Newton v. Newton

Decision Date03 January 1967
Citation147 N.W.2d 328,33 Wis.2d 182
PartiesDayton R. NEWTON, Appellant, v. Adeline F. J. NEWTON, Respondent.
CourtWisconsin Supreme Court

Michael Klein, Milwaukee, Irving D. Gaines and David A. Saichek, Milwaukee, of counsel, for appellant.

Kersten & McKinnon, Milwaukee, for respondent.

BEILFUSS, Justice.

The plaintiff's major contention on this appeal is that the action of the trial court is equivalent to granting a nonsuit or a demurrer to the evidence at the close of plaintiff's case. At this stage in a trial, plaintiff asserts, the trial court must construe the evidence in the light most favorable to the plaintiff and must give the plaintiff the benefit of favorable inferences that can reasonably be deduced from the credible evidence. Beaudoin v. Watertown Memorial Hospital (1966), 32 Wis.2d 132, 136, 145 N.W.2d 166; Bartz v. Braun (1961), 14 Wis.2d 425, 111 N.W.2d 431. Plaintiff contends that the trial court erred in construing the evidence in the light most unfavorable to the plaintiff.

In order to pass on plaintiff's contention it is important first to recognize the nature of the action taken by the trial court. The usual abode of a judgment of nonsuit is a jury case where the defendant has moved for nonsuit after the close of the plaintiff's case and before the defendant has offered any evidence. Such a judgment is usually not on the merits and is not ordinarily a bar to another action. Kaley v. Van Ostrand (1908), 134 Wis. 443, 445, 114 N.W. 817. In like manner, a peremptory nonsuit is not on the merits and is not a bar to another action for the same cause. Gates v. Parmly (1896), 93 Wis. 294, 310--311, 66 N.W. 253, 67 N.W. 739; Gummer v. Trustees of Village of Omro (1880), 50 Wis. 247, 252--253, 6 N.W. 885. The case at bar was to the court; no motion for nonsuit was made by the defendant. At the close of plaintiff's case the court dismissed plaintiff's action on the merits and dictated a memorandum decision in which the court stated which inferences it drew from the testimony. Thereafter formal findings of fact and conclusions of law were filed, and judgment was entered dismissing the plaintiff's action on the merits. Since its action was on the merits, the court did not grant a nonsuit in this case. Rather, as trier of fact and law, the court weighed the evidence, drew inferences from the testimony, found that the defendant was not guilty of cruel and inhuman treatment toward the plaintiff, and denied the divorce on the merits.

We do not consider the findings and judgment to be a dismissal upon a motion for nonsuit. 1 Rather the court dismissed the action for what it considered to be insufficiency of the proof.

The court, in its discretion, can dismiss a divorce complaint for want of sufficient proof at the conclusion of the plaintiff's case, without hearing the testimony of the defendant, if the evidence offered by the plaintiff does not satisfy the statutory requirements for divorce as those requirements have been defined and interpreted by this court. However, at this stage of the trial, unless the evidence is inherently or demonstrably incredible, the trial court must construe the evidence in the light most favorable to the plaintiff and must give the plaintiff the benefit of the favorable inferences that can reasonably be deduced from the credible evidence. Thus at the end of the plaintiff's case, if the evidence is tested and evaluated in this manner and it still does not come up to the statutory standards for divorce, the trial court may dismiss the complaint; however, if the evidence so evaluated does meet the statutory standards, the plaintiff has made a prima facie case and is entitled to a judgment of divorce if no further contradictory proof is offered.

'In Lewis v. Lewis, supra, (167 Cal. 732, 141 P. 367, 52 L.R.A.,N.S., 675), the supreme court of California said:

"A case having been made out, there is no arbitrary power to grant or refuse the relief. But, in every action for divorce, the court is called upon to determine whether the evidence before it does establish the truth of the charge made in the complaint.

"As in other cases, every intendment is in favor of the finding made. Such finding is not to be overthrown on appeal, unless it is very plain to the appellate court that the conclusion reached cannot be supported on any rational view of the testimony.'

'In Tipton v. Tipton, supra (169 Iowa 182, 151 N.W. 90), it was held that courts do not exercise the pardoning power, and the fact standing by itself, that society will be benefited more by refusing a divorce than granting it, confers no choice on the court, where the requirements of the law as to the right to a divorce are met. In the absence of legal justification for denial, the evidence having established the allegations respecting cruel and inhuman treatment of the plaintiff by the defendant, a divorce should have been granted. There is no finding of the court and no evidence of anything that amounts to recrimination. It is quite evident from the finding quoted that the learned trial court in dealing with this matter acted on a mistake of law respecting the right of a court to exercise discretion in cases of this kind.' Mattson v. Mattson (1931), 204 Wis. 424, 426, 235 N.W. 767, 74 A.L.R. 269.

The plaintiff seeks a divorce upon the ground of cruel and inhuman treatment.

In Heffernan v. Heffernan (1965), 27 Wis.2d 307, 312--313, 134 N.W.2d 439, 442, the court described the tests that must be met by a party seeking a divorce on the ground of cruel and inhuman treatment:

'* * * we conclude that no precisely described or enumerated acts of one spouse toward another can be defined as cruel and inhuman treatment. In order to constitute cruel and inhuman treatment, such as to warrant the granting of a divorce or a legal separation, the court must consider the totality of conduct and the detrimental effect it has upon necessary marital relationships and its grave effect upon the health of the other spouse. The conduct of the offending spouse must be unreasonable and unwarranted, it must render the parties incapable of performing their marital duties, and it must have a detrimental effect upon the physical or mental health of the offended spouse. In applying these tests the court should be cognizant of the desirable public policy in maintenance of marriage and family. The court may properly consider the age of the parties, the duration of the marriage, and presence and age of the children and the probability of delinquency, and the public dependency of the parties or the children.'

Briefly, the plaintiff testified that for the last seven and one-half years his wife has refused to have sexual relations with him because 'she was either too tired or not feeling well or something or other'; that for the past ten years his wife had been an extremely poor housekeeper, doing no laundry, cleaning or cooking; that there had been no housekeeper in the house for at least ten years; that the family's meals were prepared by Mrs. Newton's mother, who lived in the downstairs part of the duplex in which they lived; that he had had no company to speak of in their...

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5 cases
  • Heritage Mut. Ins. Co. v. Thoma
    • United States
    • Wisconsin Supreme Court
    • February 3, 1970
    ...a motion for a nonsuit is a proper motion in a case tried before the court without a jury.' Newton v. Newton (1967), fn. 1, 33 Wis.2d 182, 187, 147 N.W.2d 328, 330.10 'It is the duty of this court, notwithstanding no issue has been raised by counsel, to take notice of a point which goes to ......
  • Jacobs v. Jacobs
    • United States
    • Wisconsin Supreme Court
    • May 6, 1969
    ...(1967), 36 Wis.2d 29, 33, 152 N.W.2d 923; Gauer v. Gauer (1967), 34 Wis.2d 451, 454, 455, 149 N.W.2d 533; and Newton v. Newton (1967), 33 Wis.2d 182, 188, 189, 147 N.W.2d 328. The testimony of the wife, though skeletal, appears sufficient to meet her burden of proof that her husband's condu......
  • Petzak v. Graves
    • United States
    • Wisconsin Supreme Court
    • January 3, 1967
  • Household Utilities, Inc. v. Andrews Co., Inc.
    • United States
    • Wisconsin Supreme Court
    • January 6, 1976
    ...to be indicated by previous decisions of this court and by the Rules of Civil Procedure which become effective January 1, 1976. 6 In Newton v. Newton, supra, a contested divorce case, this court indicated that a motion for nonsuit was probably inappropriate in a case tried to the court with......
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