Lally v. Lally

• Decision Date: 25 November 1912
• Citation: 138 N.W. 651,152 Wis. 56
• Parties: LALLY v. LALLY.
• Court: Wisconsin Supreme Court

152 Wis. 56

138 N.W. 651

LALLY

v.LALLY.

Supreme Court of Wisconsin.

Nov. 19, 1912.

Dissenting Opinion Nov. 25, 1912.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action for divorce by Maria B. Lally against Frederick E. Lally. From an order dismissing a petition for modification of the final judgment, plaintiff appeals. Reversed and remanded.

Kerwin, Siebecker, and Timlin, JJ., dissenting.

In 1906 plaintiff and defendant were divorced by a decree entered by the circuit court for Milwaukee county. The judge who tried the action found as facts “that the defendant receives an income of at least $10,000 per annum, and that the plaintiff is without means of her own; that the sum of $300 per month, to be paid to the plaintiff by the defendant during her lifetime, or so long as she shall remain single, is a reasonable sum to be paid to her by defendant as a full, absolute, and final division of the estate of the parties hereto, provided, however, that on the remarriage of said plaintiff such payments by said defendant at once cease. In making this finding as to the division of the estate of said parties, I have taken into consideration, with other things, the fact that the parties hereto, by their attorneys, have stipulated and agreed in open court that the above sum be paid and accepted as an absolute, full, and final division of the estate of the above-named parties. I further find that such division and distribution of defendant's property and estate as above found, and as stipulated and agreed to between the parties above named, is a just and equitable division and distribution of the estate of said parties.” The judgment, among other things, decreed “that the defendant, his heirs, executors, and administrators, pay, or cause to be paid, to the plaintiff during her natural life, or until she shall remarry, the sum of $3,600 per year, payable in equal monthly installments of $300 on the 1st day of each and every month during such term, said payments to be made and accepted as a full, absolute, and final division of the estate of said parties, in accordance with the findings of fact and conclusions of law herein on file, provided, however, that on the remarriage of said plaintiff said payments herein provided for shall at once cease; * * * that upon the neglect or the refusal of the defendant to make such payments as are hereby adjudged, the plaintiff, upon filing an affidavit showing such failure or refusal, may apply to the court for an order for the enforcement of the same in such manner as to the court may seem proper.”

On the 15th day of September, 1911, the plaintiff filed in said court her petition for a revision and alteration of said judgment respecting the amount of alimony therein provided, as she claims, and for other relief, which it is not necessary to enumerate. The court entered an order dismissing the petition for want of jurisdiction, on the ground that the judgment of divorce provided in terms for a final division of the estate, and should be so construed, and therefore could not be revised after the term at which it was entered. From such order the plaintiff appealed.Quarles, Spence & Quarles, of Milwaukee (Wm. A. Vincent, of Chicago, Ill., of counsel), for appellant.

Flanders, Bottum, Fawsett & Bottum and F. L. McNamara, all of Milwaukee, for respondent.

VINJE, J. (after stating the facts as above).

[1] The plaintiff claims the judgment entered was for alimony; the defendant that it was a final division of his estate. If it was a judgment for alimony, then it may be modified at any time upon the application of either party. Section 2369, Stats. 1898; Campbell v. Campbell, 37 Wis. 206;Thomas v. Thomas, 41 Wis. 229. If it was a judgment decreeing a final division of defendant's estate, then the court has no power to modify it after the term. Section 2369, Stats.; Bacon v. Bacon, 43 Wis. 197, 206;Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028. It cannot be both. Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 798;Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028.

Section 2364, Stats. 1898, provides that in lieu of alimony the court may “finally divide and distribute the estate, both real and personal, of the husband * * * between the parties and divest and transfer the title of any thereof accordingly.” Was such a division, distribution, and transfer made by the judgment in the present case? True the trial court said so in the judgment when it was rendered, and it said so when the order dismissing the petition was entered. In cases of doubt great weight should be accorded the recitals in the judgment, but they cannot be permitted to override the plain commands of the statute; nor can they change the inherent qualities of the judgment rendered. If the judgment in fact makes no final division of the husband's estate, it is not a judgment of final division, though so named therein. The label may be useful in ascertaining what kind of judgment is rendered; but it is not conclusive. If the judgment rendered bears all the characteristics of a judgment for alimony, and contains none of the essential requisites of a judgment of final division, then it is of little importance what name it gives itself. The judgment rendered provides (1) for the payment, monthly, by the husband, his heirs, executors, and administrators, of $300 to the wife; (2) that such payments are to cease upon the death or remarriage of the wife; and (3) that upon a refusal or neglect of the husband to make the adjudged payments the plaintiff may apply to the court for an order for the enforcement of the same. These are all the provisions the judgment makes in respect to the husband's estate. Tested by the statutes and decisions, they are all essential characteristics of a judgment of alimony, to wit, monthly payments, ceasing upon death or remarriage, and enforceable by further application to the court.

[2] It is true the provision for payment by his heirs, executors, and administrators does not harmonize with the idea of alimony; for that ceases upon the death of the husband. Campbell v. Campbell, 37 Wis. 206;Maxwell v. Sawyer, 90 Wis. 352, 63 N. W. 283. But in view of the failure of the judgment to meet the requirements of the statute relating to a final division of the husband's estate, that cannot be considered very significant. It was probably the result of inadvertence, perhaps of habit; for the words “his heirs, executors, and administrators” are customarily linked with the name of an obligor. In any event, it is a nullity; for alimony is not a charge upon the husband's general estate. Campbell v. Campbell, 37 Wis. 206. It may be made a charge upon specific real estate owned by him. Section 2367, Stats. 1898. The judgment fails to comply with the statute, because (1) it does not divide the estate between the parties; (2) it does not distribute it between them; and (3) it does not divest and transfer the title of any thereof to the wife. She is given no estate that she can own, control, mortgage, sell, or bequeath. For, confessedly, monthly payments ceasing upon either of two such uncertain contingencies as marriage and death are not very valuable assets to offer in the financial market, and are not subjects of a bequest in a will, as they cease upon the death of the testator. It was held in Kempster v. Evans, 81 Wis. 247, 51 N. W. 327, 15 L. R. A. 391, that an installment of alimony to be paid the wife was not assignable before due. The same rule might, perhaps, be applicable to the payments provided for in this judgment, even if it were held to be a division of property, on the ground that each payment is no more than necessary for the support of the wife and child until the next one falls due. The statute contemplates that when a wife is given a portion of her husband's estate as a final division of his property that such portion should by the judgment be transferred and set over to her, to be and become her separate estate, subject to her control and dominion, and capable of being disposed of by her by will or otherwise.

[3] It is true the wife's portion may be required by the court to be paid to her in any reasonable number of payments running through a series of years, because of the hardship upon the husband to pay it in one or several payments within a short time. But the number of payments, their time of commencement and termination, must be fixed by the judgment. They cannot rest upon any contingency, nor be made defeasible by remarriage. Such provisions for a number of payments, however, do not prevent the wife from ascertaining, when the judgment is rendered, just how much of the estate she gets, or when she is to receive it. Nor do they prevent her from mortgaging, selling, or bequeathing her portion. Such judgment is a division, within the statute, and, like an ordinary money judgment, becomes a lien upon the husband's estate, and may be enforced like any money judgment--not by an application to the court for a further order, in his discretion, as is provided for in the judgment in question.

Assuming, but not deciding, that the court could, as a final division of property, require the wife to take an annuity, still the payments provided for in the judgment cannot be regarded as an annuity, within the meaning of the statute relating to a final division of the husband's estate. It ceases upon remarriage. No final division of property under the statute can be made, so that the wife's share reverts to the husband upon her remarriage. Whatever is given her as her share of the property remains hers forever. She cannot be made to forfeit it by remarriage--not even if she remarries her former husband. Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028. The statute requires a final division, distribution, or transfer of title. Nothing less will satisfy it. Kempster v. Evans, 81 Wis. 247, 51 N. W. 327, 15 L. R. A. 391.

[4] The findings show that the husband had an income of at...