Roberts v. Roberts

• Decision Date: 07 April 1931
• Parties: ROBERTS v. ROBERTS.
• Court: Wisconsin Supreme Court

204 Wis. 401

236 N.W. 135

ROBERTS

v.ROBERTS.

Supreme Court of Wisconsin.

April 7, 1931.

Appeal from a judgment of the County Court of Walworth County; Roscoe R. Luce, County Judge.

Divorce action by Marie Roberts against John Roberts, in which defendant filed a counterclaim. Judgment was rendered granting defendant a divorce, and plaintiff appeals from the judgment, and defendant asks review of that portion of the judgment allowing plaintiff a certain sum as final division.--[By Editorial Staff.]

Reversed, with directions.

This action, commenced in October, 1929, was brought by plaintiff against defendant for divorce from bed and board and for her separate maintenance, alleging cruel and inhuman treatment of her by her husband.

The defendant answers denying the material allegations of the complaint respecting the cruel and inhuman treatment, and in a counterclaim seeks divorce from the bonds of matrimony alleging misconduct amounting to cruel and inhuman treatment of him by his wife, and asking that he have judgment decreeing in him the title of all property deposited in the First National Bank of Lake Geneva under an antenuptial agreement between the parties dated October 1, 1928.

The court gave judgment in April, 1930, in favor of defendant on his counterclaim dissolving the bonds of matrimony, and “that as a final division of the estate, both real and personal, of the defendant, the said defendant pay to the plaintiff the sum of $700, and that the antenuptial contract be canceled and set aside and that the title of all the securities deposited thereunder be vested in the defendant free and discharged of the terms of said contract.” Plaintiff was allowed $300 additional attorney fees.

The court found that the marriage occurred at Crown Point, Ind., October 28th, after an acquaintanceship of a few months; that plaintiff had been twice married and divorced and was fifty-one years of age; that defendant was sixty-one years of age, was a resident of Walworth county, is now and has been for many years engaged in buying and selling live stock; that his children by a former marriage are a son and daughter, both over twenty-one years of age; that defendant's daughter by reason of mental and physical infirmity is incapable of supporting herself and together with her child is dependent upon defendant for support; that the defendant failed to immediately announce the marriage of the parties, but that this conduct was to some extent participated in by the plaintiff; that the defendant made certain accusations against plaintiff concerning her relations with one Thomas Lanagan, but that because of her social standing and demeanor in court did not cause her mental suffering, and did not constitute cruel and inhuman treatment, and does not render the discontinuance of the parties living together as man and wife intolerable and dangerous to plaintiff; that the conduct of the defendant in respect to the foregoing was not wanton and willful, that he had no purpose of inflicting suffering and had no intent to injure; that there was no proof that the defendant placed poison in the teakettle; that shortly after the marriage of the parties Thomas Lanagan, who was a nephew of a former husband of plaintiff, came to live with the parties and conduct a grocery and meat business in a portion of the building connected with the residence of the parties, which building was owned by the defendant and had been operated as a store by the former wife of the defendant. The court also found that there was no proof that the relationship between plaintiff and said Thomas Lanagan, either before or after the marriage of the parties, was improper, but that at all times the plaintiff evinced an unnatural devotion to and interest in said Thomas Lanagan and extended to him the love, confidence, understanding, and helpfulness which should have gone to her husband, and that the circumstances were such that the defendant had cause for his suspicions of her marital fidelity, and that this attitude caused the defendant worry, anxiety, and mental suffering; that plaintiff resented the protests of the defendant and when defendant refused to permit the said Thomas Lanagan upon the premises plaintiff separated from the defendant; that such separation occurred on May 15, 1929, and that this conduct on the part of the plaintiff constituted cruel and inhuman treatment toward the defendant.

That plaintiff at the time of her marriage owned an undivided one-half interest in a house and lot in Downers Grove, Ill., and one half interest in certain California real estate of the value of about $6,000; that the other half interest is owned by said Thomas Lanagan. That three days prior to the marriage of the parties they entered into the antenuptial contract under which the defendant deposited securities to the amount and value of some $8,500 in the First National Bank of Lake Geneva, Wis., there to be held until the death of the defendant, upon which event the plaintiff should have title to the same; that such antenuptial contract was made in consideration of the marriage of the parties and by its terms the plaintiff waived all interest in any other property of the defendant. The court also found that by reason of various transactions and operations the plaintiff has received from the securities set aside under the antenuptial contract the amount of $3,900, and there remains with...