Pauly v. Pauly

• Decision Date: 11 October 1887
• Citation: 34 N.W. 512,69 Wis. 419
• Parties: PAULY v. PAULY.
• Court: Wisconsin Supreme Court

69 Wis. 419

34 N.W. 512

PAULY

v.PAULY.

Supreme Court of Wisconsin.

October 11, 1887.

Appeal from Milwaukee county court.

Jenkins, Winkler, Fish & Smith, for respondent.

Markham & Noyes, for appellant.

ORTON, J.

The complaint charges very many acts of cruel and inhuman treatment of the respondent by the appellant, and states that the defendant is worth $40,000; and prays for a divorce, the custody of their infant female child, born the sixteenth day of August, 1885, and for alimony. On this appeal the judgment of divorce is not questioned, but the appellant complains of the custody of the child being given to the respondent, and of the amount of the alimony allowed to her. The learned counsel of the appellant does not so much question the fact of the cruelty and inhuman treatment charged, but attempts to extenuate it by saying in his brief that “there is nothing in her [the respondent's] testimony that discloses any premeditated acts of cruelty by the appellant at any time,” and that “no one ever knew of this trouble [the abuse of her mother, and his choking her, and kicking her out of bed] except herself and her husband.” The county court found that the appellant had been guilty of cruel and inhuman treatment of the respondent as alleged in the complaint.

The principal complaint in this case now being the amount of alimony allowed, the treatment of this wife by her husband during their married life is a most important consideration. 2 Bish. Mar. & Div. § 472. In Burr v. Burr, 7 Hill, 207, Chief Justice NELSON says: “The scenes of suffering through which this lady has passed during her cohabitation with the appellant are so shocking and revolting to our nature as to induce one to discredit the account were it not practically admitted in the answer, and most abundantly substantiated by the witnesses. Where the delinquency of the husband has been established, and the wife is the injured party, driven by his cruelty from the comfort of domestic engagements, she should be liberally supported.” This case is cited by counsel on both sides, and certainly the above language is very appropriate to this case. The many scenes of most brutal and revolting cruelty, related by the respondent in her testimony, through which this young wife and mother was compelled to pass during the short period of her married life,--sometimes in public, but mostly in the privacy of her home, where she could have no protection,--are almost without precedent, and indicate, on the part of the appellant, a cowardly, unmanly, and brutal nature that can feel no compunction or shame, and totally unfits him for the domestic relations of a husband and a father. It is said that he has most respectable connections in life, whom he has at the same time most outrageously disgraced. The respondent was compelled to fly from his cruelty and tyranny to save herself and her child from injury, and she certainly ought to have the most liberal provision made for her support in the future, compatible with his ability to pay it or earn it. Alimony in such a case is in the nature of damages or compensation for the injury, and for the abused wife's physical and mental sufferings, and for the loss of (what it ought to be) a good husband's society; and she ought to be made as well off pecuniarily, away from him, as could reasonably have been expected with him. 2 Bish. Mar. & Div. § 468; Barker v. Dayton, 28 Wis. 367.

I will not tarry on the question raised by his learned counsel whether he or she is the most fit person to have the custody of their female infant, or hesitate to affirm that part of the judgment.

The practice adopted, in this case, of inquiring...