Gauer v. Gauer

• Citation: 34 Wis.2d 451,149 N.W.2d 533
• Parties: Joseph GAUER, Respondent, v. Bernice B. GAUER, Appellant.
• Decision Date: 11 April 1967
• Court: United States State Supreme Court of Wisconsin

Page 533

149 N.W.2d 533

34 Wis.2d 451

Joseph GAUER, Respondent, v. Bernice B. GAUER, Appellant.

Supreme Court of Wisconsin.

April 11, 1967.

Godfrey, Godfrey, Neshek & Conway, Elkhorn, for appellant.

No appearance or brief for respondent.

HEFFERNAN, Justice.

1. Was the finding of the trial court that the acts of the defendant constituted cruel and inhuman treatment contrary to the great weight and clear preponderance of the evidence

It is settled law that the findings of fact of a trial court on appeal from a divorce judgment must be affirmed unless contrary to the great weight and clear preponderance of the evidence. Merten v. National Manufacturers Bank (1965), 26 Wis.2d 181, 186, 131 N.W.2d 868. Moreover, great weight is placed upon the discretion of the trial judge. We have stated:

'In divorce cases great and almost controlling weight is given to the decision of the trial judge. He has the parties and witnesses before him. In many if not in most cases he has some knowledge of the situation or can easily inform himself in regard to it and is in a better position to pass upon the rights of the parties than is an appellate court.' Rohloff v. Rohloff (1943), 244 Wis. 153, 158, 11 N.W.2d 507, 509.

In the recent case of Heffernan v. Heffernan (1965), 27 Wis.2d 307, 312, 134 N.W.2d 439, 442, this court summarized the standard to be employed by a trial court in determining whether a divorce should be granted where the action is brought for alleged cruel and inhuman treatment:

'From these cases we conclude that no precisely described or enumerated acts of one spouse toward another can be defined as cruel and inhuman treatment. In order to constitute cruel and inhuman treatment, such as to warrant the granting of a divorce or a legal separation, the court must consider the totality of conduct and the detrimental effect it has upon necessary marital relationships and its grave effect upon the health of the other spouse. The conduct of the offending spouse must be unreasonable and unwarranted, it must render the parties incapable of performing their marital duties, and it must have a detrimental effect upon the physical or mental health of the offended spouse. In applying these tests the court should be cognizant of the desirable public policy in maintenance of marriage and family. The court may properly consider the age of the parties, the duration of the marriage, and presence and age of the children and the probability of delinquency, and the public dependency of the parties or the children.'

There was testimony that the wife constantly nagged the plaintiff about his work, about getting home late, about not buying her enough clothes, about bringing friends home, about disciplining the children, about visiting his brother, and about bowling with friends. Joseph Gauer testified:

'She kept hollering at me and hollering at me; and then when I would come home tired at night--after working twelve hours a day, I'd come home and I couldn't get no rest. She would jump on me when I walked in the door about this and about that.'

He testified that this conduct had been continuous through most of the period of the marriage and had lasted seventeen or eighteen years. Gauer stated that this conduct made him nervous to the extent that he could not concentrate on his job and that sometimes he was afraid to come home at night. He stated that her conduct had made him completely upset. He stated also that he had been physically assaulted by her and that, on one occasion, she had slammed the door on his arm, she had poured hot coffee in his face, and, over a period of seven or eight years, she would snap a towel at him. She also threatened to shoot him. He quoted her as saying, 'If I had a gun, I would shoot you.'

Mrs. Gauer denied all of the incidents testified to by the plaintiff and denied that her general conduct was of the type described by the plaintiff. She stated, 'We have never argued hardly any.'

The trial judge made a specific finding that, in view of the demeanor, attitude, and appearance of the witnesses, and considering the evidence as a whole, he accepted as a verity that the acts were as testified to by the plaintiff. We have consistently held that the credibility of the evidence is a matter for the trial court. Subrt v. Subrt (1957), 275 Wis. 628, 630, 83 N.W.2d 122; Gordon v. Gordon (1955), 270 Wis. 332, 340, 71 N.W.2d 386.

In Gordon v. Gordon, supra at page 339, 71 N.W.2d 386, although we concluded that a divorce would not be granted on the grounds of cruelty merely because of marital wrangling, we nevertheless stated at page 340, 71 N.W.2d at page 390:

'* * * treatment which does or is well calculated to impair the health of a party, makes the marriage state intolerable and renders a party incapable of performing his or her duties in married life, satisfies the 'cruel and inhuman treatment' referred to in the statute.'

In Bird v. Bird (1920), 171 Wis. 219, 221, 177 N.W. 4, we pointed out that whether certain conduct is cruel and inhuman depends upon the effect it has upon offended spouses. The trial judge herein reviewed the evidence in detail and pointed out that '* * * the individual acts complained of by the plaintiff, standing alone, might well be considered as trivial.' However, the court correctly stated that it '* * * must consider the totality of conduct on the part of the defendant and the detrimental effect it had upon the plaintiff and upon this marriage * * *.' It found:

'* * * that the treatment of the plaintiff by the defendant was unreasonable and unwarranted and was conduct of the type which did impair the mental and physical health of the plaintiff to the extent that the foundation of the marriage was destroyed and the marriage state became intolerable.'

It is apparent that the evidence produced at trial is more than ample to satisfy the test. The findings are not contrary to the great weight and clear preponderance of the evidence. No evidence contrary to the testimony of the husband was produced other than the flat assertion of the wife that there were no quarrels, and the trial judge determined to disbelieve such testimony. We therefore conclude that the divorce was properly granted.

2. Should this court deny the divorce on grounds of recrimination

This court subscribes to the doctrine of recrimination, holding:

'* * * if the conduct of both parties has been such as to furnish grounds for divorce, neither of the...