Dallman v. Dallman
| Decision Date | 27 October 1914 |
| Citation | 159 Wis. 480,149 N.W. 137 |
| Parties | DALLMAN v. DALLMAN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; F. C. Eschweiler, Judge.
Suit by Robert Dallman against Emma Dallman for the annulment of a marriage. From a judgment for defendant, plaintiff appeals. Reversed and remanded.James D. Foley, of Milwaukee, for appellant.
Rubin & Zabel, of Milwaukee (Sol. J. Weil, of Milwaukee, of counsel), for respondent.
The plaintiff brought this action for annulment of a marriage alleged to have taken place on February 13, 1912, in the city of Milwaukee. The defendant had on August 6, 1903, married one William Vielbaum at Milwaukee, and on July 28, 1910 began an action for divorce against the latter, in which action an interlocutory judgment of divorce was entered on October 28, 1910, and a final judgment thereon on March 11, 1913. A demurrer to the complaint was sustained, and from that ruling the plaintiff appeals.
By subsection 3 of section 2351, Stats., it is ground for annulment of a marriage that at the time of contracting the marriage the man had a wife living or the woman had a husband living. Prior to the enactment of chapter 323, Laws of 1909, the subject of divorce was regulated by chapter 109, sections 2348 to 2376, Wis. Stats. 1898, which with the annotations and court rules found in that edition of the statutes gives a very fair general idea of the divorce laws of this state as then in force. These last came to us in the infancy of our existence as a state from some of the older states, and represented a vast amount of learning and experience on this subject, stretching back more than two centuries. Chapter 323, Laws of 1909, attempted extensive innovations in these laws, and repealed sections 2349, 2350, 2351, 2353, 2354, 2355, 2359, and 2360; amended to read as there set forth sections 2330, 2362, 2366, 2370, 2371, and 2373; and added 19 new sections, numbered and designated, according to the curious style then and now prevailing, sections 2351, 2353, 2354, 2355, 2360, 2360f, 2360g, 2360h, 2360h1, 2360h2, 2360h3, 2360h4, 2360i, 2360j, 2360k, 2360l, 2360n, 2360r, and 2360s. We are here concerned with section 2360k, which required, in all actions to confirm or annul a marriage or for divorce, in which it was determined by verdict or findings that the marriage be annulled or the divorce granted, an interlocutory judgment which should fully determine the rights of the parties, provide for alimony and the maintenance of children, etc., and determine the status of the parties. But the determination of status should not be effective, except for the purpose of an appeal to review the same, until after one year from the date when such interlocutory decree was entered. One year was given from the date of the last revision or modification of such interlocutory judgment in which to appeal. At the expiration of one year from the entry or from the last modification or revision of such interlocutory judgment, if it had not been reversed or modified on appeal, and if the court on its own motion, or on motion of either party, had not ordered otherwise, final judgment might be entered on said interlocutory judgment, and this judgment so entered should be final, conclusive, and nonappealable, and subject to modification only with reference to alimony and the care and support of children.
Subdivision 2 of said section 2330 read:
“It shall not be lawful for any person, * * * who is a party to an action for divorce from the bonds of matrimony, * * * in any court in this state to marry again * * * until the final judgment of divorce is entered; and the marriage of * * * any such person solemnized * * * before the entry of the final judgment of divorce shall be null and void.”
By chapter 239, Laws of 1911, which went into effect June 5, 1911, sections 2360k, 2360 l, 2374, and subdivision 3 of section 2330 of the said act of 1909, and section 3041 of the Statutes of 1898, were repealed. Subdivision 2 of section 2330, above quoted, was amended to read:
“It shall not be lawful for any person, who is a party to an action for divorce from the bonds of matrimony, in any court in this state, to marry again until * * * one year after judgment of divorce is entered, and the marriage of any such person solemnized before the * * * expiration of one year from the date of the entry of judgment of divorce shall be null and void.”
There was also by this act of 1911 added to the Statutes two new sections, numbered 2374 and 3041. The first of these provided that, where a judgment of divorce from the bonds of matrimony is granted, it shall not be effective, so far as it determines the status of the parties, except for the purpose of an appeal for one year. During this year the court giving the same may vacate the judgment, which act shall restore the parties to their marital rights. The time of appeal from the judgment is limited to one year, from an order modifying or revising it to six months, and at the end of a year, no appeal having been taken, and no modification or revision made, the judgment becomes final and conclusive without further proceedings. This act is in language and form of expression present and prospective, and contains no retroactive words. It contains no saving or other clauses relating to pending cases. There is no express repeal of subdivision 2 of section 2330, Laws of 1909, above quoted, but it is amended so as to read as above quoted.
[1][2][3][4] Counsel for respondent, looking at the case from the viewpoint of defendant's interest, and beginning with the act of 1911, has convinced himself, and seeks to convince this court, that the interlocutory judgment of October 28, 1910, was so affected by the statute which went into force on June 5, 1911, that the interlocutory decree became thereby a final decree, or the restriction on remarriage contained in the act of 1909 was thereby abrogated. In order to obtain a correct view of the question so presented, we must approach it also from the viewpoint of public interest, and from the right end, and ascertain the conditions existing upon which the amendment or repeal of 1911 operated. The defendant was married to Vielbaum in 1903, and in consequence of this could not contract another valid marriage while he was living, unless divorced from him. Section 2330, subd. 1; section 2351, subd. 3. These statutes were in force all the time from 1903, and are now in force. So one aspect of the question must be whether the defendant was divorced from Vielbaum at the time of her marriage to plaintiff. Manifestly she was not, unless the interlocutory decree entered on October 28, 1910, had that effect. It did not purport to have that effect, and was not so intended, and, if that effect be given it, it must be by force of what the Legislature did in 1911.
Grouping cognate provisions we have:
“Such judgment shall also determine the status of the parties to such action, but such determination of the status of the parties shall not be effective, except for the purposes of an appeal to review the same, until after one year from the date when such interlocutory decree was entered.”
Subdivision 2, § 2360k, c. 323, Laws 1909.
“At the expiration of one year from the entry * * * the final judgment may be entered. * * *”
“It shall not be lawful for any person, * * * who is a party to an action for divorce * * * to marry again * * * until the final judgment of divorce is entered.”
Sec. 2360 l, and subdivision 2, § 2330.
It seems to be clear that under these statutes the defendant could only be relieved from the legal impediment created by her first marriage by a divorce which had the legal effect of removing the impediment. Such divorce she had not obtained at the time of the marriage in question. Under the law of 1909 a final judgment was required in order to have that effect. She would only be free to marry again after final judgment under that act. The statute of 1911 did not expressly purport to change the effect of this interlocutory decree, or to make final what was theretofore interlocutory merely. Whether the Legislature could do so is an interesting question not involved in this case.
We have in this state the usual constitutional division of governmental powers, and in addition an express provision forbidding the Legislature to grant divorces. Section 24, art. 4, Const.; Wisconsin Telephone Co. v. Krueger, 115 Wis. 150, 90 N. W. 458;Sturgis v. Hull, 48 Vt. 302; Cooley's Const. Lim. (7th Ed.) p. 127. That question does not arise here, because the Legislature has not attempted to make the interlocutory decree final. If any such effect could...
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