Helden v. Helden , 7 Wis. 296 ( 1859 )

By the Court,

Smith, J.

Although it seems to be conceded by counsel that the motion filed by the petitioner’s counsel on 9th of July, 1857, in the original suit, for leave to take testimony as to the fact of adultery of the wife, was properly denied, yet we are of a different opinion. The alleged ground for overruling the motion was, that there was no allegation of adultery in the original bill. It must be remembered that the judgment of the court as to the right of the petitioner to a divorce, had been virtually awarded, and the cause had been referred to take testimony as to the property of the petitioner and other matters, to enable the court to make the proper order in regard to alimony and the custody, education and support of the child. These were matters on which it was necessary for the court to be informed irrespective of any charges or allegations of the bill or answer. The decree of divorce was permanent and unalterable, but the order or orders in regard to alimony were contingent, and subject to modification from time to time. The questions were, which, if either of the parents, should have the custody of the child,, regarding the welfare of the child only, and what were the claims of the respondent upon the petitioner in view of all the circumstances of the case. A woman who has been guilty of adultery is unfit to have the care and education of children, and more especially of female children, nor is she entitled to support out of the husband’s estate. And where these matters of alimony and the custody of the child were the subject of consideration, it was competent for the court, and its duty to inquire into all the facts and circumstances, touching the character, temper, and conduct of the parties, and unre-sticted by the issue formed by the pleadings. We are therefore of the opinion that the motion of the 9th July, 1857, should have been sustained and the evidence taken. This is an error apparent upon the record.

But passing this by, the 28th section of chapter 79 of the Revised Statutes, wisely renders all orders for alimony and the custody of children subject at all times to the revision, alteration and modification of the court. It reads as follows : “ After a decree for alimony or other allowance, for the wife and children, or either of them, and also a decree for the appointment of trustees to receive and hold any property, for the use of the wife and children, as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree, respecting the amount of such alimony or allowance, and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might have made in the original suit.”

Here then is the most ample power given to the court, over such decrees, and if the court could, in the original suit have heard testimony touching the character and conduct of the wife, in view of the amount of alimony to be awarded, and the custody of the female child, the same may be done now on the petition of either of the parties.

It is said that if the fact of adultery had been set out in the original petition as a cause of divorce, the respondent might ' have avoided its effect by recrimination or condonation. This is very true, and she might have defeated the action so far as that cause was concerned. But the decree of divorce was not granted, upon that, but upon other grounds. But no amount of recrimination or condonation of adulteries can render an adulteress a fit person to have the custody and education of a female child. What effect recrimination or condonation might have upon the award of alimony, need not now be determined. No reason is now perceived why she might not be permitted to prove either of these matters, and it will then be time for the court to decide upon their effect upoh the question of alimony.

It is quite clear that the fact of adultery (if it existed) did not come to the knowledge of the petitioner, until after publication had passed in the original suit, and that he availed himself of it at the earliest opportunity, by motion of the 9th July, 1857. He could not have set it up in his original bill, and we do not perceive that he is chargeable with any unfairness or delay.

We are not advised of the merits of the original suit, any farther than the court granted a decree of divorce, on account of the proofs, sustaining the charges in the original bill, which we presumed was properly rendered. No matter for what cause the divorce was granted, the whole field of inquiry is open in regard to the custody and support of children and alimony to the wife.

It is said that the granting of this petition will be a great hardship upon the respondent Not so if she is guilty. It may be that the court has the same power to allow suit money to defend this charge, as upon the original petition. That question is not before us, and we will not now attempt to decide it It is in the power of the court to protect the parties, and the section of the statute above quoted,gives ample scope for the exercise of its authority.

The order of the court below is reversed and the cause remanded for further proceedings.