Cudahy v. Cudahy
| Decision Date | 08 January 1935 |
| Citation | 258 N.W. 168,217 Wis. 355 |
| Parties | CUDAHY v. CUDAHY. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment and order of the Circuit Court for Milwaukee County; Charles L. Aarons, Circuit Judge. Affirmed in part; reversed in part.
The plaintiff, Michael F. Cudahy, commenced an action of divorce in August, 1932, against the defendant, Alice D. Cudahy. The case was tried to the court, findings of fact and conclusions of law were made and filed, and on June 8, 1934, judgment was entered granting plaintiff a divorce from defendant, together with primary custody of the minor child, awarding alimony to defendant of $1,200 a month, and allowing defendant's counsel fees in the sum of $8,500 and disbursements in the sum of $3,000. Defendant appeals from the judgment and from an order entered June 16, 1934, denying a stay of execution pending the appeal, and allowing defendant the sum of $750 attorneys' fees and $1,250 for disbursements on the appeal. The material facts will be stated in the opinion.Gold & McCann, of Milwaukee, for appellant.
Fawsett & Shea, and James D. Shaw, all of Milwaukee, for respondent.
The grounds upon which a divorce was awarded in this case were cruel and inhuman treatment of the plaintiff by defendant by means other than personal violence. The two principal questions upon this appeal are: (1) Whether the findings sustain the conclusions of the trial court that plaintiff is entitled to a divorce; and (2) whether the evidence sustains the trial court's award of the custody of the minor child to the plaintiff. The defendant also contends that the allowance of alimony is inadequate, as well as the allowance for counsel fees and disbursements in the defense of the action in the trial court and upon appeal.
It is apparent from the nature of the questions involved that the function of this court is almost solely to examine the evidence for the purpose of ascertaining whether the findings of the trial court are sustained by the evidence. Some notion of the difficulties which this entails may be had when it is said that this court is faced with a record of more than 3,000 pages, a printed case of upwards of 900 pages, and with briefs totaling nearly 500 pages. It is extremely difficult adequately to discuss the facts within the compass of a useful judicial opinion.
A vigorous attack has been made upon the findings of the trial court that defendant was guilty of cruel and inhuman treatment towards the plaintiff. Defendant contends that the evidence purporting to sustain them is indefinite as to the time or duration of the conduct, and that the acts charged are qualitatively trivial and of so little consequence that they cannot be considered to constitute cruelty. On the other hand, plaintiff argues that, while the conduct complained of was trivial and unimportant if each instance be isolated and considered alone, it shows a pattern of conduct which throws light upon the character of defendant as an egotistical, opinionated, nagging woman, with no regard for her husband, holding him and his relatives as well as his ancestry and religion in contempt, and evidencing this by a continuous succession of irritating conduct. A careful examination of the record convinces us that there is evidence to support the findings of the trial court, and that the findings are not against the great weight of the evidence. Klaus v. Klaus, 162 Wis. 549, 156 N. W. 963;Banks v. Banks, 162 Wis. 87, 155 N. W. 916.No useful purpose will be served by setting forth in detail the evidence upon which the findings are based. The reputation of the parties will not be enhanced, nor will their chances of future happiness be increased, by embalming the details of this family tragedy in the reports of this court. That the evidence might also sustain contrary findings, while debatable, is, of course, immaterial.
[1] It is also contended that there was condonation in this case. The principal ground for this contention is that in January, 1929, after the happening of many of the instances relied upon as grounds for divorce, plaintiff took trips to Bermuda and Vancouver with defendant; that in July and August he wrote letters expressing affection; that a few days before he left her in August, 1929, he had marital relations with her; that on Thanksgiving Day, 1929, he invited her and their son to be his dinner guests; that on Christmas Day, 1931, he kissed her at his sister's home; that he bought her a new car, and sent her a kindly telegram in November, 1931. The trial court found that the claim that marital relations had been resumed by the parties in August, 1929, was not true. The other actions on plaintiff's part were undisputed, and form the basis for the contention of condonation. There is no evidence of actual marital relations during the Vancouver or Bermuda trips, but defendant relies upon the presumption that such relations occurred. While cruel and inhuman treatment may be condoned, there is quite a difference between cruel and inhuman treatment consisting of a long succession of relatively trivial incidents, the whole pattern of which may constitute a ground for divorce, and single acts such as adultery or assault, which, taken alone, may constitute grounds for divorce. By hypothesis, the conduct of defendant would not in any of its single instances constitute a ground for divorce. It was the continuity and the persistence of this conduct that ultimately gave plaintiff a cause of action. If marital intercourse or continued living together is to be treated as condonation, then a spouse who hopes for improvement in conduct and continues marital relations in the hope that things may eventually straighten out is, by the very act of tolerance, barred from securing a divorce. On the other hand, should the spouse, after one or two instances of such conduct, sue for divorce, he or she would be met with the argument that one or two instances of this sort do not constitute grounds for divorce. The doctrine of condonation was not intended to create such a dilemma. It has no application here. Even if it did have, it would be a conditional forgiveness, and subject to the implied condition that the conduct shall not be repeated and that the cause of action shall be revived by conduct much slighter than that which preceded it. Crichton v. Crichton, 73 Wis. 59, 40 N. W. 638;Hickman v. Hickman, 188 Iowa, 697, 176 N. W. 698, 14 A. L. R. 929;Phillips v. Phillips, 27 Wis. 252;Edleman v. Edleman, 125 Wis. 270, 104 N. W. 56;Weichers v. Weichers, 197 Wis. 159, 221 N. W. 733.
[2] It being concluded that there is no merit in the contention that plaintiff is not entitled to the divorce, the next question is whether the court properly awarded the primary custody of the child to plaintiff. The evidence as to plaintiff's influence on the child and his qualifications to direct the growth and development of the child was all favorable to him. As to the mother, the evidence is conflicting. There was no contention that the mother is not of good moral...
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