Heiting v. Heiting, 90

• Decision Date: 04 June 1974
• Docket Number: No. 90,90
• Citation: 218 N.W.2d 334,64 Wis.2d 110
• Parties: Mary L. HEITING, Respondent, v. Robert F. HEITING, Appellant.
• Court: Wisconsin Supreme Court

Page 334

218 N.W.2d 334

64 Wis.2d 110

Mary L. HEITING, Respondent, v. Robert F. HEITING, Appellant.

No. 90.

Supreme Court of Wisconsin.

June 4, 1974.

Cannon, McLaughlin, Herbon & Staudenmaier, Milwaukee, for appellant; L. William Staudenmaier, Milwaukee, of counsel.

William W. Ward, West Allis, for respondent.

BEILFUSS, Justice.

The defendant-appellant husband asserts several issues:

1. Was there sufficient credible evidence to support a finding of cruel and inhuman treatment?

2. Was it error to award the minor child to the respondent-wife and should this court remand the case for a new hearing on custody?

3. Was the award of support money excessive?

4. Did the court err in the division of property?

5. Did the court err in ordering the appellant-husband to contribute to the respondent-wife's appeal costs?

Appellant contends that the evidence is insufficient to support the trial court's finding that he has been guilty of a course of cruel and inhuman treatment of and towards the respondent.

In Jackowick v. Jackowick (1968), 39 Wis.2d 249, 252, 159 N.W.2d 54, 55, we stated:

'The definition of the phrase 'cruel and inhuman treatment' has often been reiterated by this court. Most recently, in Mecha v. Mecha (1967), 36 Wis.2d 29, 33, 152 N.W.2d 923, 926, the court quotes with approval from Heffernan v. Heffernan (1965), 27 Wis.2d 307, 310--313, 134 N.W.2d 439:

"This court, in the case of Heffernan v. Heffernan (1965), 27 Wis.2d 307, 310--313, 134 N.W.2d 439, reviewed a number of cases wherein 'cruel and inhuman treatment' had been considered and after reviewing these cases concluded (p. 312, 134 N.W.2d 439 at 442):

"'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.'''

The trial court made the following findings as to the cruel and inhuman treatment:

'NINTH: That the defendant has been guilty of a course of cruel and inhuman treatment of and towards the plaintiff in the manner following:

'(a) That the defendant was cold and indifferent in his attitude, demeanor, and disposition towards the plaintiff; that he showed her little love or no love or affection, never kissed her, nor did he embrace her or call her any endearing names.

'(b) That the defendant did not remember or make mention of the 1970 anniversary date of the marriage.

'(c) That the defendant did absent himself from the home of the parties often and regularly.

'(d) That the defendant failed to take the plaintiff to places of amusement or otherwise provide for her diversion.

'(e) That the defendant refused to assist the plaintiff or investigate the condition of her health when found upon the bathroom floor.

'TENTH: That such treatment of the plaintiff by the defendant has made the plaintiff sick and nervous which required the attendance of a physician for treatment of ulcers, and that such detrimental effect upon the plaintiff's health and well being have been corroborated.'

The standard of review has been stated as follows:

'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.' Gauer v. Gauer (1967), 34 Wis.2d 451, 454, 149 N.W.2d 533, 534.

While the grounds for divorce must be uniform in the various courts throughout the state, we nevertheless rely heavily upon the trial judge's findings. The same unwarranted and unreasonable conduct can cause varying reactions in different persons. The same conduct can cause grave physical or mental distress in one person and not another. This result, however, cannot be judicially accepted based only upon unreasonable subjective symptoms or testimony but must be supported by some objective manifestation of physical or mental distress. In making these rather delicate determinations as well as a proper evaluation of the testimony and the demeanor of the parties and other witnesses as to the grounds for divorce, the trial judge, by his face to face observations, is in a much superior position to make the findings and conclusions than the members of an appellate court who depend solely upon an impersonal record.

We do not intend to restate the evidence. We have reviewed the record and find the evidence, although minimal, sufficient to sustain the findings of fact set forth above. It is apparent from the trial court's statements which appear in the record that it believed that the facts of this case went beyond mere incompatibility. We agree that the disregard, complete indifference, hostility and lack of affection, marital relations and family associations over a period of almost three years did go beyond mere incompatibility and resulted in an intolerable family and marital existence. This condition did mentally and physically affect the plaintiff-wife to the extent that she became nervous, developed ulcers and needed medical services.

An evidentiary problem arose concerning the competency of the plaintiff-wife to testify as to her physical problems and mental distress. A party to a divorce action can testify as to his or her medical history, his or her own objective and subjective symptoms and the medical treatments received. The issue is not the precise mental or physical condition but whether he or she does have mental or physical distress attributed to the conduct of the other spouse. Expert medical evidence is, of course, preferable and in some cases perhaps necessary, but the party is competent to testify as to these conditions, Likewise, close relatives or associates can testify as to personal observations of objective symptoms; however, they should not be permitted to give medical opinions as to the nature of an ailment nor its cause. In this case the evidence is sufficient to permit the trial court to find the conduct of the husband had a grave effect upon the health of the wife.

The appellant-husband contends the court erred in awarding the custody of the minor child to the mother. Challenges to custody orders are usually characterized as an abuse of judicial discretion. However, where it is claimed the trial court applied the wrong rule of law it can be error. Here we find no error of law on the part of the trial court and the challenge, if any, must be upon a basis of an abuse of discretion.

The child, Cynthia, was eleven years old at the time of trial. She was a healthy, normal and quite well adjusted child who apparently had great affection for both her mother and father. Without question, both the father and mother are fit parents, love the child and can adequately provide for her. The trial court examined and evaluated the facts and found that because of the defendant's habits and custom in spending several hours a week on his outside interests, laudable as they may be, the best interest of the child required that the custody be awarded to the mother.

The Department of Family Conciliation recommended that the custody be awarded to the mother. The guardian ad litem recommended custody to the father. The guardian ad litem had made commendable and extensive efforts to effect a reconciliation between the husband and wife. The husband was willing to make an effort to reconcile but the wife was not. In his report to the court the guardian ad litem recommended the divorce be denied and in the event the divorce was granted that custody be awarded to the father. The guardian ad litem's reason for the custody recommendation was that he thought if the child was awarded to the father the mother would then effect a reconciliation and resume their marital status because of her desire to be with the child. The trial court rejected this reasoning and rightfully so. It is hard to believe that such use of a minor child could be in the best interest of the child.

In evaluating the discretion of trial courts in custody matters, this court has said:

'This court is firmly committed to the principle that the findings of fact and orders of the trial court concerning the custody of minor children in divorce actions will not be set aside or reversed unless clearly against the great weight and clear preponderance of the evidence, or unless there is a clear abuse of discretion.

"Custody matters are highly discretionary and the rule is well established that the trial court's determination will not be upset in the absence of a clear abuse of discretion.' Belisle v. Belisle (1965), 27 Wis.2d 317, 321, 322, 134...