Nehls v. Nehls

• Citation: 21 Wis.2d 231,124 N.W.2d 18
• Parties: Shirley NEHLS, Respondent, v. Darwin NEHLS, Appellant.
• Decision Date: 29 October 1963
• Court: Wisconsin Supreme Court

Page 18

124 N.W.2d 18

21 Wis.2d 231

Shirley NEHLS, Respondent, v. Darwin NEHLS, Appellant.

Supreme Court of Wisconsin.

Oct. 29, 1963.

Strub, Woodworth & O'Connell, Beaver Dam, for appellant.

Hartman Law Office, David P. Hartman, Juneau, for respondent.

DIETERICH, Justice.

The record discloses te following facts: Shirley and Darwin Nehls were married in Juneau, Wisconsin, on January 21, 1961. A male child, Gene K. Nehls, was born to Shirley on April 16, 1961. On August 2, 1961, Shirley commenced an action against Darwin for divorce on grounds of cruel and inhuman treatment. Shirley and Darwin were minors at the time the proceedings were begun, although Darwin had reached the age of twenty-one prior to the trial. Both Shirley and the minor child were represented by guardians ad litem in the court below. Shirley became twenty-one on June 23, 1963.

The alleged acts of cruel and inhuman treatment as set forth in the complaint and in the bill of particulars are: That Darwin refused to visit Shirley at the hospital at the time of the birth of the child; that he refused to adequately support Shirley and the child; and that he publicly denied being the child's father.

Darwin, in his answer to the complaint, denied that the child Gene K. Nehls, was a child of the marriage, and denied that he refused to visit Shirley in the hospital. By way of counterclaim, he asked that he be declared not to be the father of the child, that Shirley's complaint be dismissed, and that the marriage be declared null and void on grounds of fraud. In support of his counterclaim, Darwin alleged that prior to their marriage, Shirley had told him that she was pregnant, and that he was the father of the child; that as a result of this fraud he was induced to enter into the marriage contract; and that only when the child was born, after a full period of gestation did he discover the falsity of Shirley's representations.

Shirley testified that she first had sexual contact with Darwin during the second week of July, 1960, and that it was their custom to have intercourse whenever Darwin came home to Juneau, Wisconsin. Darwin was in military service at the time and was stationed at Great Lakes Naval Base near Waukegan, Illinois. Shirley stated that Darwin came home every weekend during July and August, 1960, and that she saw him on each of these visits. She denied ever having sexual relations with anyone other than Darwin, although she had dated one Louis Brakob in 1959. Shirley's last menestrual period occurred between the 15th and 20th of June, 1960. She testified that in August or September of 1960, she told Darwin that she was pregnant and had been since July, and that Darwin suggested marriage at that time.

The record discloses a series of letters from Darwin to Shirley in which he arranged dates with her for the weekends of July 2nd, July 9th, July 16th and July 29, 1960. Darwin testified that he had his first date with Shirley on July 30, 1960. When questioned about the letters, he admitted writing them, but stated that he did not keep the dates arranged for the first three weekends in July. Darwin said that he and Shirley first had intercourse on September 24, 1960, and that they had no sexual contact during the month of July, 1960. He also testified that Shirley first told him that she was pregnant on or about November 19 1960, and that he believed he was the father of the child until its birth in April, 1961, when he learned that it was a full term baby. Darwin admitted telling people 'at every opportunity' that he was not the child's father, and that he had refused to support Shirley and the child for this reason. Darwin and Shirley have not lived together as husband and wife since the birth of the child.

Darwin's mother, Mrs. Karl Nehls, testified that she saw Shirley in a car with Louis Brakob one night in the middle of September, 1960.

Shirley's mother, Mrs. Marcella Kohrt, testified that Darwin called on Shirley during the first, second and third weekends in July, 1960. The only questions asked Mrs. Kohrt on direct examination dealt with Darwin's visits. When Mrs. Kohrt was asked on cross examination whether Louis Brakob had come to the Kohrt home, the trial court sutained an objection to the question as being beyond the scope of the direct examination.

Darwin's brother testified that he had known Shirley since 1957, and that he had intercourse with her several times during 1958.

Dr. Norman Erickson of Beaver Dam testified as to normal periods of gestation and stated that, counting backwards from the date of the child's birth, the probable date of conception would be July 21, 1960. Basing his computations not on the date of birth, but on the assumption that Shirley's last menstrual period occurred during the middle part of June, 1960, he testified that the probable date of conception would be July 1, 1960. Taking the two together, the doctor stated that the most likely time would be some time between July 1st and July 21, 1960. Dr. Erickson's testimony and the hospital records disclosed that the baby was a full term child, weighing six pounds eleven ounces, with a length of nineteen and one-half inches, at birth.

After all the evidence was in, the trial court made the following comments from the bench with reference to Shirley's testimony as to her chastity:

'The court first has some observations to make on the credibility of the plaintiff. Plaintiff commited perjury on the witness stand in the opinion of the court. However, the court considers that this does not substantially impair the credibility of the plaintiff. The court observes that it is hardly conceivable that any female, even under oath as this plaintiff was under oath, would have answered the question put to her on direct examination and relating to her chastity in any different manner.'

The trial court likewise made the following comments with reference to the credibility of Darwin's testimony:

'The tenor of the letters which were received in evidence, written by the defendant to the plaintiff on June 28 of 1960, July 6, 1960, July 13, 1960, and July 27, 1960, the tenor of these letters is hardly consistent with the defendant's testimony that he had never dated the plaintiff until July 30, 1960. Indeed the tenor of these letters is that the parties did have a relationship prior to July 30, 1960. * * * the defendant in this action has asserted the illegitimacy of a child born in lawful wedlock and therefore the defendant has the burden of proving this assertion by a clear and satisfactory preponderance of the evidence.'

The court was of the opinion that Darwin did not meet the required burden of proof.

The following facts were found by the trial court: That the child, Gene K. Nehls, was born of the marriage, and that Darwin's acts of telling people that he was not the father, along with his refusal to support Shirley and the baby, constituted cruel and inhuman treatment. The court's conclusions of law were that Shirley was entitled to an absolute divorce, and that Darwin Nehls was the father of the child.

The issues on this appeal are:

(1) Whether the finding that the plaintiff wife committed perjury on the witness stand so impaired her credibility as to require the trial court to refuse her a divorce.

(2) Whether the trial court erred in refusing to allow cross examination of plaintiff's mother as to plaintiff's associations with other men.

(3) Whether the trial court's findings were against the great weight and preponderance of the evidence in the following respects:

(a) In determining that the defendant was the father of the child, and that he was not entitled to have the marriage annulled on grounds of fraud.

(b) In granting an absolute divorce to the plaintiff.

(1) Perjury.

Appellant Darwin Nehls contends that Shirley's perjury should have caused the trial court to refuse her a divorce.

It is a fundamental rule of law that if a witness wilfully testifies falsely as to any material matter, the finder of fact may reject all of the witness's evidence, if it is not corroborated. Miller v. State (1909), 139 Wis. 57, 82, 83, 119 N.W. 850; Grosberg v. Grosberg (1955), 269 Wis. 165, 168, 68 N.W.2d 725. However, such rejection is not obligatory for this court has stated that wilfully false testimony on one point does not require a jury to reject all of the witness's evidence. Mercer v. Wright (1854), 3 Wis. 645; Mackowski v. Milwaukee Automobile Mut. Ins. Co. (1957), 275 Wis. 545, 550, 551, 82 N.W.2d 906. Where there is a dispute in testimony, the trier of fact is the judge of the weight and credibility to be accorded to the testimony of witnesses. Timm v. State (1952), 262 Wis. 162, 54 N.W.2d 46; Reimer v. Reimer (1959), 7 Wis.2d 146, 96 N.W.2d 375; Estate of Fillar (1960), 10 Wis.2d 141, 102 N.W.2d 210. In the instant action, the trial court was of the opinion that Shirley's testimony as to her chastity constituted perjury. However, the trial court also felt that her perjury on this point did not affect her credibility as to other related matters, and we agree.

(2) Cross examination.

The appellant contends that it is reversible error for the trial court to have barred the attorney for the defendant from cross-examining the mother of the plaintiff regarding the association of the plaintiff with Louis Brakob. The transcript reveals that the entire direct examination of Mrs. Kohrt was as follows:

'Q. Will you please state your name? A. Marcella Kohrt.

'Q. And Mrs. Kohrt, you testified here previously, didn't you today? A. Yes.

'Q. You are the mother of Shirley, the plaintiff? A. Yes.

'Q. Now Darwin has testified that during the month of July, 1960, the...