Heffernan v. Heffernan

• Decision Date: 27 April 1965
• Citation: 27 Wis.2d 307,134 N.W.2d 439
• Parties: Bernard A. HEFFERNAN, Respondent, v. Anne E. HEFFERNAN, Appellant.
• Court: Wisconsin Supreme Court

Page 439

134 N.W.2d 439

27 Wis.2d 307

Bernard A. HEFFERNAN, Respondent, v. Anne E. HEFFERNAN, Appellant.

Supreme Court of Wisconsin.

April 27, 1965.

Walter J. Steininger, Milwaukee, for appellant.

Ruppa & Wegner, Milwaukee, Norman W. Wegner, Milwaukee, of counsel, for respondent.

BEILFUSS, Justice.

The defendant sets forth the following contention upon this appeal: (1) the evidence is insufficient to grant a legal separation, (2) the division of estate is inadequate, (3) permanent alimony should have been awarded, (4) the interest on the $15,000 deposited in court during the pendency of the appeal should be paid to defendant, and (5) the plaintiff should have been found in contempt of court for violation of a temporary order.

As to all of the issues raised by the defendant upon this appeal, her burden is substantial. She must either show that the findings of the trial court are against the great weight and clear preponderance of the evidence, or that the orders of the trial court constitute an abuse of judicial discretion.

Sufficiency of the evidence. The parties were married April 15, 1961. The action was commenced and the parties separated on or about May 4, 1963. A legal separation was requested bucause of religious preference. At the time of the trial the plaintiff-husband was sixty-four years old and the defendant-wife fifty-four years old.

This was the first marriage for the plaintiff. He had several relatives and maintained close family ties. He had been a successful dentist for many years and had achieved some additional financial success in side business ventures and investments. His net worth was about $200,000.

At the time of the marriage the defendant had been a widow for about 10 years. She had two mature children, both married. For some time prior to the marriage she had been employed as a medical assistant and was earning approximately $3,700 per year. Her assets were nominal and plaintiff had paid some of her obligations just prior to the marriage.

The courtship was for about one year. Both parties had lived in apartments. Shortly after the marriage, upon the insistence of the wife, the parties bought a $30,000 home and furnished it with expensive furnishings. The husband preferred to live in an apartment but acceded to the desires of the wife.

From the record it is readily apparent that the husband was modest and guarded in his expenditure of funds for personal convenience and comfort, and that the wife insisted upon expenditures and a standard of living deemed unnecessary and unreasonable by the husband. Their most serious basic difference was the expenditure of money.

We can easily conclude that the parties were incompatible but incompatibility is not a ground for divorce or legal separation recognized by the family code in Wisconsin. The question before us is, did the conduct of thw wife toward the husband amount to cruel and inhuman treatment as that term had been defined in the law of this state?

Throughout the years this court has on many occasions reviewed records wherein 'cruel and inhuman treatment' was considered. Excerpts from a few of these cases are as follows:

Reinhard v. Reinhard (1897), 96 Wis. 555, 558, 71 N.W. 803, 804:

'* * * The effect of such conduct upon a nervous, sensitive woman can better be imagined than described, and may have seriously impaired the plaintiff's health, as found by the court. This court has repeatedly held that personal violence, whether actual or threatened, or even gross and abusive language, is not absolutely essential to constitute cruel and inhuman treatment. * * *'

Kohl v. Kohl (1910), 143 Wis. 214, 218, 125 N.W. 921, 923:

'* * * Though the ill treatment may not be said to have operated directly on the body, it however was of a nature well calculated to inflict pain and suffering in body and mind, and thus to produce injurious results which made cohabitation dangerous to the defendant's health and life and to render it wholly impracticable for him to properly discharge his marital obligations. When the treatment of either spouse by the other so affects the injured party and the marriage relation, it is cruel and inhuman treatment in the law and constitutes grounds for divorce. * * *' Accord, Hiecke v. Hiecke (1916), 163 Wis. 171, 157 N.W. 747.

Banks v. Banks (1916), 162 Wis. 87, 88, 155 N.W. 916, 917:

'* * * The grievous mental suffering which may be inflicted by one spouse upon the other by means of words and conduct causing wounded feelings may result in the most serious cruel and inhuman treatment, and render cohabitation intolerable and unsafe, and wholly prevent the discharge of the marital duties by the innocent party. * * *' Bird v. Bird (1920), 171 Wis. 219, 221, 177 N.W. 4:

'* * * Whether certain conduct is cruel and inhuman depends upon the effect it has upon the offended spouse. Conduct which will cause great anguish and suffering to a sensitive nature will be passed unnoticed by one of a crass disposition. The evidence which tends to establish cruel and inhuman treatment on the part of the plaintiff must be considered with reference to its effect upon the defendant. * * *' See also Moen v. Moen (1946), 249 Wis. 169, 23 N.W.2d 472; Mentzel v. Mentzel (1958), 4 Wis.2d 584, 91 N.W.2d 101.

Gordon v. Gordon (1955), 270 Wis. 332, 339-340, 71 N.W.2d 386, 390:

'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. * * * It is a status wherein the law operates upon the weakness as well as the strength of human nature, and it will not be dissolved except for grave and substantial causes.' * * * However, 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. [Cases cited.]' Accord, nehls v. Nehls (1963), 21 Wis.2d 231, 124 N.W.2d 18; Voigt v. Voigt (1963), 21 Wis.2d 421, 124 N.W.2d 640; Mayhew v. Mayhew (1942), 239 Wis. 489, 1 N.W.2d 184.

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.

Applying these tests to the facts of this case, we find we have two mature, middle aged persons...