Gray v. Gray

• Decision Date: 10 October 1939
• Citation: 232 Wis. 400,287 N.W. 708
• Parties: GRAY v. GRAY.
• Court: Wisconsin Supreme Court

232 Wis. 400

287 N.W. 708

GRAY

v.GRAY.

Supreme Court of Wisconsin.

Oct. 10, 1939.

Appeal from a judgment and order of the County Court of Chippewa County; Dayton E. Cook, Judge.

Affirmed.

Action for divorce from bed and board by Amelia M. Gray against George Gray on the grounds of cruel and inhuman treatment and failure to support. The husband counterclaimed for absolute divorce on the ground of desertion. Judgment was granted on the counterclaim and $5 a month alimony was awarded to the plaintiff. After judgment the plaintiff moved for a new trial on affidavits charging perjury of the husband as to his place and manner of residence and charging a continuous course of adultery by living with a woman other than his wife. The motion was denied. The plaintiff appeals from the judgment and the whole and the several portions thereof and from the order denying plaintiff's motion for a new trial and from an order denying the motion of plaintiff to allow attorney's fees for trial of the case in addition to the amount of the temporary order for $25 attorney's fees. The facts deemed controlling are stated in the opinion.Frawley & Frawley, of Eau Claire, for appellant.

Stafford & Stafford, of Chippewa Falls (John Frampton, of Chippewa Falls, of counsel), for respondent.

FOWLER, Justice.

The action is by a wife for a divorce from bed and board for cruel and inhuman treatmentand failure to support with counterclaim for absolute divorce for desertion. Judgment was granted on the counterclaim. On appeal from the judgment the plaintiff assigns as error: (1) Refusal to grant the plaintiff's judgment of divorce from bed and board; (2) granting of the absolute divorce to the defendant; (3) awarding only $5.00 per month alimony to the plaintiff; (4) denying attorney's fees to counsel for plaintiff in addition to the $25 temporary allowance therefor; (5) denial of plaintiff's motion for a new trial. The several assignments of error will be taken up under the above numeral headings.

The complaint alleges that the defendant for many years prior to the separation treated the plaintiff in a cruel and inhuman manner by constantly nagging, complaining, swearing and using abusive language towards the plaintiff in the presence of the children and other members of the family, and by gambling; that for these reasons the plaintiff was about to leave defendant in 1923 but continued to live with him until 1925 by reason of his then promising to reform and treat her properly, but failed to keep such promises. The plaintiff also alleged a second cause of action for failure to support her since the separation, in which she charged the defendant with running around with other women.

The counterclaim alleges that the plaintiff at the time of the separation wilfully deserted the defendant and from the time of separation to the commencement of her action wilfully continued her desertion. The defendant by answer denied the allegations of the complaint and the plaintiff by reply denied the allegations of the counterclaim.

(2) We will first take up plaintiff's assignment of error (2). The parties were married in 1895. They had three children, all now adults. At the time of trial the parties were each sixty-four years old. The defendant has been employed continuously since the occurrence of the matters alleged as ground of action in the complaint and counterclaim as a railroad trainman and conductor, and earns and has earned approximately $160 to $165 per month during the entire period. The parties separated in March, 1925, and have lived apart since. The plaintiff commenced her action in 1937. Thus the parties lived together thirty years before their separation, and plaintiff began her action nearly thirteen years after the separation occurred.

The defendant's claim of desertion is based on evidence that at the time of the separation of the parties the plaintiff refused to move with him to Chippewa Falls where he was required to live to keep a job on the railroad. The parties were living at Eau Claire. The defendant had been on a short run from Eau Claire to Chippewa Falls. This run was to be abandoned. He was required to take a main line run, Irvine to Minneapolis, and claims he was required to reside at one of the terminals in order to hold his job. The defendant testified that he notified his wife that he had secured the Irvine-Minneapolis run and had to move to Chippewa Falls, of which Irvine was a part, and that she said “you may move but I won't.” He further testified that when he made his first run from Irvine to Minneapolis he told the plaintiff that if she made up her mind she would not move to Chippewa Falls to have his clothes packed in his trunk when he got back from the run. When he returned his trunk was packed. He said to the plaintiff, “This looks as though I am going to move” and she answered “You can take your clothes and move out.” Irvine is the junction point of the stub line from Eau Claire with the main line of the railroad for which the defendant worked. It was at the time of the separation a part of Chippewa Falls, but now is about a mile from its city limits. The defendant testified that he had arranged to rent four rooms or a four room house, it does not appear which, on Water Street which is not in Irvine, but in Chippewa Falls. The plaintiff admitted in her testimony that she knew that it was necessary for her husband to live at Chippewa Falls or at Irvine; that she refused to move there with him; that the reason that she refused to move was that she was among people in Eau Claire that she knew, would be among strangers, and she had a chance in Eau Claire to make some money. She intended to run a little rooming house there. The trial judge stated at the close of the testimony that he was satisfied the defendant told the truth. If so he was entitled to a divorce for desertion when the plaintiff refused to move with him to Chippewa Falls. He also testified that he went on two occasions after he had moved to Chippewa Falls to the place in Eau Claire where plaintiff was residing. The defendant and a sister were running a rooming and boarding house. He paid for his meals on these occasions. He talked to his wife. She was lying down. He told her she was not able to do the work and coaxed her to come to Chippewa Falls to live. She said she would not live in Chippewa Falls on a bet. A little later he went the second time. After laying fifty cents on his plate for a meal he laid down a $10 bill. The plaintiff's sister told the plaintiff not to accept it. She didn't need it. The plaintiff asked what the bill was for and defendant said it was for her, she might use it, it might come handy. The plaintiff said it only caused trouble for her. She wished he would not come any more. She also said she was not cooking for him any more. If this testimony of the defendant is true, and the trial judge said at the close of the trial that he believed it was, there was a continuous desertion.

[1] In the case of Gleason v. Gleason, 4 Wis. 64, the rule was laid down that the husband has the right to select the place where the family shall reside, and that if the wife unreasonably refuses to remove with him to the place he selects, her conduct constitutes wilful desertion under the divorce statute. Such has remained the rule in this state ever since. Such has been referred to or stated as the rule in two cases involving homestead rights, Godfrey v. Thornton, 46 Wis. 677, 683, 1 N.W. 362, and Beranek v. Beranek, 113 Wis. 272, 277, 89 N.W. 146, and in two involving divorces, Friend v. Friend, 65 Wis. 412, 27 N.W. 34, and Schopps v. Schopps, 188 Wis. 151, 159, 205 N.W. 829. From the Gleason and Schopps cases cited it appears that to warrant a judgment for wilful desertion on this ground it must appear that the refusal of the wife is unreasonable.

[2] In the instant case there is no express finding that the wife's refusal to remove was unreasonable, but from the oral statements of the trial judge made at the conclusion of the trial it is plain that he so considered it, and in that view we concur. Her own testimony fully supports that view. Thus the granting of the divorce upon the husband's counterclaim was correct and the judgment of the court must be affirmed so far as it decides the status of the parties.

[3][4][5][6][7][8] (1) What is said under (2) renders it unnecessary to say much under this heading. If the defendant was entitled to an absolute divorce on his counterclaim, the plaintiff could not be entitled to a divorce from bed and board on her complaint. The charges in the complaint as to the defendant's gambling and running around with women, were without support in the evidence because based upon hearsay. The trial judge considered that the wife's refusal to go with the husband was not due to his conduct charged in the complaint but was due to her not being willing to move to Chippewa Falls. And while there is evidence of the plaintiff's ill-health, it does not appear that the conduct of the defendant caused it, or rendered it probable that by continuing to live with him it would so affect her health as to make such continuance dangerous, one of which is essential to constitute cause for divorce for cruelty not based on personal violence. Johnson v. Johnson, 107 Wis. 186, 83 N.W. 291, 81 Am.St.Rep. 836;Hiecke v. Hiecke, 163 Wis. 171, 157 N.W. 747, Ann.Cas.1918B, 497. As to the cause of action for non-support, a wife forfeits her right to support if she deserts her husband, and can not maintain an action for divorce on that ground. Friend v. Friend...