Buss v. Buss

• Decision Date: 11 May 1948
• Citation: Buss v. Buss, 252 Wis. 500, 32 N.W.2d 253 (Wis. 1948)
• Parties: BUSS v. BUSS.
• Court: Wisconsin Supreme Court

252 Wis. 500

32 N.W.2d 253

BUSS

v.BUSS.

Supreme Court of Wisconsin.

May 11, 1948.

Appeal from a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge.

Action for divorce by Edna A. Buss against Herman E. Buss, who filed a counterclaim. From a judgment for plaintiff who was also allowed $35 per month alimony and $50 per month for support of child, the defendant appeals.-[By Editorial Staff.]

Judgment affirmed.

FRITZ, J., dissenting.

The action was one for divorce commenced by the respondent wife in May 1946. The appellant interposed an answer and counterclaim. After hearing the evidence of both parties the court ordered judgment for divorce from the bonds of matrimony upon the ground of nonsupport and allowed respondent $50 per month for the support of a minor child and $35 per month alimony.

The appellant challenges the judgment for the reason that two previous actions started by this respondent against the appellant for divorce upon the grounds of cruel and inhuman treatment had been dismissed, one after trial. At the conclusion of the trial of the first action Judge Shaughnessy, who heard the testimony, dismissed the complaint because of lack of sufficient grounds. In that first action, which was commenced in 1945, there had been a preliminary hearing on an order to show cause and upon that hearing, at the request of the respondent, the judge had directed the appellant to remove from the home of the parties and at the same time refused to enter an order for temporary alimony. The second action was dismissed because it was brought while the first was still pending. In the first action Judge Shaughnessy entered an order of dismissal on May 2, 1945.

Since the original order requiring the husband to leave the home of the parties there has been no attempt on the part of either husband or wife to resume the marital relationship or to continue to live together. The appellant concedes that from May 2, 1945, to the commencement of the third action in May 1946, and presumably to the time of the trial, the appellant contributed nothing to the support of the respondent, but contends that under the circumstances this cannot constitute nonsupport for the reason that on two separate motions instituted to compel him to pay, and also upon the trial of the first action, Judge Shaughnessy refused to order alimony.

Alvin Juedes, of Milwaukee, for appellant.

Clyde M. Paust, of Milwaukee, for respondent.

HUGHES, Justice.

We are of...