Cahill v. Cahill

• Decision Date: 05 January 1965
• Parties: Edward G. CAHILL, Appellant, v. Katherine A. CAHILL, Respondent.
• Court: Wisconsin Supreme Court

Page 842

131 N.W.2d 842

26 Wis.2d 173

Edward G. CAHILL, Appellant, v. Katherine A. CAHILL, Respondent.

Supreme Court of Wisconsin.

Jan. 5, 1965.

Concurring Opinion Jan. 8, 1965.

Nelson & Ehr, Milwaukee, for appellant.

Patrick T. Sheedy & Associates, Milwaukee, David F. Kopplin, Milwaukee, of counsel, for respondent.

BEILFUSS, Justice.

Was the trial court's finding that Mrs. Cahill did not wilfully desert her husband against the great weight and clear preponderance of the evidence?

The right to divorce must be predicated upon a violation of the marital relationship as recognized by the divorce statute. One of the grounds enumerated in the statute is wilful desertion.

Sec. 247.07(3), Stats., provides a divorce may be granted, 'For the wilful desertion of one party by the other for the term of one year next preceding the commencement of the action.'

In Schopps v. Schopps (1925), 188 Wis. 151, 205 N.W. 829, and Leach v. Leach (1954), 266 Wis. 223, 63 N.W.2d 73, we recognized four essentials which must be established for a divorce upon ground of wilful desertion. They are (1) a leaving by the other spouse without just cause, (2) such leaving was without intention to return, (3) the separation must be continuous for one year preceding the commencement of the action, and (4) the original leaving, together with the living apart for the statutory period, must be without the consent of the complaining spouse. To these four essentials another should be added, namely, that the leaving and the continued separation for the statutory period was the wilful act of the offending spouse. ¹

If the complaining spouse establishes these five essentials he is entitled to a divorce.

It is without dispute that Mrs. Cahill left the family home in Milwaukee county without just cause; that she did not intend to return; that separation was continuous for more than a year before the commencement of the action; and that she left and remained separated without the consent of Mr. Cahill.

The trial court found that Mrs. Cahill was not insane but was mentally ill at all times concerned and that the desertion was, therefore, not wilful and denied the divorce.

In addition to the facts set forth above, the only evidence of the mental health of Mrs. Cahill consisted of the testimony of Dr. Hurley and letters from Mrs. Cahill's father, a physician, and physicians who examined and treated Mrs. Cahill at the time of and subsequent to her admission to the hospital in New York on August 19, 1960. These letters have very little probative value because they relate to the situation as it existed after the cause of action occurred in addition to being hearsay. The contents of the letters was also considered by Dr. Hurley in arriving at his conclusions set forth below.

On August 2, 1960, at the request of the family court commissioner, Dr. James Hurley made a complete psychiatric examination of Mrs. Cahill.

Dr. Hurley was called at the trial by the plaintiff-husband and testified at length on examination by counsel for both sides and the court. Dr. Hurley resides in Milwaukee; he does and has for several years conducted an extensive practice in psychiatry. As appears from the opinion of the trial court, Dr. Hurley is an exceptionally well qualified expert in the field of psychiatry.

The testimony of Dr. Hurley stands uncontradicted and unimpeached. He was of the opinion that Mrs. Cahill was not on August 2, 1960, nor prior thereto, legally insane. He testified in substance that Mrs. Cahill was emotionally disturbed; that she had a paranoid personality, but had not reached the stage of paranoid schizophrenia and therefore not insane; that she knew the difference between right and wrong and the nature and quality of her acts, and that she did choose her acts even though she had delusions that motivated them.

The trial court's finding that Mrs. Cahill was not insane but mentally ill cannot stand.

Sec. 51.001, Stats., provides:

'Definitions. As used in this chapter:

'(1) Mental illness is synonymous with insanity; * * *'

In State v. Esser (1962), 16 Wis.2d 567, 599, 115 N.W.2d 505, 522, we stated the test of insanity to be:

"The term 'insanity' in the law means such an abnormal condition of the mind, from any cause, as to render the defendant incapable of understanding the nature and quality of the alleged wrongful act, or incapable of distinguishing between right and wrong with respect to such act."

The undisputed testimony of Dr. Hurley was that Mrs. Cahill at the times material, did know the nature and quality of her act in leaving her husband and was able to distinguish between right and wrong with respect to her leaving and intention not to return.

We are not prepared to state that the trier of the fact is absolutely bound by the uncontradicted testimony of an expert. However, we do conclude upon the record of this case that the expert, Dr. Hurley, was competent and well qualified, his testimony was not impeached nor his credibility challenged, and his examination and history of Mrs. Cahill complete so as to afford him ample foundation for his opinion. It is further significant that his examination was conducted and his opinion reached as a result of the request of the family court commissioner. Under these circumstances the trial court was not at liberty to disregard the unimpeached, unequivocal ² and uncontradicted testimony of Dr. Hurley. This being so, the finding of the trial court that the desertion was not wilful is against the great weight and clear preponderance of the evidence.

In Caldwell v. Caldwell (1958), 5 Wis.2d 146, 154, 92 N.W.2d 356, 360, a divorce action for cruel and inhuman treatment defended upon the ground of uncontrollable irritability due to ill health, we stated:

'Some courts have...