Thomas v. Thomas

Alimony. (1) Power of court to revise its judgment for alimony. (2) When former ivife cannot testify on her application for stick revisad. (3) Hoto far her past services in maintenance of child to be considered. (í) Boiv value of U. S. bonds to be estimated. (5) Case stated. Principles of permanent division of property. 1. The circuit court cannot divest itself of authority to revise its own judgment for alimony proper; and the allowance to the wife of a gross sum in an action for divorce must be regarded as alimony proper, unless expressly stated m the judgment to be a division of the property between the parties under sec. 29, ch. Ill, R. S. 2. A divorced wife who asks a revision of the judgment as to alimony, is incompetent to testify on her own behalf, at the hearing, if the former husband is insane (ch. 295 of 1874); but the judgment will not be reversed for the admission of her testimony, when the material averments of the petition are satisfactorily proven by other evidence. 3. In general, after a divorce, the primary duty of maintaining the former wife and any child of the marriage, still remains with the former husband; and in revising a judgment for alimony, the court may properly consider tire value of the wife’s past services and disbursements in the care and maintenance of a child of the parties, whether or not an allowance ought to be made for them eo nomine. 4. In estimating the estate of a divorced husband, United States bonds included therein should be estimated at their actual value. 5. The defendant is insane; the value of Iris estate is $16,000; the divorce was obtained about fifteen years ago; and the plaintiff has now, and has had during the whole period, the care and charge of a daughter, the only child of the marriage. -Held, that there should be a permanent division of property between the parties; and that plaintiff should be allowed, as her proportion thereof, $4,500, to be paid as the circuit court shall direct.

APPEAL from the Circuit Court for Rctoine County. This is an appeal from a judgment revising a former judgment of divorce a vinculo in the action, in respect to alimony. The parties intermarried in January, 1859, and the defendant deserted the plaintiff in March following. In April, 1860, the plaintiff commenced this action, and she obtained a judgment of divorce in 1861. Prior to tire judgment, the parties, by their respective attorneys, stipulated, among other things, that there should .he no judgment for an allowance of alimony, hut that the defendant should pay the plaintiff $300 in lieu of alimony. In the mean time a daughter had been born to the parties, who is still living; but there was no stipulation as to her custody or maintenance. The judgment provided that the defendant pay the plaintiff $300 in full for alimony, and that the latter should have the care and custody of the daughter. The $300 was paid to the plaintiff. In 1875, the plaintiff presented her petition to the circuit court for a revision of the judgment, to the end that further alimony might be awarded to her, together with an allowance for the past support and maintenance of the daughter. It is alleged in the petition that the defendant is insane and confined in the state hospital for the insane in Dane county, and that William W. Yaughn, Esq., has been duly appointed guardian of his person and estate by the cotjnty judge of Racine county. Mr. Yaughn appeared on behalf of the defendant, and resisted the petition. On the hearing, the plaintiff was permitted, against the objection of the guardian, to testify as a witness in hér own behalf. The court found, 1. That the property of the defendant is worth the sum of $18,000; 2. That the plaintiff has no property of her own except a small amount of household furniture of trifling value; and 3. That the parties have one daughter, who has been supported by the plaintiff from childhood. The court thereupon ordered and adjudged “that the defendant pay I the,, plaintiff, or her attorney for her use, the sum of $5,000, | and the further sum of $500 for the support of the daughter of the parties.” This appeal is on behalf of the defendant, from such order or revised judgment. Errors are assigned as follows: “ 1. The court below erred in entertaining said petition, and in rendering any further judgment in said action on the subject of alimony, for the reason'that the original decree of divorce entered in the action is conclusive and final on that subject. “ 2. The court erred in admitting the plaintiff to he sworn as a witness in her own behalf, for the reason that the defendant was insane. “ 3. The court erred in admitting testimony relating to the value of the plaintiff’s past services and disbursements in supporting her owTn child. “ 4. The court erred in finding that the defendant’s property was worth $18,000. “ 5. The court erred in assigning to the plaintiff alimony to the amount of $5,000, and $500 for the support of the daughter, because, under the circumstances of this case, those sums are manifestly exorbitant and unjust.” They contended, 1. That the judgment of divorce entered in pursuance of the stipulation then made in respect to alimony, unappealed from, is a bar to this proceeding. 2. That the court erred in permitting plaintiff to be a witness on her own behalf, the defendant being insane. 3. That the court erred in admitting testimony of the value of plaintiff’s past services and disbursements in supporting her own child. Pawling v. Bird’s Ex’rs, 13 Johns., 192; Finch v. Finch, 22 Conn., 411; Burritt v. Burritt, 29 Barb., 124, 131; 2 Bishop on M. & D. (4th ed.), § 557. 4. That the court erred in finding the defendant’s property to be worth $18,000, and especially in including the premium upon his United States bonds, defendant being incapable of managing his own property, the guardian having no authority to convert the bonds into money without the express direction of the court, the income derived from them being only six per cent, upon their par value, and it being impossible to realize more than that value with the accrued interest, if the bonds should at any time be called in by the government. 5. That the allowance made plaintiff in this case was exorbitant. They contended, 1. That the circuit court had full authority to revise and alter the original judgment, or to make a new judgment in respect to alimony, and that the whole estate and income of the husband, actually possessed and enjoyed by him at the time of such subsequent judgment, were subject to it. Campbell v. Campbell, 37 Wis., 206. 2. That the facts testified to by the plaintiff were fully established by other evidence, and therefore the erroneous admission of her testimony would have been no ground for reversal, even if the case had been one of a trial by jury, and is still less so where the decision is by the court. Beck v. Cole, 16 Wis., 100; Spencer v. R. R. Co., 17 id., 487; Remlinger v. Town Treasurer, 22 id., 426-8, 441; Roach v. Menomonee, 24 id., 529-30; 25 id., 36; 26 id., 517; 27 id., 108; 29 id., 209, 221; 31 id., 172; Crary v. Sprague, 12 Wend., 46, 47; Ellis v. Short, 21 Pick., 142; Edmondson v. Machell, 2 Term, 4, 5. 3L That the division of the property in this case was an equitable one under all the circumstances in evidence. Williams v. Williams, 36 Wis., 362; Donovan v. Donovan, 20 id., 586; Cole v. Cole, 27 id., 531; Moul v. Moul, 30 id., 203; Campbell v. Campbell, 37 id., 223-4; Hopkins v. Hopkins, 39 id., 171-2; Burr v. Burr, 7 Hill, 207; 2 Bishop on M. & D., § 462.