Kriesel v. Kriesel
| Decision Date | 09 May 1967 |
| Citation | 150 N.W.2d 416,35 Wis.2d 134 |
| Parties | Irvin E. KRIESEL, Appellant, v. Elvina KRIESEL, Respondent. |
| Court | Wisconsin Supreme Court |
Lund & Sherman, Black River Falls, for appellant.
Hale, Skemp, Hanson, Schnurrer & Skemp, La Crosse, for respondent.
Appellant relies upon the rule of Hansen v. Hansen (1951), 259 Wis. 485, 49 N.W.2d 434, in contending that the alimony order is void. In Hansen there was an appeal from a judgment awarding $1 a year alimony. No reason for granting of permanent alimony of $1 per year was given by the trial court. Accordingly, this court concluded that the award was arbitrary and the judgment was modified to strike that provision from the judgment. Nowhere in that opinion was it implied that the award was void as being beyond the trial court's jurisdiction. Rather, it is clear that it acted within its jurisdiction but, in view of the failure to spell out any rationale behind the award, it acted arbitrarily and the reversal was for that and not for want of jurisdiction.
We have stated in Kronforst & Kronforst (1963), 21 Wis.2d 54, 65, 123 N.W.2d 528, 535, that '* * * a trial court should not reserve such jurisdiction to award alimony without stating its reasons for so doing.' However, in Burg v. Burg (1957), 1 Wis.2d 419, 85 N.W.2d 356, this court on appeal from the judgment sustained an award to $1 per year alimony despite the fact that the trial court failed to state its reasons therefor. In Burg this court considered the facts of the case before determining whether it would sustain the award of $1 per year alimony. It did not reach the conclusion that the award of $1 per year alimony was no alimony award at all, thus barring a future determination of alimony in accordance with sec. 247.32, Stats. 1 Under the facts of the case, it permitted the $1 award to stand, although the trial court gave no reason for such an award.
It cannot be said that the court in this case was without jurisdiction to make the award of $1 per year though it may well have erred in doing so. Sec. 247.26, Stats., specifically provides that a trial court 'may * * * adjudge * * * alimony * * * for her support and maintenance.' The alimony award, though vulnerable under the Hansen rule, supra, as being arbitrary, is not void.
That award, however subject to attack it might have been, was not appealed. The award was not questioned until five years later when appellant refused to make the alimony payments.
We have said that:
'As no appeal was taken from the circuit court judgment to that effect, all provisions therein and in the findings and conclusions upon which it is based are res adjudicata, and therefore conclusive and binding between appellant and all parties to the litigation.' Estate of Weil (1946), 249 Wis. 385, 391, 24 N.W.2d 662, 665.
To avoid the bar of res judicata, and no longer being able to take a direct appeal, the appellant has collaterally attacked the original judgment by asserting as a defense to the present contempt charge that the original judgment reserving the right to make alimony payments was invalid.
In Zrimsek v. American Automobile Ins. Co. (1959), 8 Wis.2d 1, 3, 98 N.W.2d 383, 384, we defined a collateral attack as:
'* * * an attempt to avoid, evade, or deny the force and effect of a judgment in an indirect manner and not in a direct...
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Waukesha Cnty. v. E.J.W. (In re Mental Commitment of E.J.W.)
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