Caldwell v. Caldwell

• Decision Date: 07 October 1958
• Citation: 92 N.W.2d 356,5 Wis.2d 146
• Parties: Vivian CALDWELL, Respondent, v. Hugh M. CALDWELL, Appellant, Hugh M. Caldwell, Jr., Defendant.
• Court: Wisconsin Supreme Court

Page 356

92 N.W.2d 356

5 Wis.2d 146

Vivian CALDWELL, Respondent, v. Hugh M. CALDWELL, Appellant, Hugh M. Caldwell, Jr., Defendant.

Supreme Court of Wisconsin.

Oct. 7, 1958.

Divorce. Vivian Caldwell brought this action in November, 1956 against her husband, Dr. Hugh M. Caldwell, (1) for divorce from bed and board, (2) to set aside gifts made by the husband to his son by a former marriage, Hugh M. Caldwell, Jr., who was joined as a party defendant, (3) to declare an antenuptial agreement void, (4) for alimony and division of property, (5) for the custody of her six year old son, and for other relief. The husband opposed the relief sought by plaintiff, and counterclaimed for an absolute divorce. Hugh M. Caldwell, Jr., resisted the demand that the gifts to him be set aside.

For convenience, the parties will be referred to as Vivian, the doctor, and Hugh, Jr.

Vivian and the doctor were married in April, 1949. The doctor was then about 49 years of age and Vivian 23. The doctor was a prosperous physician having a good income and assets worth more than $100,000. Vivian had been employed for some years as his secretary and laboratory technician, and had only about $500 of her own. The doctor had one child of a former marriage, Hugh Jr., who was then 23 years of age. A child was born of his marriage to Vivian in February, 1952, and named Curtis C. Caldwell. After the first year or two the marriage was stormy. There were frequent quarrels and several times Vivian left home, always returning in a short time until her final departure in October, 1956. The doctor was not in good health when he married Vivian, and his health became worse during the marriage. He was hospitalized several times. At the time of the divorce he was unable to practice his profession, was drawing $200 a month benefits for total disability under insurance policies, and the prognosis was poor.

After a lengthy trial the court made findings of fact favorable to Vivian, on the basis of which judgment was entered granting her an absolute divorce on grounds of cruel and inhuman treatment, dismissing the doctor's counterclaim for divorce, declaring the prenuptial agreement void, awarding the custody of the child to Vivian and requiring the doctor to pay Vivian $100 per month for his support, setting aside a gift of stocks made by the doctor to Hugh Jr., on October 31, 1956, awarding Vivian $65,000 and approximately third of the husband's stock in two canning companies as division of property, disposing of certain other assets not material for present purposes, and ordering the doctor to pay Vivian's attorney $3,500 on account of attorney's fees in addition to $500 already paid. Both the doctor and Hugh Jr. appeal, and Vivian moves for review.

Callahan & Arnold, Columbus, Hugh M. Caldwell Sr., Rogers & Owens, Portage, for Hugh M. Caldwell, Jr.

Howard W. Latton, Portage, Rieser, Mathys, McNamara & Stafford, Madison, Robert W. Smith, Madison, of counsel, for respondent.

WINGERT, Justice.

The judgment must be affirmed in all respects save that dealt with in part 7 of this opinion.

Defendants' Appeal

1. Divorce properly granted to Vivian. The trial court found as facts that the doctor had, without justification, pursued a course of cruel and inhuman treatment of Vivian over a period of several years; that he had frequently threatened her with physical harm and violence and on numerous occasions had physically struck and mistreated her; that he frequently criticized her and manifested a violent and uncontrollable temper; that shortly before the action was commenced, while she was ill, he held a hammer over her head, threatening to strike her if she did not comply with his wishes; that he frequently criticized her in the presence of her child or third parties over her housekeeping, her cooking, and her practices as to bringing up the child, all without justification; that on several occasions Vivian had been forced to leave him temporarily because of his threats and physical treatment and abuses, and after each return to living together he re-commenced his cruel and inhuman treatment; and that as a result of this treatment Vivian had been made nervous and upset, and it is no longer safe for her to reside with the doctor.

These findings support the judgment of divorce. They have ample support in the testimony. While some of the facts found were disputed, and there was much testimony with respect to provocation from Vivian's own derelictions, the trial court was within its province in believing Vivian's version and discounting that of the doctor. We need not encumber the Wisconsin Reports with a detailed recital of the evidence on these unfortunate matters. We have examined it and conclude that it supports the findings.

Condonation was not shown. Vivian's repeated returns to the doctor after leaving him because of mistreatment did not amount to condonation, since condonation is conditioned on subsequent good conduct and it abrogated by similar misconduct thereafter. Schreiber v. Schreiber, 2 Wis.2d 484, 488, 87 N.W.2d 243. She did not return after the hammer incident. Her later testimony that she had forgiven the doctor because of his ill-health falls far short of condoning his violent and abusive acts, for condonation also requires a restoration of the offender to his former status. 1 Nelson, Divorce and Annulment, 2 Ed., sec. 11.01.

There is no room for the argument that Vivian failed to show sufficient impairment of her health to warrant a divorce. The trial court's finding that it was no longer safe for her to reside with the doctor, supported by evidence of repeated acts which would naturally cause a wife great fear and mental suffering and render serious impairment of health probable if continued, is enough. Cuts, bruises, black eyes and bloody noses are impairments of health, though minor and temporary. A wife is not obliged to suffer such abuses until a major and permanent impairment has been accomplished.

The principal contention made on behalf of the doctor is that his mistreatment of Vivian in the respects found by the court was due to an uncontrollable irritability resulting from his ill health. Mental incompetency is expressly disclaimed, but it is argued that when the doctor mistreated his wife he was ill to the point where his impulses in that direction were irresistible and it was impossible for him to restrain his actions.

There was evidence that among the ailments which practically incapacitated the doctor and caused him to be hospitalized frequently was cerebral arterio-sclerosis, which may impair mental functioning and create irritability and personality changes. Vivian admitted that the instances of violence took place when the doctor was having one of his 'slumps', and that things were better when he was feeling better. 'Most of the difficulties we had came about because of (his) ill health.' A physician who had treated the doctor on several occasions expressed the opinion that if he was suffering from 'this cerebral decomposition' (counsel's language, probably meaning cerebral arterio-sclerosis) when he threatened his wife, he would not be responsible for his actions, and if he threatened or struck his wife his action would be caused by his illness. The same witness testified that on one occasion he had had the doctor put in restraints when he was in one of his 'periods of recession.' Asked whether the doctor might be irritated and upset and still be responsible for his actions, the witness replied that 'it depends on the amount of irritation that is present. That is true of all of us.' In response to a question whether the doctor was showing signs of cerebral arterio-sclerosis on the occasion of one fracas with Vivian, the witness answered, 'Not being there, I certainly wouldn't know his condition at that time.'

On the other hand, the doctor himself testified that his mental condition had never been affected during the marriage 'unless I was under anesthesia or something like that,' that he did not believe he had cerebral arterio-sclerosis, and that no doctor ever had told him that he had it or that he had a mental condition.

On this and other evidence the trial court found that the doctor was 'fully mentally competent' when the acts of cruel and inhuman treatment took place, and that such acts were committed without justification. No finding was made on the matter of irresistible impulse, although in his accompanying opinion the learned trial judge expressed the view that many of the acts complained of were the result of the doctor's illness.

The finding that the doctor was mentally competent at all material times is sustained by sufficient evidence. Undoubtedly, as the medical witness testified, the doctor has 'a hair trigger disposition', but that alone is no defense. On this record we are unable to say that it was so clearly proved that all the acts of cruel and inhuman treatment, or indeed any of them, were the result of irresistible impulse attributable to disease, that a finding to that effect should have been made.

We therefore find it unnecessary to consider whether irresistible impulse of pathological origin would be a defense to the divorce action if proved and found to have been present with respect to all of the acts of cruel and inhuman treatment.

This court has apparently not decided the extent, if any, to which mental infirmity may be a defense to charges of cruel and inhuman treatment in a divorce case. Many cases on the subject from other jurisdictions are cited in Annotation 19 A.L.R.2d 144, and in 1 Nelson, Divorce and Annulment, 2 Ed., Secs. 6.09 and 9.06. Some courts have stated broadly that insanity is a good defense, but the majority view appears to be that if the nature of the mental illness is such that the victim is conscious of what he does and knows that what he does is not right, although in doing the act he acts under the compulsion of a diseased mind which prevents him from...