Rosenthal v. Rosenthal
| Decision Date | 10 January 1961 |
| Citation | 107 N.W.2d 204,12 Wis.2d 190 |
| Parties | Shirley ROSENTHAL, Plaintiff-Appellant, v. Alvin M. ROSENTHAL, Defendant-Respondent, Rosenthal Investment Co., a Wisconsin corporation, Marine National Exchange Bank, a banking corporation, Samuel Rosenthal, M.D., Impleaded Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Rubin, Ruppa & Wegner, Milwaukee, for appellant.
Harry S. Sicula, Milwaukee, for respondent.
The issue is whether the trial court had jurisdiction. If the action is one to compel support by the husband, personal service on him in Wisconsin is required; however, if the action is one for legal separation, the jurisdiction of the court may be based upon service on a defendant outside of the state and by publication of the summons.
Ch. 595, Laws of 1959, made important changes in the laws governing marriage and divorce. The new family code became effective January 1, 1960, except for actions affecting marriage commenced prior to that date. The family code existing on January 1, 1960, governs this case. Note--further important changes in the family code were enacted by ch. 690, Laws of 1959, which became effective June 23, 1960. Reference to sections in this opinion, therefore, are to the law as it existed prior to the latter date. By sec. 247.03, Stats., 28 W.S.A. 30 (1960 pocket part), actions affecting marriage were classified as follows: (a) to affirm marriage, (b) annulment, (c) divorce, (d) legal separation (formerly divorce from bed and board), (e) compel support by husband. At no place in the statute are the words 'separate maintenance' used. Sec. 247.07, 28 W.S.A. 32 (1960 pocket part), states the causes of action for which a divorce or legal separation may be granted. Sec. 247.08, 28 W.S.A. 35 (1960 pocket part), deals with actions to compel support by the husband.
The summons used in the instant case is ambiguous. It refers to a complaint for separate maintenance and also to one which will allege a cause of action under sec. 247.07, Stats. The plaintiff vigorously argues she intended to commence an action for legal separation. The test is not what the plaintiff intended, but what she did. There is a distinction between separate maintenance and legal separation. Separate maintenance has customarily been used interchangeably with support and sometimes with alimony. Gilbert v. Hayward, 1914, 37 R.I. 303, 92 A. 625; Dyer v. Dyer, 1937, 212 N.C. 620, 194 S.E. 278; Matter of Morizzo, 1957, 335 Mass. 251, 139 N.E.2d 719; Vanderbilt v. Vanderbilt, 1955, 207 Misc. 291, 138 N.Y.S.2d 222; Snyder v. Lane, 1951, 135 W.Va. 887, 65 S.E.2d 483. An action for separate maintenance in some states is similar in purpose and nature to an action in this state to compel support by the husband. Mitchell v. Mitchell, 1903, 31 Colo. 209, 72 P. 1054.
An action to compel support by the husband under sec. 247.08, Stats., is distinctly different from an action for legal separation. The former action is brought against a husband who fails or refuses without lawful or reasonable excuse to provide for the support and maintenance of his wife and minor children. The marital status is unaffected. The refusal or neglect to adequately support a wife when the husband is sufficiently able to do so may be grounds, also, for either a divorce or a legal separation in which actions the marital status is affected. However, when such grounds are used in an action to compel support by the husband, the marital status is neither dissolved, as in divorce, nor is legal authorization granted to the wife to live separately, as in legal separation. See Williams v. Williams, 1928, 33 Ariz. 367, 265 P. 87, 61 A.L.R. 1264; Renner v. Renner, 1935, 181 A. 191, 13 N.J.Misc. 749; 27 A C.J.S. Divorce § 1, p. 16.
We believe the reference in the summons to sec. 247.07, Stats., is not determinative of the nature of this action for jurisdictional purposes. If this reference is controlling without considering what kind of action is otherwise stated in the summons, no one would know whether an action for divorce or legal separation was started. Actions for divorce by sec. 247.03, 28 W.S.A. 30 (1960 pocket part), means divorce from the bonds of matrimony, or absolute divorce, and jurisdiction of such actions is covered by sec. 247.06, 28 W.S.A. 32 (1960 pocket part). However, jurisdiction of actions for legal separation is covered by sec. 247.05, 28 W.S.A. 31 (1960 pocket part) and for actions to compel support by sec. 247.065, 28 W.S.A. 32 (1930 pocket part). The plaintiff argues this ambiguity in the summons is clarified by reference to the petition which states the action was one for divorce from bed and board forever. This language is no longer used in the new family code. The proper designation is legal separation. The petition had for its purpose the securing of an order restraining the defendant from making an assignment of his stock in the Rosenthal Investment Company and enjoining the other impleaded defendants from transferring any assets of the defendant under their control. The order, however, did not restrain the defendant; it restrained only the impleaded defendants. No question was raised in the court below or on this appeal of the validity of attempting such an order upon a petition in this type of case, and we do not pass on the question.
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