Chase v. Chase
| Decision Date | 04 June 1963 |
| Parties | Margaret CHASE, Appellant, v. Forrest CHASE, Respondent. |
| Court | Wisconsin Supreme Court |
Douglas Nelson, Madison, for appellant.
Edward Nager, Madison, for respondent.
We are considering the instant action as an appeal from the judgment as modified on July 25, 1962.
Therefore, the first issue to be determined is whether the trial court has power to retroactively modify the judgment of legal separation to one of absolute divorce.
Divorce in this state is a statutory proceeding and for this reason the issues on this appeal must be determined from the statutes themselves.
The causes for divorce or legal separation are the same. 1 But they are considered separate actions 2 and each has its own 'kind of judgment.' 3 Despite this fact the trial court has the power to grant either an absolute divorce or a legal separation on an action for either. They are both indivisible portions of the one action. 4 Sec. 247.09, Stats., provides:
In a similar vein, sec. 247.37(2), Stats., provides for modification of a judgment of divorce:
'So far as said judgment affects the marital status of the parties the court has the power to vacate or modify the same for sufficient cause shown, upon its own motion or upon the application of either party to the action, at any time within one year from the granting of such judgment, provided both parties are then living. * * *'
We determine that where, as in the instant action, the trial court, based upon the evidence, grants a legal separation and later upon application of the defendant within the year from the granting of that judgment modifies the original judgment so as to provide for an absolute divorce, such judgment as modified cannot be made retroactive under authority of the statutes. The trial court has only the finite power to modify prospectively. Therefore, the appeal from the judgment is timely because the effective date of the modified judgment is July 25, 1962. 5
The second issue to be determined is whether the trial court has power to change the judgment of legal separation to one of absolute divorce.
The trial court found that good cause had been shown by Forrest Chase to reconsider the decision and judgment of legal separation. Sec. 247.37(2), Stats., requires 'sufficient cause.' The general rule is that the findings of a trial court must be affirmed unless contrary to the great weight and clear preponderance of the evidence. In reviewing divorce cases, this court relies heavily upon the findings by the trial court. Reimer v. Reimer (1959), 7 Wis.2d 146, 96 N.W.2d 375.
A legal separation was granted initially in this action presumably for the reason that Margaret Chase testified that she desired that remedy for religious reasons, or in the words of the statute, conscientious objection.
Sec. 247.085(4), Stats., requires that conscientious objection to divorce be stated in the complaint. It was not so stated in the complaint to this action. Sec. 247.09, Stats., states further that such objection be confirmed at the trial by the party making such demand. Since conscientious objection to divorce as a ground for granting a legal separation was not stated in the complaint such ground is of no effect in this action.
The trial court in its findings of fact upon which it founded the granting a judgment of absolute divorce stated:
'* * * The court, in making such amended findings of fact has given consideration to the following:
'(a) The age of the parties hereto.
'(b) The lack of any substantial evidence pointing to any possibility of any reconcilation.
'(c) Remarriage by one or the other or both parties could be in the best interest of one or both of the parties or their children.
'(d) That each party still would be free to follow their own conscience or religious convictions as to whether or not to remarry in the future.'
These findings are supported by the evidence. No reconciliation had taken place in a period of almost one year, nor does the evidence support the proposition that a reconciliation would be possible.
The judgment is modified by striking the provision that it is retroactive to the date of the judgment of legal separation, and as so modified, is affirmed. Respondent may tax costs in this court.
The trial court granted a judgment of legal separation, the relief prayed for in the complaint. This was required of the court unless it found to do so would not be in the best interests of ...
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