Opinion
April 13, 1948. —
May 11, 1948.
APPEAL from a judgment of the circuit court for Milwaukee county: CHARLES L. AARONS, Circuit Judge. Affirmed.
Alvin Juedes of Milwaukee, for the appellant.
Clyde M. Paust of Milwaukee, for the respondent.
The action was one for divorce commenced by the respondent wife in May, 1946. The appellant interposed an answer and counterclaim. After hearing the evidence of both parties the court ordered judgment for divorce from the bonds of matrimony upon the ground of nonsupport and allowed respondent $50 per month for the support of a minor child and $35 per month alimony.
The appellant challenges the judgment for the reason that two previous actions started by this respondent against the appellant for divorce upon the grounds of cruel and inhuman treatment had been dismissed, one after trial. At the conclusion of the trial of the first action Judge SHAUGHNESSY, who heard the testimony, dismissed the complaint because of lack of sufficient grounds. In that first action, which was commenced in 1945, there had been a preliminary hearing on an order to show cause and upon that hearing, at the request of the respondent, the judge had directed the appellant to remove from the home of the parties and at the same time refused to enter an order for temporary alimony. The second action was dismissed because it was brought while the first was still pending. In the first action Judge SHAUGHNESSY entered an order of dismissal on May 2, 1945.
Since the original order requiring the husband to leave the home of the parties there has been no attempt on the part of either husband or wife to resume the marital relationship or to continue to live together. The appellant concedes that from May 2, 1945, to the commencement of the third action in May, 1946, and presumably to the time of the trial, the appellant contributed nothing to the support of the respondent, but contends that under the circumstances this cannot constitute nonsupport for the reason that on two separate motions instituted to compel him to pay, and also upon the trial of the first action, Judge SHAUGHNESSY refused to order alimony.
We are of the opinion that the contention of the appellant is untenable. As pointed out by the trial court, the only reason that Judge SHAUGHNESSY refused to grant respondent an order for the payment of alimony at the time that he denied her application upon the grounds of cruel and inhuman treatment was that, in his opinion, the law did not permit such an order to be imposed when the divorce was being denied and the action ordered dismissed. Judge SHAUGHNESSY, went further and indicated that he would have entered such an order if the legislature had granted such authority to trial courts. As pointed out by the trial court, the obligation to support a wife arises from duties imposed by law and continues unless there is a specific finding that the wife, because of misconduct, has forfeited her right to support. There was no determination at any time, either upon the hearings of the orders to show cause or in the trial of the first action, that the wife had forfeited such right, and the husband cannot escape his obligation simply because the court had not specifically ordered him to perform his legal duty.
Appellant contends that after the dismissal of the first case it became the duty of the wife to invite the appellant home to live with her because he had previously been ordered to remove from the home. The trial court, who saw the parties and heard the testimony, concluded that the breach between them was complete from the time of the separation and that there was an attitude of hostility between them from that time down to the entry of the final judgment. Reconciliation in most instances must be mutually desired, and under the circumstances we believe that there was no obligation resting upon the respondent to solicit the husband, and apparently no genuine desire on the part of either of them for reconciliation at any time, as is evidenced by the fact that there is both a complaint and a counterclaim for divorce in the instant case.
This appeal also challenges the entire judgment. We have examined the record and are of the opinion that all of the provisions of the judgment are entirely reasonable and proper.
By the Court. — Judgment affirmed.
FRITZ, J., dissents.