Crugom v. Crugom

• Decision Date: 13 October 1885
• Parties: CRUGOM v. CRUGOM.
• Court: Wisconsin Supreme Court

64 Wis. 253

25 N.W. 5

CRUGOM

v.CRUGOM.

Supreme Court of Wisconsin.

Filed October 13, 1885.

Appeal from circuit court, Milwaukee county.Chapin, Dey & Friend, for appellant, Joseph Crugom.

Cotzhausen, Sylvester, Scheiber & Sloan, for respondent, Sarah A. Crugom.

COLE, C. J.

The question to be determined on this appeal is fairly stated in the brief of counsel to be whether the court has power to allow alimony to the wife and provide for the support of a child subsequent to the judgment of divorce, where no provision was made in either case in such judgment. The appellant obtained a judgment of divorce from the bond of matrimony, on the ground of desertion, in June, 1879. The respondent was served with process, entered an appearance in the action, and answered. Judgment was finally taken against her, by default, either through some misunderstanding between her and her counsel as to when the cause would be tried, or on account of her not having means to make a defense. She states in her petition that she was not aware a divorce had been granted until the month of October, 1881, when she engaged counsel to take steps to secure for her proper alimony. But her application to the court for that purpose was not actually made until November, 1884. The important question, therefore, in the case is whether, under the circumstances, the court had power to modify its judgment and make an allowance for her support. The question is a new one in this court, and but little aid can be derived from the decision in other states owing to the great dissimilarity in their statutes regulating the subject of divorce and giving alimony. The question must depend for its solution upon the construction of our own statute and the decisions which have been made under it. If the judgment of divorce had allotted alimony to the wife, or provided for the support of the child, it is clear the judgment in that regard might be subsequently modified or changed. This is the express language of the statute, (section 2369,) and such is the do trine of our adjudications where the question has arisen. Helden v. Helden, 7 Wis. 296;S. C. 11 Wis. 554;Bacon v. Bacon, 34 Wis. 594;Campbell v. Campbell, 37 Wis. 207;Hopkins v. Hopkins, 40 Wis. 462; and Cook v. Cook, 56 Wis. 195;S. C. 14 N. W. Rep. 33, 443. It is said in substance by the chief justice in Campbell v. Campbell that the statute proceeds upon the natural duty of the husband to support the wife after, as well as before, divorce, and that it should be liberally construed to enforce that duty. But if the suit of divorce passes to judgment before alimony is awarded, will an application for it subsequently come too late? It is difficult to see any valid reason for holding that it would, under the provisions of the statute. Mr. Justice TAYLOR, in Cook v. Cook, says: “The power of the court to award alimony to a wife in a divorce suit does not depend on the fact that some alimony was awarded at the time the judgment for divorce was granted. The fact that no alimony was then awarded by the court is no bar to its being afterwards awarded.” 56 Wis. 220, and 14 N. W. Rep. 33, 443. Of course, these remarks have no reference to a case where the question of alimony was tried in the divorce cause and denied. It may well be the law, even under our statute, if that issue were once tried and decided it would be res adjudicata for all time. It is so held in Kamp v. Kamp, 59 N. Y. 212, and Erkenbrach v. Erkenbrach, 96 N. Y. 456. Bu...