Merten v. National Mfrs. Bank of Neenah

• Decision Date: 05 January 1965
• Citation: 131 N.W.2d 868,26 Wis.2d 181
• Parties: John Samuel MERTEN, Appellant, v. The NATIONAL MANUFACTURERS BANK OF NEENAH, Admr. de bonis non of the Estate of Evelyn Lucille Merten, Respondent.
• Court: Wisconsin Supreme Court

Page 868

131 N.W.2d 868

26 Wis.2d 181

John Samuel MERTEN, Appellant, v. The NATIONAL MANUFACTURERS BANK OF NEENAH, Admr. de bonis

non of the Estate of Evelyn Lucille Merten, Respondent.

Supreme Court of Wisconsin.

Jan. 5, 1965.

Rehearing Denied March 2, 1965.

Hughes Law Offices, Oshkosh, for appellant.

Patri, Nolan, Crane & Engler, Oshkosh, for respondent.

HEFFERNAN, Justice.

We conclude that the judgment of divorce is reviewable by this court though one of the parties is dead, and that sufficient, though minimal, evidence was produced to sustain the judgment. The respondent contends that sec. 247.37(2), Stats., denies the supreme Court the power to set aside a divorce for lack of evidence when one of the parties has died.

Sec. 247.37(2), Stats., provides in part:

'So far as said judgment affects the marital status of the parties the court has the power to vacate or modify the same for sufficient cause shown, upon its own motion, or upon the application of either party to the action, at any time within one year from the granting of such judgment, provided both parties are then living.' (Emphasis supplied.)

Hirchert v. Hirchert (1943), 243 Wis. 519, 11 N.W.2d 157, however, distinguishes this provision above quoted, and which is applicable to the trial court, from the provision that appears in sec. 247.37(1)(a), Stats.:

'When a judgment of divorce is granted it shall not be effective so far as it affects the marital status of the parties until the expiration of one year from the date of the granting of such judgment, except that it shall immediately bar the parties from cohabitation together and except that it may be reviewed on appeal during said period. But in case either party dies within said period, such judgment, unless vacated or reversed, shall be deemed to have entirely severed the marriage relation immediately before such death.'

As this court in Hirchert said at page 527, 11 N.W.2d at page 161:

'Notwithstanding the failure of the defendant to get the judgment of the court vacated she is not barred from appealing and seeking reversal of it upon review of the record. Sec. 247.37(1), Stats.'

This prior decision of the court is founded not only upon the plain meaning of the statute but upon reason. It is obvious that one party should not be held to the terms of an invalid judgment merely because of the fortuitous death of the other party. Assuming, ad arguendo, that, as the plaintiff claims, there is not sufficient evidence to satisfy the statutory requirements for a divorce on the grounds of cruel and inhuman treatment, it would be palpably unfair to deny his appeal from an unlawfully obtained divorce judgment.

Though we find the judgment appealable, we find no cause to reverse, though this is an admittedly close question.

Sec. 247.07(4), Stats., provides that a divorce may be granted:

'When the treatment of one spouse by the other has been cruel and inhuman, whether practiced by using personal violence or by any other means.'

The testimony upon which a finding of cruel and inhuman treatment can be based is set forth in the statement of facts. They are undeniably scanty: A bare statement that on one occasion the offended spouse was struck and rather meager and equivocally stated testimony that such treatment made the wife nervous and upset. The cruel and inhuman treatment was not corroborated, nor was there any showing that corroboration was not available.

The findings of fact of a trial court on appeal from a judgment in a divorce action must be affirmed unless clearly contrary to the great weight and clear preponderance of the evidence. Stone v. Stone (1896), 94 Wis. 28, 30, 68 N.W. 390; Gordon v. Gordon (1955), 270 Wis. 332, 340, 71 N.W.2d 386; Subrt v. Subrt (1957), 275 Wis. 628, 630, 83 N.W.2d 122. In the instant case the trial judge did find that 'the plaintiff (husband) has treated the defendant (wife) in a cruel and inhuman manner * * *.' The husband, though present with counsel, did not testify. On the basis of the record, the finding of fact is not only not contrary to the evidence, but is in accord with the only evidence submitted.

We nevertheless feel obliged to comment on the quantum of proof presented. The respondent defends the finding because of the family court commissioner's recommendation that the divorce be granted and his statement that the parties are 'irreconcilable.' The family court commissioner here failed to comply with the statutory mandate that he advise the court of the merits. While his sociological appraisal that the parties are 'irreconcilable' is of importance in determining whether further efforts should be made to save a marriage, his opinion has no probative value. It does not supplant the need for evidence. Our laws properly require not a finding that the parties cannot get along with each other, but a finding that one of the parties has so violated the contractual obligations of the marriage covenant that under law the other is no longer bound. When the family court commissioner functions as the statute contemplates, he is a valuable adjunct to the court. He can, by his independent investigation, prevent collusive frauds upon the court, can assure that the position of the public and of the parties are fairly presented to the court, and can assure the court that all efforts that are compatible with the public and individual interests have been undertaken to preserve a marital status, but his so-ciological opinion is not evidence to be weighed in considering the merits of the cause.

Although we cannot thus shore up the skeletal evidence upon which the...