Gordon v. Gordon

• Decision Date: 28 June 1955
• Citation: 71 N.W.2d 386,270 Wis. 332
• Parties: Richard B. GORDON, Respondent, v. Louise M. GORDON, Appellant.
• Court: Wisconsin Supreme Court

Page 386

71 N.W.2d 386

270 Wis. 332

Richard B. GORDON, Respondent, v. Louise M. GORDON, Appellant.

Supreme Court of Wisconsin.

June 28, 1955.

Spohn, Ross, Stevens, Lamb & Pick, Madison, Frank A. Ross, Jr., Chicago, of counsel, for appellant.

McDonald & MacDonald, Madison, for respondent.

STEINLE, Justice.

There was a sharp conflict in the evidence respecting the conduct of the husband and wife toward each other and toward the children. The evidence relating to the income of the husband and as to the valuation of the property was in dispute. The action was vigorously contested. More than 15 days were spent in trial. The testimony was voluminous.

The appeal is based on contentions that the evidence does not support the court's findings of cruel and inhuman treatment practiced by the wife toward the husband; that the evidence shows condonation by the husband of the wife's conduct; that the evidence shows a course of conduct by the husband toward the wife which constituted cruel and inhuman treatment, and that mutual recrimination ought to have been found; that the court's disposition of property matters, alimony and attorney fees was not justified by the evidence. The defendant also maintains that the court ought to have granted her motion for a new trial based upon proof presented by her of association between the husband and another woman; and that the court ought to have granted her motion for a review and modification of the judgment and a vacation of the judgment. The defendant challenges the court's disposition of the motion for temporary alimony, attorney fees and suit money pending appeal. Error is also claimed with respect to the court's striking of certain testimony presented by the wife at the trial, and further as to divergence in the court's written decision and its findings of fact with respect to the time when the wife was to remove her personal property from the home.

In its findings of fact the court determined that the parties are 51 years of age, were married in 1926, and have three children, a son born in 1931; a son born in 1935, and a daughter born in 1939. The husband is an osteopathic physician and surgeon who has enjoyed an extensive practice in Madison over a period of years. The wife is a university graduate. Both are in apparent good health and both are capable of earning their own livelihood. They own real estate in Madison consisting of a home valued at $36,500; a commercial and apartment building which, with fixtures and furnishings, is valued at $67,500; and an office building valued at $26,500. The real estate is mortgaged for an amount of approximately $30,000. The household furniture is valued at $6,200. Other furniture in the husband's office and apartment building is valued at $3,450. Additional assets include cash surrender value of husband's life insurance, $16,283; accounts receivable, $800; insurance claim, $1,136; two automobiles, several horses, and miscellaneous property, $3,000. Liabilities in addition to the real estate mortgage consist of unsecured bank loans totaling approximately $18,000. The court computed the husband's net worth at $112,000, virtually all of which was accumulated during the married life of the parties. The wife has a separate estate valued at approximately $23,000 which consists of some shares of stock and an inherited one-third interest in a farm in Minnesota. The court found also that there are liabilities contracted by the husband after the action was commenced which were incurred under unusual circumstances, and which were not to be considered in the division of the estate. The court determined that while the husband's income was meager in 1954, and that while his records indicated a substantial loss in 1953, nevertheless, in previous years, his annual income exceeded $10,000, and that his previous earning capacity would doubtlessly be resumed. Under the order for temporary allowances for the wife pending the trial she became entitled to the sum of approximately $10,000, part of which was unpaid.

With reference to the conduct of the parties the court found:

'That on several occasions without justifiable cause defendant became violently angry toward plaintiff. That she struck him on several occasions two of such occasions being when he was driving an automobile on a public highway when he was not prepared to avoid the blow.

'That on one occasion without just cause and in a fit of anger she threatened to kill plaintiff with a butcher knife, first chasing him out of the house, then across the yard and off the premises.

'That for several years prior to the starting of the divorce proceedings the parties occupied separate sleeping rooms, and that frequently within the last year or two of such period defendant would enter the room of plaintiff after he had retired, and in a turbulent manner and without just cause berate him in a loud and angry voice, sometimes for hours. Such treatment was calculated to and did cause plaintiff to lose sleep and to become mentally upset and disturbed.

'That for several years prior to the commencement of the divorce action defendant, without just cause, carried on toward plaintiff a course of nagging and fault finding, which included finding fault with his not being home on time for meals, and calling him over the phone at the office and finding fault with him while he was busy working with patients.

'That the foregoing acts on the part of the defendant have caused the plaintiff great shame, humiliation and mental anguish, has affected him physically and emotionally and reduced his efficiency in the carrying on of his professional duties, and that it is no longer safe or proper that the marriage relationship of the parties should be continued.

'In addition to a denial of cruel and inhuman treatment defendant's answer sets forth certain conduct on the part of plaintiff which allegations are calculated to raise inferences to the effect that the plaintiff was not in a position to appeal to the equitable powers of the court. Because of their nature such allegations must be proved by a clear and satisfactory preponderance of the evidence. The record contains no such proof. Defendant's claim of misconduct on plaintiff's part, which charges were denied by the plaintiff and by Pearl Hustad, the young lady who, the defendant charged, was involved, was not sustained by the evidence. A careful examination of the testimony in the record shows nothing more than suspicions and innuendos in this respect.

'Defendant further claimed that if any acts of cruel and inhuman treatment were committed by her that they were condoned and forgiven by plaintiff as the parties lived as husband and wife and enjoyed marital relations until shortly before the commencement of the divorce action including a trip made by the parties to Atlantic City and New York City in July 1952. The court finds that there was produced no satisfactory evidence to support such claim and especially as to marital relations between the parties on such trips to Atlantic City and New York City.

'At the trial the children of the parties appeared as witnesses for the plaintiff. It was plain that their attitude toward their mother was bitterly antagonistic. They have been living with their father, and plaintiff. They testified that it was their desire that their father have their custody. He asked that he have their custody. The court finds him a fit and proper person to have such custody.'

Under provisions of the judgment an absolute divorce was decreed to the husband. The custody of the minor children was awarded to him. Payment of arrearages for temporary allowances was ordered. The plaintiff was also directed to pay an obligation of $631.21 contracted by the parties. By way of division of estate and in lieu of alimony and attorney fees there was awarded to the defendant a sum of $40,000 with right of lien for such amount against the real estate until payment was made; household furniture of the value of $1,500 of her selection; a piano and a horse. The title to the real estate and to the residue of the personal property was awarded to the plaintiff, subject to the encumbrances.

Findings of the trial court are not to be disturbed on appeal unless they are contrary to the great weight and clear preponderance of the evidence. Swazee v. Lee, 1951, 259 Wis. 136, 137, 47 N.W.2d 733. Each of the parties presented evidence with respect to the ill treatment asserted in the pleadings. Each side also produced evidence respecting the husband's income and the valuation of the property. To set forth the detailed evidence upon which the findings of fact are based would unduly prolong this opinion and serve no useful purpose. An examination of the record reveals that in formulating its findings, the trial court carefully considered all of the evidence and construed the same in the light of basic principles that must be employed in determining whether the conduct of a spouse is cruel and inhuman under statutes entitling a divorce upon such ground.

There is no yard stick definition for cruel and inhuman treatment. Each case depends for construction on its own peculiar circumstances. 'Parties cannot be divorced on the ground of cruelty merely because they live unhappily together from unruly tempers or marital wranglings. Married persons must submit to the ordinary consequences of human infirmities and of unwise mating, and the misconduct which will be ground for a divorce as constituting cruelty must be serious. Mere austerity of temper, petulance of manners, rudeness of language, or even occasional sallies of passion, if they do not threaten bodily harm or impairment of health, do not as a general rule amount to cruelty. As has well been said, the husband and wife are bound to exercise greater efforts for removing misapprehension, allaying quarrels, smoothing the road to concord, and effecting reconciliation than are people in other relations of life. The marriage...