Molloy v. Molloy

• Decision Date: 28 April 1970
• Docket Number: No. 195,195
• Citation: 46 Wis.2d 682,176 N.W.2d 292
• Parties: Marguerite MOLLOY, Plaintiff-Respondent, v. John J. MOLLOY, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 292

176 N.W.2d 292

46 Wis.2d 682

Marguerite MOLLOY, Plaintiff-Respondent, v. John J. MOLLOY, Defendant-Appellant.

No. 195.

Supreme Court of Wisconsin.

April 28, 1970.

Rehearing Denied June 26, 1970.

Marguerite Molloy commenced this action for divorce against the defendant John J. Molloy, alleging cruel and inhuman treatment. The answer denied the allegations of the complaint and the counterclaim requested an absolute divorce on the grounds of cruel and inhuman treatment and adultery. After a trial to the court without a jury, the court dismissed the plaintiff's complaint for lack of prosecution, granted an absolute divorce on the counterclaim on the grounds of cruel and inhuman treatment and concluded the alleged ground of adultery was not proved. The judgment provided that Marguerite Molloy was to receive 40 percent of the property, $100 a month alimony, her separate estate of $7,619, and custody of their 5-year-old daughter, 14-year-old son, and 19-year-old daughter. Support money was granted in the sum of $200 per month for the 5 and 14-year-old children. By a subsequent order, the plaintiff was awarded $1,000 as a contribution toward her attorney's fees on this appeal.

This appeal is from the part of the judgment involving the question of adultery, alimony, allowance of 40 percent of the property, the custody of the 5-year-old daughter, and the allowance of the $1,000 attorney's fees.

Brady, Tyrrell, Cotter & Cutler, Milwaukee, John A. Keck, Milwaukee, of counsel, for appellant.

Hanley, Wedemeyer & Cavanaugh, Milwaukee, Robert F. Cavanaugh, Milwaukee, of counsel, for respondent.

HALLOWS, Chief Justice.

The granting of the absolute divorce on the ground of cruel and inhuman treatment is not in issue on this appeal, but it is contended by the defendant that the court erred in not finding the plaintiff had committed adultery. The effect of so finding would under sec. 247.26, Stats., ¹ be the denial of alimony to the plaintiff. We think the trial court was in error in its evaluation of the proof on the issue of adultery.

The judicial approach laid down in Loveden v. Loveden (1810), 2 Hagg.Con. 1, 4 Eng.Ecc. 461, by Sir William Scott (Lord Stowell) has become a touchstone in divorce cases involving adultery. In Freeman v. Freeman (1872), 31 Wis. 235, this court quoted Lord Stowell, to-wit:

'It is a fundamental rule, that it is not necessary to prove the direct fact of adultery, because, if it were otherwise, there is not one case in a hundred in which that proof would be attainable: it is very rarely indeed that parties are surprised in the direct fact of adultery. In every case, almost, the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion; and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down universally, though many of them, of a more obvious nature and of more frequent occurrence, are to be found in the ancient books: at the same time it is impossible to indicate them universally; because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a harsh and intemperate judgment, moving upon appearances that are equally capable of two intepretations, neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man.'

This court and others, as a guide to the exercise of guarded discretion, has classified circumstances relating to adultery mainly in terms of what has been labeled 'adulterous disposition and opportunity.' Monteith v. State (1902), 114 Wis. 165, 168, 89 N.W. 828; Ermis v. Ermis (1949), 255 Wis. 339, 38 N.W.2d 485; Hartman v. Hartman (1948), 253 Wis. 389, 34 N.W.2d 137; see also 2 Greenl. Ev., secs. 40, 41, and Baker v. United States, 1 Pin. 641.

Sometimes this guide has been abbreviated into the statement that proof of inclination and opportunity suffices; but that statement must be understood to mean that inclination is more than ordinary human tendencies and requires proof of conduct reasonably suggesting a specific libidinous tendency of each of the parties toward the other; and that opportunity means more than mere chance and requires the parties to be together under such circumstances as would lead a reasonable and just person to conclude the fact. See Till v. State (1907), 132 Wis. 242, 111 N.W. 1109.

Proof of adultery frequently must rest on circumstantial evidence but even in the exercise of a guarded and cautious discretion such evidence may be compelling. See State v. Johnson (1960), 11 Wis.2d 130, 104 N.W.2d 379. The burden of proof in respect to adultery in divorce cases is the middle ground and is stated in terms of clear, satisfactory and convincing evidence. Poertner v. Poertner (1886), 66 Wis. 644, 29 N.W.2d 386; Kuehn v. Kuehn (1960), 11 Wis.2d 15, 104 N.W.2d 138; City of Madison v. Geier (1965), 27 Wis.2d 687, 135 N.W.2d 761.

It is not necessary to detail the evidence concerning the activities of the plaintiff and a Mr. Daniels. The trial court rejected as incredible the testimony of a private investigator concerning their conduct on the night of April 2d and the early morning of April 3d, 1968. But what the trial court did not consider in concluding that adultery was not proved was the inference to be drawn from the fact Mrs. Molloy refused to testify on cross-examination concerning her conduct and claimed her right under the Fifth Amendment not to incriminate herself. Even if the testimony of the private investigator relating to the night of April 2d is discounted, the rest of his testimony and that of Mr. Molloy, plus the inference from invoking the Fifth Amendment is sufficient to meet the burden of proof of adultery. However, we do not find adultery was committed. That issue is to be retried by the trial court on remand.

It is argued the inference from the invoking of the Fifth Amendment may be drawn only in those cases where the party claiming the protection is seeking affirmative relief. We do not believe this to be a correct statement of the law. Although in many civil cases the action is dismissed or the testimony...