Weichers v. Weichers

• Decision Date: 07 November 1928
• Citation: 221 N.W. 733,197 Wis. 159
• Parties: WEICHERS v. WEICHERS.
• Court: Wisconsin Supreme Court

197 Wis. 159

221 N.W. 733

WEICHERS

v.WEICHERS.

Supreme Court of Wisconsin.

Nov. 7, 1928.

Appeal from a judgment of the County Court of Waukesha County; Newton W. Evans, Acting County Judge. Reversed.

Action for divorce by Mabel Weichers against William Weichers. Judgment for plaintiff, and defendant appeals. Reversed and remanded.--[By Editorial Staff.]

The wife commenced this action January 7, 1928, for divorce for cruel and inhuman treatment. Trial was had March 8, 1928.

The complaint alleged the marriage of the parties October 30, 1922; the residence in Wisconsin for more than two years preceding the commencement of the action; that no other action for divorce has been commenced or is pending; the birth of a daughter. The substance of the allegations constituting the claim of cruel and inhuman treatment is the calling of the plaintiff vile and indecent names; repeated assaults; that defendant has an ungovernable temper and becomes enraged and abuses and insults her; his telling her that she could leave him if she did not like his treatment; that in November, 1927, he struck her in the face and cursed and swore at her; that her health has become impaired; that she feels that it is no longer safe for her to attempt to live with him; and that if she were to continue to live with him she would become a nervous wreck.

Defendant's answer denied the plaintiff's allegations as to cruel and inhuman treatment. She testified that on three several occasions she left him, twice over night only, and another time for two weeks, but the specific dates are not given.

The court found the facts to be substantially in accord with the allegations of the complaint, and awarded the plaintiff a judgment of divorce, the custody of the child, and certain of the household property, and directed the payment of $8 a week for the support and maintenance of the child.

Defendant appeals.James Murray and V. J. Collins, both of Fond du Lac, for appellant.

G. Holmes Daubner, of Waukesha, for respondent.

ESCHWEILER, J.

The plaintiff admitted conduct on her part with others which would justify complaint or criticism by her husband. She testified that defendant struck her with his fist on the chin November 11, 1927. It appears, however, that she continued to live with him at North Fond du Lac until about December 25th following, when she left, taking their infant with her to her parents at Waukesha. Shortly thereafter defendant called at her parents' home and demanded that she return to his home, and, according to her version of what there took place, she told him that she could not return until the servant working for her mother, and whose work plaintiff was then doing, would return, and that the time of such return was unknown. Nothing further seems to have been done in that regard by either party, and this action was commenced within two weeks thereafter.

The circuit court rules of this state relating to actions for divorce, by Rule 28, § 3, makes provision as to the proof of residence, and also that no judgment or divorce shall be granted on the testimony of the plaintiff therein unless corroborated as to all the other material allegations of the complaint by the testimony of one or more witnesses, except in cases of cruel and inhuman treatment, alleged to have taken place when no witness was present competent to testify to the same. There was no compliance in pleading or proof with this rule, but the objection on that...