Kistler v. Kistler

• Citation: 141 Wis. 491,124 N.W. 1028
• Parties: KISTLER v. KISTLER.
• Decision Date: 19 February 1910
• Court: United States State Supreme Court of Wisconsin

141 Wis. 491

124 N.W. 1028

KISTLER

v.KISTLER.

Supreme Court of Wisconsin.

Feb. 1, 1910.

Dissenting Opinion Feb. 19, 1910.

Appeal from Circuit Court, Grant County; George Clementson, Judge.

Action by Josephine Kistler against Charles Kistler. From a judgment refusing to satisfy a judgment against defendant, he appeals. Affirmed.

The defendant petitioned for an order satisfying a judgment obtained against him by the plaintiff, and appeals from an order denying his petition.

The facts were that the parties were husband and wife, and that on August 30, 1898, the plaintiff obtained judgment of divorce against the defendant, wherein it was adjudged that the defendant pay to the plaintiff $1,000 “as and for her permanent alimony and division of property”; that the parties remarried September 28, 1898, and lived together for some months; that the plaintiff commenced another divorce action early in the year 1901; and that the parties entered into a stipulation at or just prior to the commencement of this second action reciting their agreement to separate, and proceeding as follows: “And said Josephine M. Kistler, having agreed and by these presents agreeing to prosecute the suit for divorce which has been commenced, and agrees to accept the sum of three hundred dollars as alimony, and further agrees to not ask for or demand any further sum or sums whatever. $150 to be paid down at the ensealing of these presents and the other $150 on or before February 22nd, 1901.” This $300 was paid and another judgment of divorce was taken by default June 11, 1901, without any provision as to alimony. The original judgment of $1,000 in the first action was never in fact paid, but the defendant's contention is that the $300 paid pursuant to the stipulation in the second action was in fact paid in settlement, not only of all claim for alimony in that action, but in settlement of the judgment for division of property in the first action.

Marshall, J., dissenting.

Kopp & Brunckhorst, for appellant.

R. A. Watkins, for respondent.

WINSLOW, C. J. (after stating the facts as above).

There are two questions in the case: First. What was the effect of the remarriage on the judgment for division of property in the first divorce action? Second. Was that judgment paid and satisfied by the stipulation made in the second action and the payment of the $300 thereunder?

1. The judgment for $1,000 in the first action is confused and inaccurate because it describes that sum as and for “permanent alimony and division of property,” whereas it cannot be both. It must, however, be construed as a division of property. Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 798. So construing it, the result necessarily follows that it was a final adjudication, not open to revision after the term at which it was rendered, and became the separate estate of the plaintiff. Being her separate estate, it continued to be such after her remarriage to the defendant, and was manifestly unaffected thereby. St. 1898, § 2341. Had it been a judgment for alimony proper--i. e., support payable periodically--remarriage of the wife, even to a third person, would probably justify the court in reducing or taking away the provision entirely. 2 Bishop on Mar. Div. & Separation, § 1058; 14 Cyc. 787, and cases cited in note 24. But, as we have seen, a judgment for division of the property is final, conclusive, and not open to change after the term at which it is rendered.

2. The judgment not being affected by the remarriage, was it satisfied by the stipulation? This question must on principle be answered in the negative. This court has said in accordance with the prevailing rule of law that: “Agreements promotive of marriage are valid, and those in aid of separation and divorce are void.” Baum v. Baum, 109 Wis. 47, 85 N. W. 122, 53 L. R. A. 650, 83 Am. St. Rep. 854;Oppenheimer v. Collins, 115 Wis. 283, 91 N. W. 690, 60 L. R. A. 406. The stipulation in question was an agreement in aid of divorce. The expressed consideration for the agreement to pay the $300 was the agreement by plaintiff to prosecute an action for divorce. While there is no direct agreement on defendant's part to abstain from defending the divorce action, it is very evident that the object and purpose of the agreement was that plaintiff should diligently prosecute her suit for divorce and receive from defendant $300 for so doing. This must be considered an agreement having for its object the facilitating of the procurement of a divorce and hence void. 15 A. & E. Ency. of Law, p. 956. If the agreement to pay the $300 was void, the agreement by plaintiff that such sum should be accepted in satisfaction of all claims for alimony is necessarily void because they are both parts of the same transaction, and so woven together as to be inseparable

Order affirmed.

MARSHALL, J. (dissenting).

Irrespective of whether the agreement was of a character rendering it void because promotive of separation between man and wife. I cannot concur in the result.

Without expressly dissenting from the conclusion that the agreement should be classed as pernicious, it...