Opinion
May 7, 1951 —
June 15, 1951.
APPEAL from an order of the county court of Chippewa county: ORRIN H. LARRABEE, Judge. Affirmed.
For the appellant there was a brief by William A. Cameron and Howard W. Cameron, both of Rice Lake, and oral argument by Howard W. Cameron.
Darrell O. Hibbard and Frank E. Betz, both of Eau Claire, for the respondent.
On September 15, 1950, the county court entered an order denying defendant's motion to vacate and set aside that portion of a divorce judgment entered September 16, 1949, allowing a property settlement to the defendant. From such order defendant appeals.
The plaintiff and defendant were married in 1936. Plaintiff had been previously married and was the father of two children. No issue was born of this marriage.
On August 13, 1949, plaintiff caused to be served upon the defendant a summons and complaint in divorce. Defendant answered and counterclaimed for a divorce. On September 15, 1949, the parties entered into a stipulation for property settlement in lieu of alimony, and further stipulated to change the venue from the circuit court for Eau Claire county to the county court of Chippewa county. On September 16, 1949, defendant offered proof in support of the allegations of cruel and inhuman treatment contained in her counterclaim and was awarded a judgment of divorce and the property which she had stipulated to accept in lieu of alimony. At the time of the trial the court asked defendant if she was satisfied with the terms of the stipulation. When defendant expressed some doubt as to whether she was receiving enough the court explained to her that if she was not satisfied the court would have to go into the matter and determine what amount should properly be awarded. Defendant expressed satisfaction and judgment was entered.
On March 30, 1950, the plaintiff died a suicide.
In September, 1950, defendant obtained an order to show cause why the judgment of divorce should not be reopened in so far as it affected the property rights of the parties. This matter was heard upon the affidavits of the defendant and others to support her contention that the settlement was the result of surprise, inadvertence, and excusable neglect, and upon counteraffidavits offered by attorneys for the executrix of the will of the plaintiff.
The trial court concluded that there was no showing of mistake or excusable neglect from which defendant should be relieved.
The gist of defendant's affidavit was that between June and September 17th she was highly nervous, emotionally upset, and had taken excessive doses of barbiturates. The affidavit of her attending physician disclosed that upon two occasions, in response to emergency calls, he had found her in a semiconscious condition. This was while the parties were living together. The husband used alcohol to excess. The doctor sent her to the hospital and she was in and out of the hospital thereafter, being finally discharged from the hospital September 17, 1949. She left the hospital on September 15th and again on the 16th with her physician's consent, to take care of important business. The doctor did not know until later that it was for the purpose of getting a divorce.
Counsel for appellant concedes that the application to open the divorce judgment and allow her additional property is addressed to the discretion of the trial court. She contends, however, that denial of her application amounted to an abuse of discretion and should be reversed.
The trial court found that there is a "total failure of proof of any mistake, inadvertence, surprise, or excusable neglect on the part of the defendant." This finding is completely supported by the record.
Some time after the marriage of these parties the husband engaged in the real-estate business assisted by his wife. Together they accumulated some property and at the time of the divorce divided it on the basis of the value agreed upon in the stipulation. Defendant was familiar with all of the properties and had as much knowledge of their values in 1949 as she had in 1950, as evidenced by statements made to the court at the time of entry of the judgment that she thought the property had greater value than allowed by the husband in negotiating the settlement. Notwithstanding this knowledge she elected to stand upon the stipulation. One property obtained by her in the divorce and evaluated at $4,000 was sold by her thereafter for $4,200.
So far as the record discloses, her health after September 17, 1949, improved and she was able to return to work in February of 1950.
She made no complaint at any time prior to her husband's death that she had not been treated fairly in the property settlement, nor indeed until nearly five months thereafter. The trial court might well conclude that if the husband had lived no complaint would have been made and that this motion was prompted by a desire to get additional property from his estate.
Upon appeal counsel for defendant is unable to point to any mistake from which she should be relieved, but urges that she was victimized by an attorney who shortly before the divorce represented both her and her husband and was instrumental in obtaining the attorneys who represented each in the divorce action. Counsel argues that this constituted "almost a fraud upon the defendant as well as the court."
While these charges were contained vaguely in defendant's petition of September, 1950, they were in support of her motion to be relieved of mistake. A charge of fraud or conspiracy to defraud cannot be insinuated. It must be pleaded directly and proved by proper weight of evidence. Without affording the plaintiff's attorneys an opportunity to defend against a charge of fraud properly laid, defendant does not contend that fraud is proved, but only that the record establishes "almost a fraud." This does not in any way meet the requirements of proof in fraud cases.
"In civil actions, where fraud, crime, criminal conduct, or conspiracy is alleged, the burden rests upon him who so charges, to establish the proof of such allegations by clear and satisfactory evidence. Max L. Bloom Co. v. United States C. Co. 191 Wis. 524, 210 N.W. 689; Muska v. Apel, 203 Wis. 389, 232 N.W. 593; or by the clear and satisfactory evidence to a reasonable certainty, Lange v. Heckel, 171 Wis. 59, 175 N.W. 788; or by clear, satisfactory, and convincing evidence, Parker v. Hull, 71 Wis. 368, 37 N.W. 351; Milonczyk v. Farmers Mut. Fire Ins. Co. 200 Wis. 255, 227 N.W. 873." Estate of Hatten (1940), 233 Wis. 199, 208, 288 N.W. 278.
The record discloses no abuse of discretion on the part of the trial court in denying the defendant's application to reopen the judgment.
By the Court. — Order affirmed.