Kilmer v. Kilmer
| Decision Date | 22 June 1946 |
| Citation | 23 N.W.2d 510,249 Wis. 41 |
| Parties | KILMER v. KILMER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the County Court for Sauk County; Henry J. Bohn, Judge.
Reversed.
Divorce. The plaintiff and defendant, both residents of Wisconsin, were married on August 13, 1920. On March 6, 1944, the plaintiff commenced an action for absolute divorce and for a just division of the property of the parties.
The defendant did not answer the complaint but did sign a stipulation of settlement of property rights of the parties. The settlement was prepared by her attorney, mailed to the defendant for signature and signed by him. It awarded the plaintiff the household furniture and equipment of the parties, which she valued at $1,000 and he valued at $1,500, each of them having paid a part of the costs thereof; United States savings bonds, matured value of $750, purchased from the defendant's earnings; a savings account of $500 accumulated from the defendant's earnings, and a Plymouth automobile upon which each of them had paid $100 and upon which the defendant agreed to pay $356.12 in monthly installments. The defendant also agreed to and did pay $106 to plaintiff's attorneys. Under the agreement the defendant retained a Dodge automobile valued at $1,000 and $300 in cash. The defendant subsequently made all payments required by the judgment and the wife's Plymouth car is now fully paid for.
On April 28, 1944, the matter was brought on for trial. The plaintiff submitted her proofs, the defendant was not present. Findings of fact and conclusions of law were entered, finding that the allegations of the complaint were true and approving the stipulation of settlement pursuant thereto.
On April 28, 1944, judgment of absolute divorce was entered in plaintiff's favor. On August 31, 1944, plaintiff filed a petition with the court alleging that the defendant had married one Evora Jones in June, 1944, and asked that the judgment be vacated. The defendant then appeared by an attorney. The plaintiff offered no evidence other than her petition. The defendant testified that he and Evora Jones were married in Michigan on June 5, 1944, and returned to Wisconsin to live, believing that his marrige to Evora Jones was valid. Although the plaintiff offered no evidence, her counsel stated at the close of the hearing that if the judgment was set aside, she would then apply to the court for permission to file an amended complaint. On January 20, 1945, the court filed a decision upon plaintiff's motion to vacate the judgment, in the course of which the court said:
‘Upon this hearing, the court was of the opinion at first thought that the plaintiff, having asked for and been granted a Judgment as prayed for, could not be heard to ask to have that Judgment set aside.
On March 28, 1945, plaintiff moved the court to dismiss the action without prejudice, which motion was heard. On May 11, 1945, the defendant filed an affidavit in opposition, to which was attached a certified copy of the testimony given on the original trial and of the testimony given by the defendant on the hearing, September 11, 1944. The plaintiff also filed an affidavit in support of her motion to dismiss, to which the defendant replied. On June 2, 1945, the court entered an order without opinion denying the motion to dismiss. The defendant then filed an answer asking that the original judgment be reinstated nunc pro tunc and that if such motion be denied, that he have such relief as he was entitled to at the conclusion of another trial.
On July 23, 1945, the action was again tried. At the opening of the trial on July 23, 1945, the plaintiff again moved to dismiss the action without prejudice, which was denied. At the conclusion of the final trial, the defendant moved for reinstatement of the original judgment and in the alternative, with reservation to have a new absolute divorce judgment entered and if that was denied, for restitution of his property if the action was to be dismissed.
On December 7, 1945, the court filed a decision, denying defendant's motion and directed the dismissal of the action without prejudice and without restoring to defendant the property which plaintiff acquired from him under the original judgment. From the judgment of dismissal subsequently entered, the defendant appeals.
Walker and Latton, of Portage, for appellant.
Hill, Miller & Hill, of Baraboo, for respondent.
On this appeal we shall not pass upon the contention of the defendant that his marriage in Michigan to Evora Jones was valid.
It is argued that the trial court was in error in vacating the judgment entered on April 28, 1944. The motion to vacate the judgment was not made in this case under sec. 269.46(1), which provides: ‘The court may, upon notice and just terms, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him obtained, through his mistake, inadvertence, surprise or excusable neglect and may supply an omission in any proceeding.’ But under the provisions of sec. 247.37(2): ‘So far as said judgment or decree affects the status of the parties the court shall have power to vacate or modify the same for sufficient cause shown, upon its own motion, or upon the application of either party to the action, at any time within one year from the granting of such judgment or decree, provided both parties are then living.'
It is the contention of the defendant that under this statute, the plaintiffdid not support her motion to vacate the judgment by facts showing sufficient cause. As a practical matter if the contentions of the defendant were upheld an interlocutory judgment of divorce could not be set aside except upon showing sufficient cause to set aside a judgment under sec. 269.46(1). Section 247.37(2) should be liberally interpreted. The court had this section under consideration in Jermain v. Jermain, 1943, 243 Wis. 508, 11 N.W.2d 163. In that case the trial judge denied the motion made by the defendant to vacate a judgment in favor of the plaintiff upon the ground that the matter had been adjudicated on a former motion, that the order denying the motion remained unreversed and therefore was res adjudicata upon all matters presented by the defendant in connection with his present motion. After quoting the statute, the Court quoted from Subacz v. Subacz, 1924, 183 Wis. 427, 434, 198 N.W. 372, 374: ‘Notwithstanding the statutes above referred to, and all of the precautionary measures contained therein, a default judgment of divorce does not stand upon the same plane as a judgment in an ordinary civil action, and the rule still obtains, in a somewhat modified degree, that a default judgment of divorce will be vacated upon slight showing.'
As entered the order vacating the judgment of divorce was based upon the opinion...
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Puterman v. Puterman
... ... default judgment of divorce will be vacated upon slight ... showing. * * *'" See also Kilmer vs. Kilmer ... 249 Wis. 41, 23 N.W.2d 510 ... In ... Smith vs. Smith, 64 Cal.App.2d 415, 148 P.2d 868 where ... the trial court ... ...
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Hooker v. Hooker
...Neither did they present any fact occurring after judgment which would be a ground for vacating the judgment such as in Kilmer v. Kilmer, 1946, 249 Wis. 41, 23 N.W.2d 510. The defendant's moving papers asserted that the property division was inequitable, but the court's power to review a pr......
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Starzinski v. Starzinski
...call to our attention, White v. White, 167 Wis. 615, 168 N.W. 704, Jermain v. Jermain, 243 Wis. 508, 11 N.W.2d 163, and Kilmer v. Kilmer, 249 Wis. 41, 23 N.W.2d 510, and assert that these cases require that a new trial be had. In the White and Kilmer Cases the husband went through the form ......
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Monckton v. Linkbelt Corp.
...return the property to the defendant, even though the plaintiff is free to prosecute the same cause of action. See Kilmer v. Kilmer, 249 Wis. 41, 23 N.W.2d 510, 512-13 (1946). Rule 60(b), which provides that a district court, for enumerated reasons, may relieve a party from a final judgment......