Opinion
No. 5.
Argued December 1, 1970. —
Decided January 5, 1971.
APPEAL from a judgment and an order of the circuit court for Milwaukee county: WILLIAM R. MOSER, Circuit Judge. Reversed, with directions.
For the appellant there was a brief by Henry C. Friend and George E. Kunde, both of Milwaukee, and oral argument by Mr. Kunde.
No brief or appearance for the respondent.
This is a divorce action commenced by the plaintiff-husband by service of a summons by publication after the sheriff was unable to serve the defendant-wife at her last known address. The complaint sought, and after default hearing on March 25, 1969, the court granted to the husband a judgment of absolute divorce upon the grounds of cruel and inhuman treatment. The judgment provided the defendant-wife was not entitled to alimony and divested her of any right, title or interest in the plaintiff's railroad retirement fund and social security benefits.
The divorce was orally granted on March 25, 1969, and written findings of fact, conclusions of law and judgment were entered on June 27, 1969.
On January 20, 1970, the defendant-wife moved to vacate the judgment for want of personal jurisdiction because of the alleged insufficiency of proof to permit substituted service, and because of an alleged insufficient proof to grant a divorce upon the grounds of cruel and inhuman treatment. In the alternative, the defendant moved to vacate those portions of the judgment which denied her alimony and divested her of any interest in the plaintiff's railroad retirement fund and social security benefits. On February 11, 1970, the trial court denied the motion to vacate the judgment and dismiss the action but granted the motion to delete those parts of the judgment dealing with alimony and defendant's interest in plaintiff's pensions.
The defendant appeals from the judgment and from the part of the order denying her motion to vacate the judgment and dismiss the action.
There has been no brief filed, no appearance nor argument in behalf of the plaintiff, Robert E. Quandahl.
Other than a letter to the clerk from the attorney who represented the plaintiff, Robert E. Quandahl.
It appears from the record herein that at the time of the divorce the plaintiff had no property, either real or personal, other than his personal effects and his pension rights; that he was severely afflicted with Parkinson's disease; that he was seventy-two years of age and his wife was sixty-two years old; and that there were no children.
Shortly after the hearing on March 25, 1969, the plaintiff moved to Mason City, Iowa, and lived with a brother. On May 20, 1969, he died and his property and funds available were hardly sufficient to pay the expenses of his last illness and the funeral bill.
The defendant-appellant has moved that this court reverse "as of course" under its discretionary power set forth in sec. (Rule) 251.57, Stats., which provides as follows:
"When a cause is submitted, or presented by counsel for appellant or plaintiff in error, but not by the opposing party, the judgment or order appealed from may be reversed as of course, without argument."
This court has declined to exercise its discretionary power to reverse pursuant to the rule, and gone on to consider the merits of an appeal from a judgment of divorce on several occasions. Gauer v. Gauer (1967), 34 Wis.2d 451, 149 N.W.2d 533; Onderdonk v. Onderdonk (1958), 3 Wis.2d 279, 88 N.W.2d 323. The court has noted that the principal reason for its doing so is the strong public interest in actions affecting marriage and the custody and support of minor children.
However, none of those concerns are present in the instant case. One of the parties, is deceased, there are no children whose interests must be considered, and there is no question of injustice to any third parties since there is no property left in the respondent's estate to which they might otherwise be entitled.
We deem the issues herein should not be decided on the merits without an appearance and brief in behalf of the respondent. Therefore, in the exercise of our discretion, we reverse under sec. (Rule) 251.57, Stats.
By the Court. — Judgment and order reversed with directions to vacate the judgment and dismiss the complaint.