Opinion
No. 693 (1974).
Submitted on briefs December 2, 1975 —
Decided February 10, 1976.
APPEAL from a judgment of the county court of Outagamie county: R. THOMAS CANE, County Judge. Affirmed.
For the appellant there was a brief by Edward R. Bollenbeck of Appleton.
For the respondent there was a brief by Herrling, Hamilton Swain of Appleton.
Divorce. Defendant wife appeals from a judgment granted to plaintiff husband on grounds of voluntary separation for a period of one year under sec. 247.07(6), stats. The parties were married in 1948. At the time of the divorce, the plaintiff was 54 years old and the defendant was 59. There were no minor children. Although unemployed at the time the divorce was granted, the defendant had taught German and held a law degree from the University of Vienna. The plaintiff was employed at the Institute of Paper Chemistry in Appleton. His salary was $19,540 per year.
On November 2, 1963, the plaintiff moved out of the home of the parties and into his own apartment. In 1971, he commenced an action for divorce on grounds of voluntary separation. Divorce was denied on the ground that the separation was not mutually voluntary. Next, he commenced an action for divorce on July 28, 1972, alleging cruel and inhuman treatment. This divorce was also denied on the ground that he had not carried his burden of proof.
On January 23, 1973, plaintiff wrote a letter to the defendant telling her he was canceling utility services to the home and her credit cards and charge accounts. In the letter he also demanded that she assume responsibility for the real estate taxes and insurance on the home. Her response to the letter was to initiate an action for separate maintenance on February 2, 1973. As a result of her petition, a temporary order was entered requiring the plaintiff to pay $250 on a standard legal blank form, alleged in part as follows:
"That petitioner fears her legal rights will be jeopardized if the defendant is allowed to live in the same household as the petitioner . . ."
On March 14, 1973, the plaintiff commenced the instant divorce action. At the trial he testified:
"I believe I have testified at one of those trial hearings that she has told me repeatedly to get out of the house. I have also testified that she has told me in person, and this is as nearly as I can remember the quote, `You can have your lovenest as long as you keep up the payments.'"
Defendant testified that she still loved the plaintiff, still wanted him back and still hoped that he would return home one day.
After the conclusion of the testimony, the trial court granted a divorce to the plaintiff in a bench decision:
"THE COURT: Gentlemen, first of all, the Court is satisfied that this is certainly a dead marriage and continuing the marriage is absolutely ridiculous. However, I am also satisfied that by the testimony presented that since the last divorce hearing, by virtue of the facts that occurred, that this did become a voluntary separation. The parties continue to live separately. I am also satisfied, based on Mr. Brown's testimony, that the defendant did say words to the effect that he would be allowed to live with this woman as long as he made his support payments. In other words, she was condoning this separate living.
"I am also satisfied that by her starting the separate maintenance action rather than a criminal action for nonsupport, that she wanted — this is one of the factors the Court is considering — to live separately, that she was accepting this type of life.
"The Court also feels that twelve years of separation became a mutual separation since the last divorce hearing.
"Therefore, the Court is going to grant an absolute divorce to the plaintiff, Curtis Brown, against the defendant, Gertrude Brown."
The defendant was awarded the home of the parties, having an estimated value of $20,000 and a savings account of $496. The plaintiff was ordered to pay $150 attorney's fees incurred by the defendant in the separate maintenance action. He was also directed to pay alimony of $200 per month until May 19, 1978, the date when defendant would become 62 years old and eligible for social security.
The central issue raised is whether the trial court erred in finding that the defendant had consented to the separation of parties created by the plaintiff's desertion, thereby making the separation voluntary within the meaning of sec. 247.07(6), Stats. Other issues raised are whether the defendant should have been awarded allowance for her attorney's fees in the divorce proceedings and whether the alimony award of $200 per month until May 19, 1978, was too low.
The trial court gave three grounds for finding that the defendant had consented to the separation of the parties. The first was the defendant's statement to the plaintiff that he could live with another woman as long as he made support payments. The second was that the defendant commenced a civil action for separate maintenance rather than a criminal action for nonsupport when the plaintiff wrote the letter of January 23, 1973, refusing to make further voluntary support payments. The third reason was the separation had lasted for twelve years. None of these reasons are sufficient in themselves for finding a consent on the part of the defendant. Plaintiff's testimony with respect to the defendant's statement was a recollection of testimony he had given in prior divorce proceedings which had failed. The total length of separation does not show when the separation became voluntary. The petition for separate maintenance, including as it does a representation that her legal rights would be jeopardized if her husband is allowed to live with her, lends support to an inference that she had consented to the separation at the time that the separate maintenance suit was instituted. However, the suit for separate maintenance was necessitated by her husband's actions, and may not be relied upon to establish a voluntary consent to the separation. Rooney v. Rooney (1925), 186 Wis. 49, 202 N.W. 143.
Although the grounds relied on by the trial court are not sufficient, taken singly, to support the finding of consent, we hold that they are sufficient, cumulatively, to support a finding that the defendant consented to separation of the parties by the filing of her suit for separate maintenance. Therefore, the finding of the trial court that the parties had voluntarily separated for a period of more than one year prior to the commencement of the instant action is not against the great weight and clear preponderance of the evidence.
The familiar standard for reviewing an alimony award and allowance or refusal of attorney's fees is whether the trial court abused its discretion. Virtually all the assets of the parties in this case were awarded to the defendant. The trial court noted in fixing the alimony award that the plaintiff had, in effect, been paying alimony for twelve years. Defendant has failed to demonstrate an abuse of discretion in the alimony award and the refusal to order a contribution by the plaintiff towards her attorney's fees.
By the Court. — Judgment affirmed.