Rohloff v. Rohloff

• Decision Date: 09 November 1943
• Citation: 11 N.W.2d 507,244 Wis. 153
• Parties: ROHLOFF v. ROHLOFF.
• Court: Wisconsin Supreme Court

244 Wis. 153

11 N.W.2d 507

ROHLOFF

v.ROHLOFF.

Supreme Court of Wisconsin.

Nov. 9, 1943.

Appeal from a judgment and orders of the County Court for Dodge County; W. C. O'Connell, Judge.

Reversed.

FRITZ, J., dissenting.

Hertha Rohloff, the plaintiff, commenced this action on the 14th day of July, 1942, against Paul W. Rohloff for a divorce from bed and board. Judgment was entered on December 2, 1942, as of November 18, 1942, from which the defendant appeals.

There are also appeals from an order denying defendant's motion to modify the judgment and an order denying a new trial upon the ground of newly discovered evidence.

William H. Markham, of Horicon, for appellant.

August Kading, of Juneau, for respondent.

ROSENBERRY, Chief Justice.

The parties were married on the 14th day of June, 1940. At the time of the marriage the defendant was fifty years of age and had lived alone on his farm for twenty years prior to that time. The age of the wife does not appear. One child, Mary Ann, was born of the marriage on November 26, 1941. The complaint charges the defendant with cruel and inhuman treatment and the plaintiff asks for a divorce from bed and board only. After hearing the testimony of the plaintiff and her mother, the court directed judgment of divorce from bed and board for the plaintiff. That part relating to the property is as follows:

“It is further ordered, adjudged and decreed,

“1. That no division of the property of the parties hereto be made at this time, excepting the sum of $400 now held by the plaintiff and which belongs to the plaintiff, which is to be used as follows: $100 to be paid to August Kading as balance of attorney fees due; $100 to Thiel & Allen for balance of attorney fees; and the other $200 shall be used to apply upon the payment ordered to be made by the Court to the plaintiff for support money for herself and child.

“2. That the defendant be restrained from disposing of his personal property which has been listed pursuant to the Findings of Fact and Conclusions of Law as being:

“1. One City of Juneau School Bond in the sum of $1000 bearing 4% interest.

“2. One Certificate No. 75503 in the Federal Savings and Loan Association.

“3. Twenty (20) U.S. Adjusted Service Bonds of 1945 each of $50 denomination.

“That in the event the plaintiff or defendant desires to sell or dispose of any of the securities above listed, that a Court order must be obtained prior to the assignment thereof.

“3. That the defendant may freely exercise the right of disposition of livestock and machinery used in the operation of his farm without any order from the Court.

“4. That Mrs. Gebhardt, mother of the plaintiff, is entitled to the above which belongs to her.

“5. That the sum of $10. per week is awarded for support money at this time, subject to revision for the support of the plaintiff and her child, and after the sum of $200 in the bank is exhausted, payment shall be made at the rate of $10 per week, payable weekly on Friday of each week to the Clerk of the Court with the understanding that if it becomes burdensome to pay every week, that it may be paid twice a month.

“6. That the custody of the minor child, Mary Ann, is awarded to the plaintiff with the provision that the defendant may visit said child on the first and third Sunday of each month at the home of the plaintiff between the hours of two and five in the afternoon, it being understood that if his privilege to visit the child is to be exercised, that at least a day prior to the Sunday, the plaintiff shall be notified by the defendant of his intention to come and see the child.

“7. That the defendant file with this Court a verified statement showing all of his income and expenses on or before the 15th day of March, 1943, and every six months thereafter.”

On the motion to modify thereafter made by the plaintiff, the sixth paragraph relating to the custody of the minor child and the right of visitation was modified. No question is raised here in regard to the custody of the child or her right to support.

It is considered that the judgment is inequitable and unjust. At the time of the marriage the defendant was a farmer fifty years of age. For more than twenty years he had lived upon the farm without a housekeeper-apparently he had done his own cooking and housekeeping. It does not appear that he had been previously married. It appears that he accumulated all but $600 of the property of which he was possessed at the time of the marriage.

The plaintiff was the daughter of a banker who had never resided upon a farm and knew nothing about farm life or farm operations. Her age is not stated but it is quite apparent from the record that she knew her way around in the world. After the marriage she took possession of the home, refinished and refurnished it to some extent to suit herself, somewhat against the protest of the defendant. It appears that the plaintiff and her mother, who resided in town, visited back and forth two or three times a week and they apparently moved in upon the defendant as it appears that a stove used in the defendant's home was the property of the mother-in-law. It is quite evident that the defendant had little or nothing to say about the conduct of his household. He and his wife disagreed radically as to how to conduct it, what should be done and when it was to be done. It was differences over the plaintiff's conduct of the home that led to the charge of cruel and inhuman treatment. The plaintiff's father was the banker of the defendant and after her father's death she transferred defendant's securities to him and quite evidently knew all about his financial situation. She must have known that in marrying a man fifty years of age who had lived without the companionship of a woman for twenty years, they were likely to have difficulty in adjusting their lives. She appeared, however, to have been willing to take this risk. At the time she brought the divorce suit she had possession of his ready money amounting to $400 and all of his securities. It appears that upon going to the home of the defendant she commenced to keep a cash account of the defendant's income and his...