Jackowick v. Jackowick
| Decision Date | 04 June 1968 |
| Citation | 39 Wis.2d 249,159 N.W.2d 54 |
| Parties | Harold T. JACKOWICK, Respondent, v. Grace C. JACKOWICK, Appellant. |
| Court | Wisconsin Supreme Court |
Additional facts will be set forth in the opinion.
Robert J. Beaudry, A. Tallman Neff, Milwaukee, for appellant.
Thomas S. Sommers, Milwaukee, for respondent.
In oral argument the appellant-wife's main thrust was her claim of the insufficiency of the alimony and support money awards. No complaint is made as to the division of estate. She also contends that the proof was insufficient to grant a legal separation upon grounds of cruel and inhuman treatment; that any of her acts that could be considered cruel and inhuman treatment were provoked by the husband; and that the husband practiced acts of cruel and inhuman treatment against her so as to invoke the doctrine of recrimination.
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 p. 442):
Most of the testimony concerning the cruel and inhuman treatment of Mrs. Jackowick comes from the plaintiff himself. The portrait of their marriage as described by him is one of tense discord and disharmony. He testified that he and Mrs. Jackowick constantly quarreled and bickered over trivial matters. Often the arguing would concern the allegedly poor housekeeping of the defendant. He testified that the defendant often accused him of infidelity without cause, and at least once did so in a vulgar manner in the presence of their children. He testified that their sexual relationship was 'not right' and that she had told him she did not love him and that she felt like 'throwing up' when he attempted to kiss her. At one time she even persuaded their daughter to tell him that 'if he did not like it, he should get out.' She would belittle him in front of others; call him 'cheap' and claim that he would not maintain her in the proper manner. In an attempt to humiliate him on one occasion she wore ragged shoes to a picnic and told others there that he would not buy her anything else. She called him a 'freak' because he worked such long hours and told him that she would like to see him 'crawling in the gutter,' and that she would 'break him' if it was the last thing she did. On occasions she threatened to take her own life and the lives of the children. She told him on at least one accasion that he would come home and find her hanging in the bathroom. She also threatened to kill him.
One of the items the trial court felt significant was that defendant continuously harassed the plaintiff with telephone calls while he was at work. For several years, the plaintiff testified, the defendant would call from as many as one to 10 times a day, every day. The matters she would want to discuss would be trivial matters and the calls would come when he had people in his office. If he hung up she would call back. Many times he had to leave the phone off the hook even though it was a business phone. This harassment continued right up to the time of the trial.
Mrs. Jackowick's version of the couple's marriage was somewhat different. She stated she did not want a divorce or a separation, and that she wants her husband to come home. She did not continuously quarrel and 'nag' without provocation or cause. She never accused him of being unfaithful and never told him that she did not love him, but always told him that she has always loved him. She admits that she bothered him with phone calls while he was at work, but only because he refused to communicate with her when he was home. She only made the calls in reference to things that had to be done at home and that it was only about twice a week that she made such calls. She admits she swore at him and attempted to humiliate him but that it was only when she lost her temper. Furthermore, he did the same to her. She testified that she attempted suicide on one occasion by swallowing 10 aspirin tablets but that she never threatened to kill him or the children, and did not say that she was going to hang herself in the bathroom. She did complain somewhat of his working such long hours. She was not suspicious and distrustful of him. It was her husband who 'nagged' her about the housework.
The only other testimony concerning the conduct of the parties was from two witnesses who testified on the plaintiff's behalf. The first, Mrs. Patricia Affolter, who had been a neighbor and tenant of the Jackowicks, testified that she heard Mrs. Jackowick swear at Mr. Jackowick and she was aware that Mr. Jackowick complained about the ironing not being done. She further testified that she heard Mrs. Jackowick yell and scream at the children and at Mr. Jackowick. Once Mrs. Jackowick told her she was pregnant, that Mr. Jackowick was not the father of the child, and that she was able to 'pick up men' in taverns. These statements were not offered for the truth of the statement but as examples of Mrs. Jackowick's attempts to humiliate Mr. Jackowick.
The other witness presented, Mr. Frank Grosser, also testified to an incident where Mrs. Jackowick began screaming at Mr. Jackowick and humiliated him by complaining about her ragged clothes.
It is apparent that testimony of the husband and wife is in conflict.
"The weight of the evidence and the credibility thereof were matters entirely within the province of the court as the trier of the facts.' Gordon v. Gordon, supra (270 Wis. 332, p. 340, 71 N.W.2d 386, p. 390).' Mecha v. Mecha, supra, p. 35, 152 N.W.2d p. 927.
Heffernan v. Heffernan, supra, p. 314, 134 N.W.2d p. 443.
The trial court chose to place more weight on the testimony offered by the husband. It is our firm conclusion that the finding of the trial court that Mrs. Jackowick was guilty of cruel and inhuman treatment toward her husband is not against the great weight and clear preponderance of the evidence.
Appellant contends that her constant telephoning to her husband at work was provoked by the husband because he would not speak with her at home. The telephone calls were simply one item of proof the trial court felt significant. The trial court, in its opinion from the bench, mentions the testimony regarding the husband's alleged refusal to talk with the defendant and characterizes the evidence as 'hard to evaluate.' The trial court noted that it is almost impossible to trace back to the beginning the reasons for the telephone calls or the breakdown in communication between the couple. The court's finding, however, that the defendant was guilty of cruel and inhuman...
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