Edleman v. Edleman

• Decision Date: 23 June 1905
• Parties: EDLEMAN v. EDLEMAN.
• Court: Wisconsin Supreme Court

125 Wis. 270

104 N.W. 56

EDLEMAN

v.EDLEMAN.

Supreme Court of Wisconsin.

June 23, 1905.

Appeal from Circuit Court, Green County; B. F. Dunwiddie, Judge.

Action by Barbara Edleman against Eli Edleman for divorce and settlement of property rights. From judgment granting divorce at the suit of the wife on the ground of cruel and inhuman treatment and habitual drunkenness, and dividing the property of the parties between them, defendant appeals. Reversed in part.A. S. Douglas and J. L. Sherron, for appellant.

Colin W. Wright and William G. Wheeler, for respondent.

DODGE, J.

We are unable to discover, from examination of the evidence, any such clear adverse preponderance as to warrant us in setting aside the conclusion of the court that habitual intoxication and cruel and inhuman treatment were proved sufficient to constitute a ground for divorce. The argument urged by appellant that the evidence proves a condonation after most of the acts of misconduct were committed is met by the fact that it also proves a renewal of such acts after the mutual pledges which are claimed to constitute the condonation. It is entirely well established that condonation of marital offenses is conditioned upon subsequent good conduct, and, if similar misconduct follow, the condonation is abrogated, and the former causes for divorce are revived. Bishop, M., D. & Separation, § 308; Phillips v. Phillips, 27 Wis. 252;Crichton v. Crichton, 73 Wis. 59, 40 N. W. 638. As to the division of property, however, we cannot but feel that the trial court's decision is far too favorable to the plaintiff. This court laid down the rule at an early day that upon division of property, in the absence of special circumstances, the share of the wife might range from one-third to one-half. Varney v. Varney, 58 Wis. 19, 16 N. W. 36. Later cases have indicated our view that ordinarily one-third is a liberal allowance to the wife, unless there are special circumstances to warrant a greater allowance. Roelke v. Roelke, 103 Wis. 204, 78 N. W. 923;Martin v. Martin, 112 Wis. 314, 87 N. W. 232, 88 N. W. 215;Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 798;Lindenmann v. Lindenmann, 118 Wis. 175, 95 N. W. 96. In this case we can discover none of such circumstances. The defendant is evidently a broken-down man, doubtless irreclaimably addicted to habits of intoxication, and not in sound health either physically or mentally. Plaintiff, on the other hand, seems to be a capable and intelligent woman, in good health, able to manage affairs, and to make property productive. She also has a considerable property of her own sufficient to keep her from want, and has no children to support. She did not aid in accumulating the property defendant has. We cannot think an allowance to her of more than one-third at all justified. The property held by the two parties, but derived from the husband, were the homestead, household furniture, a piano, an adjoining lot with his shop on it, and certain personal property consisting of housemoving and carpenter tools, and perhaps a tract of land in Tennessee. The court awarded the homestead, household goods, and piano to the plaintiff, and awarded the shop lot and other personal property and the Tennessee property to the defendant. In placing values upon the real estate it is noticeable that the court adopted the lowest value mentioned by any one for the homestead, namely, $2,500, and the highest value estimated by any of the witnesses to the other lot and to the Tennessee property. He also held the defendant bound by an admissionin his answer that he had personal property to the amount of $2,000. In this immediate respect we think the court overlooked the fact that the defendant claimed to own the household goods and...