Schade v. Schade

• Decision Date: 07 January 1957
• Citation: 80 N.W.2d 416,274 Wis. 519
• Parties: Betty SCHADE, Respondent, v. Albert SCHADE, Appellant.
• Court: Wisconsin Supreme Court

Page 416

80 N.W.2d 416

274 Wis. 519

Betty SCHADE, Respondent, v. Albert SCHADE, Appellant.

Supreme Court of Wisconsin.

Jan. 7, 1957.

Gruhle & Fessler, Henry A. Detling, Sheboygan, for appellant.

Alfred B. Gerber, Sheboygan, for respondent.

STEINLE, Justice.

Sec. 52.11, Stats., pursuant to which this action was commenced, provides as follows:

'52.11. Actions to compel support by husband. If any husband fails or refuses, without lawful or reasonable excuse, to provide for the support and maintenance of his wife or minor children, the wife may commence an action in any court having jurisdiction in actions for divorce, to compel such husband to provide for the support and maintenance of herself and such minor children as he may be legally required to support. The court, in such action, may determine and adjudge the amount such husband should reasonable contribute to the support and maintenance of said wife or children and how such sum should be paid. The amount so ordered to be paid may be changed or modified by the court upon notice of motion or order to show cause by either the husband or wife upon sufficient evidence. Such determination may be enforced by contempt proceedings.'

The parties were married on June 24, 1933. When this action was brought, they resided in Sheboygan. The plaintiff at the time was 41 years of age, and the defendant 49. There were three children born of the marriage, all daughters, one who had reached her majority; one born October 23, 1940; and one born July 8, 1944. The defendant is employed as a traveling salesman for a wholesale grocery concern and works out of Sheboygan. His earnings are $245 per month take-home pay, and $150 per month guaranteed expense allowance, plus a bonus annually. Shortly before the commencement of this action the plaintiff's mother died and left a legacy to the plaintiff of $25,000. Plaintiff had been gainfully employed as a receptionsit and manager of dress shops for about a year prior to the commencement of this action.

The plaintiff previously had instituted an action for divorce in Sheboygan county against the defendant. That action was contested. On November 12, 1953, judgment was rendered denying a decree of divorce. No application was made for an order under sec. 247.28, Stats., which permits support and maintenance arrangement for a wife and children, notwithstanding that a divorce is denied. It appears from the evidence that the parties were separated for a year during the pendency of the divorce action. The custody of the minor children had been temporarily placed with the plaintiff during that period, and she and the children occupied the home of the parties. At the conclusion of the divorce trial the plaintiff returned to the home, and the defendant immediately communicated with her advising that he intended to move back into the home. She requested that he wait until they had talked over the situation, and had decided matters between them. Although he agreed to such an arrangement, he did not wait for a conference as proposed, but presented himself with his baggage at the home on the evening of the second day after the trial. With reference to occurrences at that time, the plaintiff testified that she 'just took his baggage and threw it out of the door, and took him and threw him out of the door too, and then I locked the door.' The following day the defendant returned with a police officer who advised the plaintiff to move out of the house and into a hotel. A few days later she moved to furnished rooms and took the minor children with her. They have not returned. He has been in possession of the home and has resided there since the plaintiff left. Notwithstanding his entreaties to have the plaintiff and the children return to the home, the plaintiff expressed an intention of not going back. A letter to the plaintiff from the defendant's counsel indicated that the defendant was willing to furnish support and maintenance, provided the plaintiff and children would return to the home.

It is the position of the defendant that the acts of the plaintiff in leaving the home of the parties under the circumstances appearing of record which disentitled her to be supported by him, and in taking the minor children with her, constituted 'lawful or reasonable excuse' (as referred to in sec. 52.11, Stats.) for his failure and refusal to support the children, and that the trial court erred in directing support payments for the children. In the alternative it is contended that notwithstanding the power of the court to adjudicate support payments for minor children when the mother removes them from the home of the parties, nevertheless, in circumstances as here, where the mother has an ample and independent estate of her own and is gainfully employed, it was an abuse of power to direct the husband to contribute to the support of the children. As a further alternative challenge of the judgment, the defendant maintains that since sec. 52.01(4), Stats., provides for support of dependent children by husband or wife, and since sec. 6.015, Stats., gives women the same rights under the law as men in the care and custody of children, the plaintiff under the facts of this case, assumed the primary obligation to support the children.

It appears without dispute that from October, 1953, when the decree of divorce was denied, until January, 1954, when this action was commenced, the defendant contributed only the sum of $15 for the support of the children. That amount was entirely inadequate to maintain the children with respect to the necessities of life. The record indicates that he possessed sufficient financial ability to have supported them properly.

Sec. 52.11, Stats., is foundationed upon the principle that a husband has a legal obligation to maintain and support his wife and children. Under its provisions such support can be directed and compelled by a court of competent jurisdiction in a civil action brought for such purpose, unless it appears that the failure or refusal of the husband in regard to his nonsupport is based upon a lawful or reasonable excuse.

It is the rule in this state that a wife in leaving her husband without just cause is not entitled to be supported by him. Nowack v. Nowack, 1940, 235 Wis. 620, 293 N.W. 916. A wife's separation from her husband without just cause constitutes a lawful and reasonable excuse under sec. 52.11, Stats., for the husband's failure and refusal to support her. While in a number of states, courts deny the liability of a father to the mother for necessaries furnished to children taken from the father's home by the mother without his consent, and while some courts regard the father as wholly relieved of his duty to provide support for such children when t...