Mentzel v. Mentzel
| Decision Date | 26 June 1958 |
| Citation | 4 Wis.2d 584,91 N.W.2d 101 |
| Parties | Donald Dean MENTZEL, Appellant, v. Frances MENTZEL, Respondent. |
| Court | Wisconsin Supreme Court |
Lloyd D. Mitchell, Oshkosh, for appellant.
Sigman, Sigman & Shiff, Appleton, for respondent.
Both complaint and counterclaim are grounded on cruel and inhuman treatment. Plaintiff alleges misconduct on the part of defendant and improper association with other men. Defendant alleges improper association of the plaintiff with other women, use of abusive, vile and obscene language toward her, false accusations of improper conduct with other men and the use of physical violence on her person.
Plaintiff concedes that his conduct constituted grounds for divorce to defendant, but he contends that the wife's conduct likewise constituted grounds for divorce, and under the doctrine of recrimination, neither party is entitled to a divorce.
Plaintiff and defendant were married in 1945 when they were aged 18 and 19 years respectively. Five children were born of the marriage, ranging in age from 11 years to about one year at the time of trial. For approximately six years prior to June 1956 plaintiff was employed as a molder in a foundry. On August 6, 1955, he purchased a tavern in Oshkosh, which was operated by his mother from that date until June 4, 1956, when he took over its operation.
In July of 1956, about three weeks after the birth of the last child, the defendant wife started working in the tavern, tending bar. She testified her husband insisted that she do so and threatened that he would kick her out if she did not.
All the incidents of alleged misconduct on defendant's part occurred after she began helping the plaintiff in his tavern. At first she worked from 6:00 p. m. to 1:00 a. m. and later she regularly worked from about 10:30 in the morning till closing time at 1:00 a. m. Defendant testified her husband also worked in the tavern on Friday and Saturday nights and occasionally at other times; that when her husband was not there at closing time he expected her to be taken home by another bartender or some customer in the tavern. Defendant admitted being taken home by other men on various occasions, sometimes stopping on the way for something to eat or drink at other taverns or the home of friends.
It is unnecessary to detail the evidence in this respect. A number of plaintiff's witnesses testified they saw the defendant in the company of other men but all of them testified that they observed no improper conduct. Several men with whom plaintiff accused the defendant of misconduct testified they did not have 'dates' with the defendant but were merely taking her home and there was no improper conduct between them. There was one witness who testified otherwise, but the trial court discounted his testimony entirely, stating it considered his testimony incredible and false. Plaintiff apparently agrees with this view, since nowhere in his brief does he mention or rely on it.
Plaintiff places considerable reliance on the evidence with respect to an incident which occurred on February 15, 1957, just shortly before this action was commenced. Plaintiff and defendant were both in their tavern. Defendant testified that at 12:45 a. m. she left with a customer, one Tony Wolf, and went to the home of plaintiff's folks for some drinks. On their return they found the plaintiff had left the tavern and Wolf offered to take the defendant home. On the way he decided they should have something to eat and they proceeded to a place on the outskirts of town. There Wolf helped someone change a tire and shortly thereafter, on their way home the car skidded off the road. They waited in the car for about an hour and a half until a squad car arrived at 5:45 a. m. The officers testified that the clothing of Wolf and the defendant was in a disarranged condition. Wolf was arrested for driving without a license. Both he and the defendant were taken to the court house; defendant was not arrested. Defendant tried to call her husband but he was not at home. She stayed at the court house until ten o'clock in the morning, until the case against Wolf was disposed of. Then she went home by cab. She testified that a violent quarrel took place between her and the plaintiff.
When the testimony was concluded the trial court made a statement from the bench which included the following remarks
'The allegation as to the treatment, cruel and inhuman treatment, on the part of the plaintiff towards the defendant have been proven and I believe are grounds for divorce.
These oral comments are the basis of plaintiff's argument that the trial court recognized the law but did not apply it. The doctrine of recrimination is applied where the evidence shows each party has been guilty of an offense which constitutes grounds for a divorce in favor of the other. See Bahr v. Bahr, 1956, 272 Wis. 323, 75 N.W.2d 301, and authorities therein cited.
After the statement from the bench, however, the trial court considered three motions of the plaintiff, the first of which was that the divorce judgment awarded to the defendant should be vacated and set aside as being contrary to law and that judgment of divorce be awarded the plaintiff. In a written decision, the trial court stated:
'In addition to the fact that this physical abuse on the part of the plaintiff was not justifiable, the plaintiff has not established grounds for a divorce * * *.'
Plaintiff also moved that the judgment be set aside as not justified...
To continue reading
Request your trial
-
Bussewitz v. Bussewitz
...the wife is practically compelled by the circumstances. Morris v. Morris, 13 Wis.2d 92, 97, 108 N.W.2d 124 (1961); Mentzel v. Mentzel, 4 Wis.2d 584, 590, 91 N.W.2d 101 (1958); Burg v. Burg, 1 Wis.2d 419, 422, 85 N.W.2d 356 (1957). In Burg, supra, 422, 85 N.W.2d 358, this court 'We consider ......
-
Lacey v. Lacey
...v. Spheeris (1967), 37 Wis.2d 497, 510, 155 N.W.2d 130.8 Burg v. Burg (1957), 1 Wis.2d 419, 422, 85 N.W.2d 356; Mentzel v. Mentzel (1958), 4 Wis.2d 584, 590, 91 N.W.2d 101.9 Yasulis v. Yasulis, supra, 6 Wis.2d at p. 253, 94 N.W.2d 649; Knutson v. Knutson (1961), 15 Wis.2d 115, 121, 111 N.W.......
-
Heup v. Heup
...which would be a ground for divorce. See sec. 247.101, Stats. Gauer v. Gauer (1967), 34 Wis.2d 451, 149 N.W.2d 533; Mentzel v. Mentzel (1958), 4 Wis.2d 584, 91 N.W.2d 101; Bahr v. Bahr (1956), 272 Wis. 323, 75 N.W.2d 301; Roberts v. Roberts (1931), 204 Wis. 401, 236 N.W. Most of the allegat......
-
Williams v. Williams, 117
...Werlein (1965), 27 Wis.2d 237, 241, 133 N.W.2d 820. See also, Wagner v. Wagner, (1961), 14 Wis.2d 23, 109 N.W.2d 507; Mentzel v. Mentzel (1958), 4 Wis.2d 584, 91 N.W.2d 101; Hoffman v. Hoffman (1955), 270 Wis. 357, 71 N.W.2d 401.2 Horel v. Horel (1952), 260 Wis. 336, 50 N.W.2d 673; Jackowic......