McMurtrie v. McMurtrie, 187

• Decision Date: 02 November 1971
• Docket Number: No. 187,187
• Citation: 52 Wis.2d 577,191 N.W.2d 43
• Parties: LaVerne McMURTRIE, Appellant, v. Donald H. McMURTRIE, Respondent.
• Court: Wisconsin Supreme Court

Page 43

191 N.W.2d 43

52 Wis.2d 577

LaVerne McMURTRIE, Appellant, v. Donald H. McMURTRIE, Respondent.

No. 187.

Supreme Court of Wisconsin.

Nov. 2, 1971.

Action for divorce commenced by the appellant-wife, LaVerne McMurtrie, against respondent-husband, Donald McMurtrie, based upon cruel and inhuman treatment. The respondent counterclaimed for a divorce on the same grounds; and the divorce was awarded to him.

This was the second marriage for both of the parties. At the time of trial appellant was forty-six years of age and respondent forty-four. Each had children from the former marriage. The appellant's children are Bobby, aged twenty-five, and Diane, aged seventeen. Both are retarded. Respondent had three children: John, aged seventeen; Linda, twenty; and Julie, thirteen. Although the parties had known each other since childhood, they did not meet socially until November, 1967, after the deaths of their respective spouses. This action for divorce was commenced by the appellant on September 12, 1969, after approximately one and one-half years of marriage.

The court found that Donald's net worth at the time of trial was $700,000 and that his net annual income could vary from a low of $30,000 to a high of $100,000, depending upon the depreciation taken on his property and other factors affecting that income.

No alimony was awarded to the appellant. The property settlement granted the wife the jewelry given to her by the respondent, a 1968 automobile, $13,500 to compensate for social security benefits lost because of the marriage, $5,000 as compensation for any inconvenience suffered by appellant during the marriage, and $1,500 as a contribution to attorney fees.

The appellant has appealed from the trial court's judgment granting the respondent a divorce on his counterclaim on the grounds of cruel and inhuman treatment.

Additional facts will be stated in the opinion.

Tinkham, Smith, Bliss & Patterson, Wausau, for appellant.

Kelley, Weber & Bolte, Wausau, for respondent.

HANLEY, Justice.

Three issues are presented on this appeal:

(1) Was the evidence sufficient to support a finding of cruel and inhuman treatment on the part of either party;

(2) Did the trial court abuse its discretion in determining the property division; and

(3) Are the parties entitled to a new trial in the interests of justice?

Cruel and Inhuman Treatment.

It frequently has been stated that in cases involving family law it is particularly helpful for the trial court to make specific findings of fact to aid this court on appeal. Walber v. Walber (1968), 40 Wis.2d 313, 319, 161 N.W.2d 898.

'* * * Specific findings as to facts established by the defendant at the trial are required. Particularly when divorce or legal separation is sought on the ground of cruel and inhuman treatment, and '* * * the court must consider the totality of conduct and the detrimental effect it has upon necessary marital relationships * * *', such consideration must be accompanied by comment and findings both as to facts which constitute cruel and inhuman treatment and as to the effect upon the health of the complaining spouse. * * *' Cary v. Cary (1970), 47 Wis.2d 689, 692, 177 N.W.2d 924, 926. (Emphasis supplied.)

Such comment and specific findings are absent in this case. Where there is a failure to make a finding of fact, this court can affirm or reverse, depending upon whether the judgment is clearly supported by the preponderance of the evidence, or remand for further findings and conclusions. Walber v. Walber, supra, 40 Wis.2d at page 319, 161 N.W.2d 898. Although this court generally prefers to remand to enable the trial court to clarify its findings, that course would not be feasible in this case in light of the comments made by the trial court.

The findings of the trial court include the following:

'(10) That no grievous misconduct has been competently established by either party to this action.'

This finding is expanded by the comments made by the judge in his decision. He stated:

'* * * If this were a first marriage for both, with children, the Court could well be justified in denying both a divorce on the testimony presented.

'The situation here though, a second marriage for both, of short duration, without children, without grievous misconduct, is in essence more compatible with an action for annulment than for an action for divorce. * * *

'Yet, the parties are here. There is ample showing that reconciliation is impossible. Forcing them to abide by a contract entered into with mutual understanding would accomplish nothing but additional hurts for both.'

A review of the record in this case clearly shows that the conduct of neither party is sufficiently grievous to constitute cruel and inhuman treatment. At best, the parties have proven to be incompatible. Incompatibility is not a ground for divorce in this state. Heffernan v. Heffernan (1965), 27 Wis.2d 307, 310, 134 N.W.2d 439.

Although a single act may be sufficient to constitute cruel and inhuman treatment--Merten v. National Manufacturers Bank (1965), 26 Wis.2d 181, 131 N.W.2d 868--the totality of conduct generally must be examined to determine whether there are grounds for divorce. Heffernan v. Heffernan, supra, 27 Wis.2d at page 312, 134 N.W.2d 439. To be denominated as cruel and inhuman, the conduct in question must (1) be unreasonable and unwarranted; (2) render the parties incapable of performing their marital duties; and (3) have a detrimental effect on the mental or physical health of the offended spouse. Williams v. Williams (1971), 51 Wis.2d 453, 456, 187 N.W.2d 208.

The record in this case does not reveal any conduct of appellant toward respondent which could be termed unreasonable or unwarranted. Viewing the evidence most favorably to the respondent, it appears that appellant complained about his children and the difficulty of taking care of the household without outside help. She refused to accompany him on business trips, especially when he wanted to pilot his own airplane. She appeared more interested in the welfare of her retarded son than of the other family members. Without more, these acts do not constitute cruel and inhuman treatment. In addition, there is no evidence that the physical or mental health of the respondent was impaired because of the conduct...