested in good faith by either party.”

Section 247.15, Stats., provides: “No decree in any action in which divorce counsel is required by section 247.14 to appear shall be granted until such counsel or the divorce counsel of the county in which the action is tried shall have appeared in open court and in behalf of the public made a fair and impartial presentation of the case to the court and fully advised the court as to the merits of the case and the rights and interests of the parties and of the public, nor until the proposed findings and judgment shall have been submitted to such divorce counsel. * * *”

Section 247.01, Stats., provides: “The circuit court has jurisdiction of all actions to affirm or to annul a marriage, or for a divorce from the bond of matrimony, or from bed and board, and authority to do all acts and things necessary and proper in such actions and to carry its orders and judgments into execution as hereinafter prescribed. All such actions shall be commenced and conducted and the orders and judgments therein enforced according to the provisions of these statutes in respect to actions in courts of record, as far as applicable, except as provided in this chapter.”

The contention of the appellant is substantially this, that the requirements for service upon the district attorney, his appearance in open court, and his approval of the findings, are mandatory, and that a failure to comply with the requirements constitutes a jurisdictional defect in the proceedings. Appellant invokes the well-established rule that the jurisdiction in divorce actions is entirely statutory. “What the statute does not give, the court, however broad its equity powers in other matters may be, cannot assume.” Towns v. Towns, 171 Wis. 32, 176 N. W. 216, 217.

This court had occasion to consider a somewhat similar situation in Bloomer v. Bloomer, 197 Wis. 140, 221 N. W. 734. In that case the court, with the consent of the appellant, heard some testimony of a salacious character in chambers, and excluded minors and newsgatherers, while some of the same character of proof was being offered in the courtroom. The appellant in that case relied upon section 247.12, Stats., which provides: “All hearings and trials to determine whether or not a decree shall be granted shall be had before the court, and not before a referee, or any other delegated representative, and shall in all cases be public.”

The appellant sought to avoid the effect of the well-established rule that an appellant cannot be heard to complain of any proceeding taken or proof received upon the trial at the instance of the appellant himself, by asserting that this rule does not apply to divorce actions in which the public is a party in interest. The court affirmed the judgment, and in doing so stated that the “statute was enacted to end a practice that had obtained in this state by which testimony in default divorce actions was quite generally taken before referees, who were too often stenographers in the office of the plaintiff's attorney. It was because this practice made possible the granting of a divorce almost as a matter of form that this act was passed for the purpose of abolishing the practice.” The purpose of the act was held to be “accomplished in this case when the presiding judge, the parties, and their counsel retired to the judge's chambers upon request of defendant's counsel in order that the salacious testimony should not be detailed before those who were in the court room.”

[1][2] The reasoning in the Bloomer Case is applicable in the present situation. If the purpose sought to be accomplished by the statute was in this case substantially satisfied, there should not be a reversal for a failure literally to observe the statutory requirements. Sections 247.14 and 247.15 set out, in substance, four requirements: First, the original pleadings shall be served upon the district attorney; second, he shall be served with the amended answer and counterclaim; third, he shall appear in open court and fully advise the court as to the merits of the case; and, fourth, he shall approve the findings. Of these requirements two were satisfied. The original summons and complaint as well as the answer were served upon the district attorney, and the findings were submitted to him for approval and were approved. While it cannot be said that the proceedings were in strict conformity with the statute, we think it may be said that the purposes sought to be accomplished by these provisions were substantially satisfied, in that the district attorney was given a proper opportunity to...