Hooper v. Hooper

• Decision Date: 04 April 1899
• Citation: 102 Wis. 598,78 N.W. 753
• Parties: HOOPER v. HOOPER.
• Court: Wisconsin Supreme Court

102 Wis. 598

78 N.W. 753

HOOPER

v.HOOPER.

Supreme Court of Wisconsin.

April 4, 1899.

Appeal from circuit court, Waupaca county; Charles M. Webb, Judge.

Action by Julia A. Hooper against Moses Hooper for divorce. There was a decree for plaintiff, and from that part thereof awarding plaintiff permanent alimony defendant appeals. Affirmed.

Plaintiff was 60 and defendant 61 years of age at the time of the trial. They had lived together as man and wife about 20 years, during which time plaintiff helped to rear to ages of maturity five children of defendant by his first wife, who were from 4 to 17 years of age at the time of the second marriage. When such second marriage took place defendant was worth about $40,000 and plaintiff not anything. During a few years preceding the trial defendant gave his children property aggregating $20,000 in value, and was worth, when the case was decided, $80,000, yielding a yearly income of about $4,200, and he had in addition a large law practice. In addition to wearing apparel and personal property, when the cause was decided plaintiff was possessed of $500 given to her by defendant, $950 bequeathed to her by an aunt, and about $700 accumulated by keeping boarders subsequent to February, 1895, when the separation between the parties took place. In addition she had a claim against defendant for $500 on account of a marriage gift. The divorce was granted upon two grounds, either being adequate, and one free from any circumstance of excuse or palliation, in the conduct of plaintiff. There was awarded to plaintiff out of defendant's property, as her separate estate, $7,000, and $100 per month during her life, in lieu of dower rights in defendant's real property, and in full discharge of all plaintiff's rights therein, and all claims upon defendant's estate. Judgment was rendered accordingly.

Moses Hooper and C. D. Cleveland, for appellant.

Quarles, Spence & Quarles, for respondent.

MARSHALL, J. (after stating the facts).

Appellant's complaint seems to be wholly of the award of a gross sum of money as part of the permanent alimony. The monthly allowance of $100, it is suggested, may be materially increased, if thought best, without complaint from appellant, if the decree giving plaintiff an estate of her own out of appellant's property, be reversed. We have, with care, searched appellant's brief in vain for some good reason or the citation of some authority to support his claim. It is quite novel. It is, as we understand it, that in such a case no provision should be made for a divorced wife other than an allowance payable at stated periods, by the former husband, sufficient for her support. That was the old doctrine of the ecclesiastical courts when alimony meant an allowance for the support of a wife while living apart from her husband under a sentence of judicial separation, the relations of husband and wife in some respects still existing between the parties, the sentence being subject to termination and full marriage relations substantially subject to resumption at the will of the parties. Then no duty was recognized to support a fully divorced wife. No reason whatever exists now for such a rule. Under our statutes alimony may go with a divorce dissolving the bonds of matrimony and restoring the parties to their original situation of being strangers to each other, so far as concerns marriage relations in any sense, as well as with a divorce from bed and board. The power of the court, where the circumstances, in the discretion of the trial court, seem to demand or justify it, is as ample to allow a sum of money payable in gross as alimony, as one payable in installments or a monthly allowance. There can be no doubt about that. In Williams v. Williams, 36 Wis. 362, it is said that it is quite as competent for the court to assign to the wife absolutely a specific portion of the husband's estate or to order the payment of a gross sum of money as to award an annual allowance. Section 2364, Rev. St., provides that “the court may adjudge to the wife such alimony out of the estate of the husband for her support and maintenance * * * as it shall deem just and reasonable, * * * having always due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties and all the circumstances of the case.” Thus the manner in which the wife's allowance shall be secured to her is left entirely to the court to be exercised as justice seems to require, having regard to the particular facts of each case. So the question of whether the right judgment for alimony was rendered here comes down to whether proper judicial discretion was exercised in administering the statute; and on that subject the rule is that the decision of the trial court will not be disturbed unless manifestly unjust.

It is not only permissible to make...