Hiecke v. Hiecke

• Decision Date: 02 May 1916
• Parties: HIECKE v. HIECKE.
• Court: Wisconsin Supreme Court

163 Wis. 171

157 N.W. 747

HIECKE

v.HIECKE.

Supreme Court of Wisconsin.

May 2, 1916.

Appeal from a Judgment of the Circuit Court for Milwaukee County; W. J. Turner, Circuit Judge. Affirmed.

Action for a divorce on the ground of cruel and inhuman treatment.

Defendant answered, denying all allegations upon which the claim of cruel and inhuman treatment was based, and pleading misconduct of plaintiff, palliating, if not justifying, any improper treatment of her.

As the trial court viewed the evidence, it established the following situation:

(1) The parties intermarried at the City of Milwaukee, Wisconsin, May 25, 1898. (2) Since that time they have resided there. (3) They have four children, a son fifteen years old, a daughter twelve years old, a daughter ten years old, and a daughter seven years old,--all of whom have resided with plaintiff since June 29, 1914. (4) On many occasions defendant slighted plaintiff and did not speak to her, causing her much mental anguish. Upon her kindly protesting against such treatment, she was told by defendant that it was none of her business and if she did not like it she could go. In July, 1898, she was compelled to leave defendant and to reside with her parents. Following their advice and that of her brother, she returned, but defendant refused to speak to or forgive her. (5) On each occasion of the birth of a child, defendant neglected plaintiff by purposely remaining away from home. On one such occasion, though he was only four blocks away and knew that she was alone and in need of her nurse and physician, he refused to answer her urgent call for his presence. (6) He has been accustomed, for days, weeks and months at a time, to refuse to speak to her. (7) June 25, 1914, he was out till 2:30 the following morning; then returned home intoxicated, took a valuable new blanket she had purchased, made it into a ball and threw it at her, stating that it was a cheap lodging-house blanket; at the same time, in the presence of the oldest son and a servant, using very vile and abusive language toward her, and he was accustomed to do that. (8) About six years prior to the commencement of the action, he returned home under the influence of liquor and, with his clothing offensive from tobacco and cigarette smoke, entered plaintiff's apartments, whereupon she spoke to him as to his condition and he left the room, since which time they have not cohabited as man and wife. (9) On social occasions he customarily neglected her. (10) Usually she and the children have spent the summer months at her mother's at Cedar Lake, Wisconsin, defendant, as a rule, visiting her Saturday nights and remaining until Sunday night; but spending very little time with the family. He would, customarily, go fishing and then to a neighboring hotel and stay most all night drinking. In 1913 and 1914 he did not visit plaintiff and the family at all during their sojourn with her mother of some three months each season. (11) On Christmas, 1912, he refused to accept a Christmas present from her, or to dine with her and the family. He spent the day with his sister and there distributed presents to his children. (12) She possesses improved, income yielding real estate for which she paid $5,800. On account of necessary outlays for repairs, the net income therefrom has been less than two per cent. (13) She has household furniture in her possession worth about $500 which was a gift from her parents. (14) He is a strong man of fair business capacity, a pharmacist by occupation, and has conducted a drug store, under an arrangement with his father, for years. The assets of the business are worth $9,000 and he has some contingent interest therein. (15) He owns one-third of the $60,000, par value of the stock of the Turbine Sewer Machine Renovating Company, the value of which is nominal. The stock has not all been paid for. (16) He owns a city lot worth one hundred dollars. (17) He owns a policy of life insurance on which he has paid, as the annual premium, $100.00 per year for fourteen years. (18) For six years he has given her $30 per week for household expenses, paid $20 per month for rent of the home, and paid about $15 per month for fuel bills, besides clothing the children. (19) She is a suitable person to have the custody of the children and it is for their interests that she should have such custody.

On such facts the court concluded as follows: Plaintiff is entitled to judgment of absolute divorce on the ground of cruel and inhuman treatment, and to be awarded custody of the children. The policy of insurance should be assigned to her, defendant to pay the annual premium until maturity. He should pay her $400 in six months, the same in twelve months, and the same in eighteen months. He should be divested of all interest in the household furniture. He should pay her attorneys $100 for attorney's fees and pay the taxable disbursements of the action. He should pay, until the further order of the court, $80 on the first day of each month for the support of the minor children. He should have the corporate stock mentioned, and contingent interest in the drug store assets. Such distribution shall be a final division of property subject thereto.

Judgment was entered according to such conclusions except the provision for support of the children was made payable in weekly installments.

There was a retaxation of costs as to $120 claimed by a court commissioner for service in the action for expense incurred in listing and numbering checks. That was reduced to $25.00.Adolph G. Schwefel, of Milwaukee, for appellant.

Lorenz & Lorenz, of Milwaukee, for respondent.

MARSHALL, J.

[1] It is considered that--in the light of the rules governing the matter, particularly, that the findings are to be presumed correct unless against the clear preponderance of the evidence, giving due weight to the fact that the trial judge saw the witnesses and had a far better opportunity than is afforded by reading the printed history of the trial for weighing their testimony--the conclusions of fact here cannot properly be disturbed.

[2] It is contended that, though the facts found stand as verities, the divorce should not have been granted because of proof that the respondent was guilty of much matrimonial misconduct. That misconduct of one party to a marriage contract would justify or require, under some circumstances, denial of judicial assistance to such party to nullify such contract, is well established by the decision of this court. That rule, so far as it relates to an absolute bar to a guilty party successfully prosecuting an action for a divorce, is limited, in general, to cases where both parties have been guilty of a legal cause therefor, Pease v. Pease, 72 Wis. 136, 39 N. W. 133;Hubbard v. Hubbard, 74 Wis. 650, 43 N. W. 655, 6 L. R. A. 58;Voss v. Voss, 157 Wis. 430, 147 N. W. 634; though it has been sometimes extended by judicial discretion to situations where the wrongful conduct of the complainant did not constitute a ground for a divorce, but was induced by such conduct of the defendant.

The doctrine of recrimination, in relation to divorce actions, is quite ancient, as indicated in Bishop on Marriage, Divorce and Separation, Vol. 2, Sections 372 to 376, inclusive. It was a question, as will be seen, for a time, whether fault of the plaintiff should bar a divorce unless of the same grade as the fault charged against the defendant, as for instance, whether, in case of the latter charge being adultery, cruel and inhuman treatment on the part of the complainant would bar a recovery. The negative has been held in some state courts, Dillon v. Dillon, 32 La. Ann. 643; but, in general, it has been held in this country that conduct of the plaintiff constituting any cause for a divorce is a bar to an action for a divorce by such party on any ground, Sections 377, 378, Vol. 2, Bishop, Marriage, Divorce and Separation. Such is the rule, as stated in Pease v. Pease, supra. The prevailing doctrine is thus...