Weber v. Weber

• Decision Date: 08 April 1913
• Citation: 140 N.W. 1052,153 Wis. 132
• Parties: WEBER v. WEBER.
• Court: Wisconsin Supreme Court

153 Wis. 132

140 N.W. 1052

WEBER

v.WEBER.

Supreme Court of Wisconsin.

April 8, 1913.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action for divorce by Birdie M. Weber against Paul C. Weber. From the final judgment as subsequently modified, plaintiff appeals. From an order requiring him to pay certain alimony, defendant appeals. Judgment and order both affirmed.

On the 17th of December, 1910, plaintiff obtained an interlocutory decree of divorce against the defendant on the ground of cruel and inhuman treatment. The decree awarded plaintiff alimony in the sum of $50 per month, payable on the 1st day thereof. Before final judgment was entered upon the interlocutory decree, the defendant, on January 10, 1912, obtained an order to show cause why the provision of the decree relating to alimony should not be stricken out because of alleged misconduct of the plaintiff since the entry thereof. After a hearing upon this motion, at which testimony was taken and affidavits were presented, the provision was allowed to stand, and a final judgment in accordance with the terms of the interlocutory decree was entered on February 19, 1912. On the 12th day of March, 1912, the defendant obtained another order to show cause why the same relief should not be granted on the ground of misconduct of plaintiff after the entry of the final judgment. Plaintiff objected to the hearing of the last motion, on the ground that the facts alleged in support thereof were not sufficient to warrant or authorize a modification either of the interlocutory decree or final judgment. The objection was overruled, and after a hearing, at which testimony was taken and affidavits were presented, an order amending the interlocutory decree and final judgment was entered, and additional findings of fact were filed on May 2, 1912, wherein the court found that plaintiff had sexual intercourse with one Donald since the entry of the final decree on February 19th, and that she was a woman of bad character, and ordered that she be given the sum of $600 as a full and final division and distribution of the estate of the defendant, both real and personal, in lieu of all alimony. The January, 1912, term was by special order, pursuant to section 2424, Stats. 1911, continued as to this case up to and including the 4th day of May, 1912. On the 2d of May, 1912, a final judgment in accordance with the order that day filed was entered, from which the plaintiff appealed. On the 21st day of May, 1912, and at a subsequent term, plaintiff applied for an order requiring the defendant to pay the alimony of $50 per month for the months of March, April, and May, 1912, which was in arrears, and on the 1st day of June, 1912, the court entered an order directing the defendant to pay to the plaintiff the sum of $150, claimed to be due under the order of the 19th of February, 1912, for alimony for March, April, and May. From this order, after judgment, the defendant appealed.Stover & Stover, of Milwaukee, for appellant.

Quarles, Spence & Quarles, of Milwaukee (Louis B. Montfort, of Milwaukee, of counsel), for respondent.

VINJE, J. (after stating the facts as above).

[1] Upon the plaintiff's appeal it is claimed the court erred in entertaining a motion for the alteration of the decree of February 19, 1912, and in modifying the same by terminating alimony and making a final division of property between the parties. A sufficient answer to this claim is that the modification of the judgment was made within the term at which it was rendered. The record shows that the January, 1912, term was by special order, pursuant to section 2424, Stats. 1911, as to this matter adjourned till May 4, 1912, and that the modification was made May 2, 1912. It is well settled that a circuit court has full control over its judgments during the term within which they are rendered, and may vacate or modify the same at any time during the term with or without a motion therefor by the parties thereto or those affected thereby. Hansen v. Fish, 27 Wis. 535;Smith v. Milwaukee Electric Railway & Light Co., 119 Wis. 336, 96 N. W. 823;Frost v. Meyer, 137 Wis. 255, 118 N. W. 811; 1 Freeman on Judgments, § 90; 1 Black on Judgments, § 305. A judgment for divorce comes within this rule. R____ v. R____, 20 Wis. 331;Brown v. Brown, 53 Wis. 29, 9 N. W. 790. But it is not necessary to base the court's decision upon such a narrow ground, and it is deemed best to meet the claim of plaintiff's counsel that misconduct of the wife occurring subsequent to the entry of the final decree of divorce is no ground for modifying the allowance of alimony. To this point they cite Holt v. Holt, L. R. 1 P. & D. 610; Forrest v. Forrest, 16 N. Y. Super. Ct. 661, 671;Flood v. Flood, 5 Bush (Ky.) 169;Cross v. Cross, 63 N. H. 444;Stanfield v. Stanfield, 22 Okl. 574, 98 Pac. 334;Cole v. Cole, 142 Ill. 19, 31 N. E. 109, 19 L. R. A. 811, 34 Am. St. Rep. 56;Cariens v. Cariens, 50 W. Va. 113, 40 S. E. 335, 55 L. R. A. 930.

In Holt v. Holt, L. R. 1 P. & D. 610, it was held that the divorced wife was not entitled to alimony while she was living with another man as his wife and supported by him. The court said: “The husband ought not to be called on to pay alimony for the time during which the wife had other means of support. It is immaterial, as far as this question is concerned, whether the respondent was living in adultery. The ground upon which the court proceeds is that she was living in such a manner that she had means of support independent of her husband.”

The case of Forrest v. Forrest, 16 N. Y. Super. Ct. 661, decided in the superior court of New York in 1859 by four justices, sustains the point to which it is cited, though it should be noted that Poerrepont, J., dissented from that part of the opinion which held that in fixing the amount of alimony the immorality and bad conduct of the wife after the decree of divorce is pronounced and before the amount of permanent alimony is fixed cannot be considered by the court.

In Flood v. Flood, 5 Bush (Ky.) 169, a perpetual divorce from bed and board was granted to the parties, and by mutual arrangement a certain amount of property was conveyed by the husband to trustees to hold the same in trust for the use of the wife and the two children of the parties. Afterwards the wife assumed to marry one Armitage and lived with him as his wife, whereupon the first husband secured an absolute divorce from the bonds of matrimony, and subsequently brought an action to secure a reconveyance to him of the property conveyed to the trustees. The court refused to compel a reconveyance, saying: “No doubt the Louisville chancery court properly adjudged a dissolution of the matrital relations, and restored to him the custody of his children, and adjudged to him all property which she had received from him by reason of the marriage, or in consideration thereof; but it did not, nor could, adjudge to him the rights of property which had been conveyed and secured to her use for life, as a support...