Hitchcock v. Hitchcock, 75-298
| Decision Date | 01 June 1977 |
| Docket Number | No. 75-298,75-298 |
| Citation | 254 N.W.2d 230,78 Wis.2d 214 |
| Parties | Margaret A. HITCHCOCK, Respondent, v. Gerald M. HITCHCOCK, Appellant. |
| Court | Wisconsin Supreme Court |
Action for divorce commenced by the respondent-wife, Margaret Hitchcock, against appellant-husband, Gerald M. Hitchcock, based upon cruel and inhuman treatment. The husband did not counterclaim, but simply answered denying that he had pursued a course of cruel and inhuman treatment and requesting that the complaint be dismissed.
On October 7, 1974, trial was held and the plaintiff wife testified as to numerous problems and incidents in the marriage in support of her claim of cruel and inhuman treatment. Since the facts surrounding the wife's claim are not relevant to the matters upon appeal, there is no need to recite them herein.
The defendant husband testified, generally refuting the testimony of his wife. In addition, however, the defendant presented testimony concerning adulterous conduct on the part of the plaintiff. The presentation of such evidence was in support of his request for dismissal of the complaint upon the doctrine of recrimination. The husband testified that on one occasion about seven years prior to the divorce action he had returned home unexpectedly and discovered the plaintiff unclothed in the bedroom with a man. During her direct testimony, the plaintiff wife admitted that this incident had taken place, but stated that it was the only time that it happened and that she continued to live with her husband and have marital relations after the incident.
Dawn Osgood also testified for the husband regarding adulterous conduct of the plaintiff. Mr. Osgood testified that on April 10, 1974, approximately two months after the divorce action was commenced and the parties had separated, he and the defendant husband had gone to the plaintiff's trailer home and, looking through a window of the home, observed the plaintiff in bed making love with a man. The defendant gave no testimony regarding this incident. The wife denied any adulterous conduct other than the incident seven years earlier.
On October 21, 1974, the adjourned date for limited additional testimony, the defendant moved to amend his answer to allege the adulterous incident of April 10, 1974. This motion was opposed upon the ground that the motion was not timely and that the amendment would prejudice the plaintiff. The plaintiff further claimed that the defense of recrimination could not be raised by the defendant because that defense was abolished by a 1971 amendment of sec. 247.101, Stats. At the close of the trial on October 21, the trial court took the motion to amend and the merits of the case under advisement.
On May 5, 1975, the trial court rendered its decision from the bench. The court concluded that the plaintiff had established cruel and inhuman treatment justifying a grant of divorce from the defendant. The court further determined that the legislature had not excluded the doctrine of recrimination from application in the case. However, the trial court denied the defendant's motion to amend his answer upon the grounds that such motion was not timely made and that the amendment would be prejudicial to the plaintiff. Having denied the motion to amend, the court held that the defendant had failed to properly plead the defense of recrimination, and accordingly, that the evidence concerning adulterous conduct of the wife could not be considered. Judgment granting an absolute divorce to the plaintiff was then entered. The defendant appeals from the judgment claiming the trial court erred in refusing to apply the doctrine of recrimination.
James Evenson, Baraboo (argued), for appellant; Hill, Quale, Hartmann, Bohl & Evenson, Baraboo, on the brief.
Vaughn S. Conway, Baraboo, for respondent.
Three issues are presented on this appeal:
1. Was the defense of recrimination abolished by the 1971 amendment of sec. 247.101, Stats.?
2. If not abolished, may recrimination be raised where it has not been specifically pleaded?
3. If recrimination must be pleaded, did the trial court abuse its discretion by denying the defendant's motion to amend his answer to plead adulterous conduct on the part of the plaintiff?
This court has recognized the doctrine of recrimination in divorce cases. Under this doctrine, if the conduct of both parties has been such as to furnish grounds for divorce, neither of the parties is entitled to relief. Gauer v. Gauer, 34 Wis.2d 451, 457, 149 N.W.2d 533 (1967); Bahr v. Bahr, 272 Wis. 323, 325, 75 N.W.2d 301 (1956).
In the instant case, the defendant sought to apply the doctrine of recrimination as a bar to the wife's action for divorce by proving the wife had engaged in adulterous conduct. The husband made no counterclaim for divorce, requesting only a dismissal of the complaint. The wife contends that the doctrine of recrimination has been abolished in Wisconsin by the amendment of sec. 247.101, Stats., in Laws of 1971, ch. 220, sec. 7.
Sec. 247.101, Stats., was originally enacted in response to this court's decision in Bahr v. Bahr, supra. In that case both husband and wife claimed for divorce upon the grounds of cruel and inhuman treatment. The trial court found both parties were guilty of such conduct, but granted the divorce to the plaintiff wife. This court reversed on the ground that the doctrine of recrimination barred a divorce to either party.
Shortly after the Bahr case, the legislature created sec. 247.101, Laws of 1959, ch. 595, sec. 60. That section, as originally enacted, provided:
By the enactment of this section, the legislature, while for the first time statutorily recognizing the doctrine of recrimination, destroyed the absolute nature of recrimination as a complete defense to be applied without discretion. Thus, in a case such as Bahr v. Bahr, supra, where the conduct of both parties was sufficient to constitute grounds for divorce, the trial court, although it could, was no longer required to deny relief upon the recrimination doctrine; it could in its discretion apply the doctrine of comparative rectitude and grant a legal separation.
By ch. 225, Laws of 1969, the legislature amended sec. 247.101 to apply not only to divorce actions, but also to actions for legal separation. In addition, the phrase "in its discretion" was deleted.
Finally, as stated above, sec. 247.101 was amended by Laws of 1971, ch. 220, sec. 7. Sec. 247.101 presently provides:
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