Brenger v. Brenger

• Decision Date: 22 February 1910
• Citation: 125 N.W. 109,142 Wis. 26
• Parties: BRENGER v. BRENGER.
• Court: Wisconsin Supreme Court

142 Wis. 26

125 N.W. 109

BRENGER

v.BRENGER.

Supreme Court of Wisconsin.

Feb. 22, 1910.

Syllabus by the Judge.

Authority to allow permanent alimony to a party in a divorce action or a portion of the property of the parties to one of them as a permanent settlement of their property rights, is referable, wholly, to the written law.

Permanent alimony is allowable out of the property and earnings of a divorced husband to his divorced wife, but not to the former out of the earnings and property of the latter.

The property of the husband and that of the wife derived from him, may be considered together in making a permanent adjustment of property rights upon a judicial termination of their marital relations.

Upon such termination no part of the separate property of the wife, not derived from the husband, can properly be divested and transferred to the husband or burdened by his debts.

In adjusting property rights of the parties in a divorce action, in case an estate shall have been during coverture conveyed to the wife by the husband to compensate her for care of him, and she shall have, without reasonable excuse, defaulted in that regard, the transfer should, by rules for judicial construction, be held to have been made upon condition subsequent, and, because of the default, should be restored to him and the condition thus created be then dealt with in settling matters respecting alimony to her for division of property between the parties.

Every provision for support in a judgment in a divorce action, whether it requires payment of money at intervals or in a gross sum, is to be regarded as “alimony” whether so expressly stated or not.

Judicial authority to make a division of property between the parties to an action for a divorce is referable solely to section 2364, St. 1898.

Under such section no power is given to take any part of the separate property of the wife not derived from the husband and transfer the same to the latter, while authority in that regard is expressly negatived by section 2372, St. 1898.

An allowance for support, adjudged in a divorce action, does not constitute indebtedness to the party in whose favor the allowance is made which can be reached by creditors of the latter.

Payments in money required by the judgment in a divorce action to be made by one party to the other as the portion of that other upon a division of the property of the parties may be reached by the creditors of that other.

The findings of fact in an action tried by the court should severally cover all of the material issues raised by the pleadings, carefully excluding all other matters, and the paper should be draughted from a strictly judicial viewpoint.

In settling the property rights of parties upon a judicial dissolution of their marriage contract it is proper, if not the duty of the court, to so provide as to preserve to them, subject to their individual rights after the separation of contracting to the contrary, their statutory exemptions from claims of creditors, while at the same time the indebtedness of each, in determining the property status to be dealt with in settling property rights should be considered.

Appeal from Circuit Court, Shawano County; John Goodland, Judge.

Action by August Brenger against Louisa Brenger. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Action for divorce. The facts as found or appear by the evidence are these: Plaintiff and defendant lived together as man and wife for some eighteen years prior to their separation which occurred some time before the action was commenced. Each of the parties, when they intermarried, had children by a former marriage, all of whom are now able to care for themselves. There are two children by their union, both also being of sufficient age to care for themselves and be of some help to the defendant with whom they reside. At the time of the marriage each had property of the value of some eight hundred dollars. They soon purchased eighty acres of land for a home, each paying one-half of the consideration. They took the title to the realty jointly and made their home on the land till the separation. Some time after the first purchase, the parties acquired forty acres of land additional, which was practically paid for jointly, and the title taken accordingly. The income of the property, together with the sum of $1,400 in money which came to the hands of the plaintiff, belonging to his children by his first marriage, was expended in making improvements on the farm and acquiring personal property for use in connection therewith.

Plaintiff's entire money investment in the property, including the children's fund and excluding the income, is $2,200, with interest on $800, from 1894, and on $1,400, from 1898. The entire money invested by defendant on the same basis is $800, with interest from 1894. The total value of the property is about $6,200. Plaintiff owes one of defendant's children $400, for work done on the joint property. He is about 61 years of age and defendant 57. She is a strong capable woman in fairly good health and of good ability to care for herself. He, for more than 14 years, has been so crippled and infirm as to be unable to do anything. He is now blind and needs personal attention by others. In 1906, for the purpose of compensating defendant for rendering him needed attention and supporting him in their home, he quitclaimed to her his half of the homestead 80, worth at least $2,000. From that time she has possessed and used all of the property of the parties substantially as if it were her own. A few days after defendant obtained the conveyance she placed a mortgage on the property to obtain $600, which she gave to her son by the former husband, and she now owes the debt. There is a judgment debt against plaintiff for the money belonging to his children, which he used as aforesaid, of $2,847.35, rendered May 8, 1908, but it was said on the trial, that could be settled for $1,500, in case of payment being made within a reasonable time. For a long period before the action was commenced, defendant treated plaintiff in a most cruel and inhuman manner. Such treatment was reprehensible to a high degree, before the defendant obtained the deed aforesaid, but was worse thereafter. She made his life miserable and practically forced him from his home and to subsist by charity. For over a year he has been a public charge because of defendant's bad treatment. He has made repeated unsuccessful efforts to become sufficiently reconciled with her to enable him to obtain support in the home, and was compelled to commence this action in order to secure a part of the property described and devote it to his own use instead of having to depend on charity. She is entirely to blame for the unhappy condition. He has promised to reimburse the town which relieved his necessities. That will take about $200. He is indebted to his attorney for upwards of $100.

On the situation aforesaid the court concluded, as matter of law, and adjudged accordingly, that plaintiff was entitled to a divorce as prayed for and to have out of the property $200 to reimburse the town; also $100, and such other sum as he might have to expend, as expenses of the litigation; also to have his clothing and carpenter's tools and an allowance of $25 per month, payable every three months during his life, on the first days of January, April, July and October in each year, the same to be a lien on all of the real estate owned by the parties, or either of them, and that subject to such lien and other existing liens and debts mentioned, defendant was entitled to all the property, with a privilege to discharge the lien for the quarterly payments aforesaid by paying to the plaintiff $2,000, and that she should pay the costs of the litigation.

She appealed.

John Bottensek, for appellant.

Eberlein & Eberlein, for respondent.

MARSHALL, J. (after stating the facts as above).

The circuit court seems to have decreed that appellant should pay, as alimony, to respondent $25 per month and burdened her property with a lien to secure such payment. Doubtless it was supposed such method of treating the complicated property situation, in view of the wholly dependent character of respondent and the very reprehensible conduct of appellant, was the most equitable one to adopt; that from a business, and humane standpoint as well, respondent could best be provided for in that way, and appellant had no reason to complain which equity could recognize.

The difficulty with the conclusion reached, is that it has no legitimate basis in the law to rest upon. A court of equity has very great power in a purely equity case and not much less, perhaps, in a purely statutory action as far as governed by equitable principles. But such power does not go to the extent of violating the written law.

The statute (section 2364, St. 1898) provides for compelling the former husband of a divorced woman to pay her alimony out of his estate and earnings during their joint lives, but not for compelling a divorced wife to bear such a burden on account of the husband. Neither the written nor the unwritten law justifies adjudging alimony to the former husband out of the divorced wife's property and earnings.

At this point we should say, in passing, we are speaking of alimony strictly so-called, not division of property. The whole subject having been covered by statute, with the evident purpose of superseding the system at common law, we must find warrant in the written law for the disposition of property complained of, or condemn it.

As said by a standard text-writer:

“No instance could occur at common law in which the court would decree alimony to the husband; and, in the absence of any statute creating such liability, the wife would not be liable to an action for alimony, although she is enabled by statute to hold and transfer real and personal property in her own name and right.” Nelson on...