Williams v. Williams , 29 Wis. 517 ( 1872 )

LyoN, J.

I. It is objected by counsel for tbe plaintiff that the order of May 15th, 1871, was made by the judge at chambers, and for that reason is not appealable to tins court until tlie same sliall have been reviewed bj tlie circuit court. But in view of the circumstances under which it was made, we regard it as substantially an order of the circuit court, from which, an appeal lies to this court. Those circumstances are set out in the foregoing statement of facts, and need not be repeated here.

II. Neither do we perceive any force in the objection that the minutes of the judge, which it is alleged were used on the hearing of the motion for additional suit money, are not returned and printed as a part of the case on the second appeal. The motion papers show that the court found the issues for the plaintiff. They also show the time consumed in the trial and the expenses thereof. In fixing the amount of the allowance for the expense of the litigation, the material facts to know are, not what the testimony was, but what it proved; also, how much the litigation has necessarily cost the plaintiff, and what are the pecuniary circumstances of the parties. The findings of the circuit court upon the issues show what the testimony proved; and the other facts necessary to be known are stated in the motion papers. Had a bill of exceptions containing the minutes of the judge, duly settled and signed by him, been read on the hearing of the motion, and had the same been returned to this court and printed in the case, counsel would not have been permitted to read it on the argument. And this for the reason just indicated, that aknowlege of the contents of such bill of exceptions would not aid us in the least in the decision of the appeal.

It is to be remembered, further, that Judge Wetherby, in his affidavit of February 13th, 1872, deposes that the minutes of the judge were not in any manner referred to or used upon the hearing of the motion.

III. The objection urged by counsel for the defendant, that after the court had adjudged a divorce it had no power to make the orders appealed from, is also untenable. There can be no valid grounds of objection to tbe course pursued in tbis case, of disposing of tbe main issue first, and, if that be found for tbe plaintiff, adjudicating tbe question of permanent alimony after-wards. And, until such adjudication, it is equally clear that tbe court may order tbe defendant to pay temporary alimony, or suit money, which is a species of temporary alimony. These results necessarily flow from tbe plenary power which tbe court has over tbe whole subject of alimony and allowances, as well after as before judgment. R. S., cb. Ill, sec. 28.

These rules of practice seem too plain to require tbe citation of authorities, or any further discussion to sustain them.

IY. We now proceed to consider tbe merits of tbe orders appealed from. It is indisputable that tbe circuit court, in tbe exercise of a sound judicial discretion, has power in divorce cases to make allowances to tbe wife, to be paid by tbe bus-band for tbe support, during tbe litigation, of herself and such of tbe children of tbe parties as may be committed to her care and custody, and for her expenses in prosecuting or defending tbe action. Such discretion is to be exercised with reference to all of tbe facts and circumstances of tbe case which will affect the amount of such allowances, and with due regard to certain legal rules which are almost universally recognized and applied by tbe courts in such cases. When tbe circuit court has fixed tbe amount of such allowances, and ordered tbe husband to pay tbe same, tbis court will not interfere therewith, unless it is apparent that some of tbe conditions which should have been considered by tbe court below have been overlooked or disregarded, to tbe manifest injury either of tbe husband or tbe wife.

In awarding temporary alimony, a primary, and indeed a controlling consideration is tbe extent of tbe husband’s income, and bis ability to pay tbe sum so awarded. 2 Bishop on Marriage and Divorce, § 455. Tbis consideration derives increased importance from tbe fact that tbe husband is liable, in tbis state, to be imprisoned for non-payment of temporary alimony, when the same has been awarded to the wife. In re Gill, 20 Wis., 686. "When the income of the husband is ascertained, if the wife (as in this case) has no income, the ordinary rule of temporary alimony is to allow her about one-fifth of the husband’s income. This is regarded as a fair medium, although the proportion may be varied somewhat to meet the exigencies of particular cases. 2 Bishop on Mar. and Div., § 460. This rule has reference only to the allowance for the support of the wife, and does not include the support of children or the expenses of the action. If the husband be of sufficient ability, the allowance should be such as to enable the wife to live comfortably; and if his estate is large, she. should be furnished with means to live in something like the style and manner to which she has been accustomed. This is more especially the rule in cases where, as in this case, it appears that the health of the wife is impaired, and the breach of .the marriage contract by the husband has been judicially determined. Yet we apprehend that the oases are few in which the circuit courts will be justified in allowing a larger proportion of the husband’s income for the support of the wife, pendente lite, than that above indicated. Certainly, in a large majority of the reported cases which have come under our observation, and in which temporary alimony has been allowed, that proportion has been recognized or acted upon as the correct rule for determining the amount of such allowance.

In the view of the case above suggested, it becomes necessary to ascertain, as nearly as may be, the pecuniary resources and income of the defendant. Of these we have no very satisfactory statement. The plaintiff gives the descriptions of a large number of lots in the city of Hudson, and of two forty-acre lots in the north part of this state, of all which, together with valuable real estate in Minnesota and Iowa (not described), she avers that the defendant is the owner. She further avers that such real estate is worth $30,000, and that the defendant owns personal estate worth $10,000, and she estimates his annual income at $5,000. On tbe other band, tbe- defendant denies owning any real estate except village lots and a, store and dwelling bouse in Hudson, and forty acres of wild land outside of that city; and be deposes that tbe whole value of bis entire property, both real and personal, does not exceed of $20,000, and that bis income from all sources, over and above bis expenses, is not one dollar. The foregoing is all tbe information which the record gives us in respect to tbe defendant’s property.

We construe tbe evidence liberally for tbe plaintiff when we find that tbe defendant is worth $30,000; and, in view of tbe general experience of land owners, merchants and business men of this state, for tbe last three years, we estimate very liberally in her favor when we estimate tbe net annual income from tbe defendant’s property at six per cent, of its value. On this basis tbe defendant has a. net annual income of $1,800. Applying tbe rule above stated, we do not think that tbe plaintiff should be allowed over $400 a year for her individual support; and, were it not that the defendant has been adjudged guilty of tbe charges against him contained in tbe complaint, we should be constrained to fix tbe allowance at a less. sum. To this sum there should be added $500 a year for tbe support of tbe children, so far as they- need support from their mother. This gives tbe plaintiff $900 a yeai-, or $75 a month for tbe support of herself, and tbe partial or entire support of her daughter, who is seventeen, and her son, who is fourteen years of age. It is a sum as large- as is earned by each of a large majority of good mechanics and skilled laborers, of teachers, and perhaps it would not be far wrong to add clergymen, in this state; and yet upon that income, and even less, thousands of these support families of three and more persons comfortably,, and ■ give to their children a fair education.

We are of the opinion that the plaintiff can support herself, and, so far as is necessary, her children, respectably with $900 per annum. If she cannot do so, it is her misfortune that her late husband is not more wealthy than he now appears to be.

Y. The views submitted under the last head relate mainly to the order giving the plaintiff an allowance for herself and the children. We will now examine the order allowing suit money.

The court has power, in an action for a divorce, “ in its discretion, to require the husband to pay any sums necessary to enable the wife to carry on or defend the action during its pen-dency.” R. S., ch. Ill, sec. 16. In this case, it will be assumed that the defendant is able to pay all necessary sums to enable the plaintiff to carry on the action; and the only question is, what sums are necessary for that purpose?

The complaint charges that the defendant, during the cover-ture, was habitually unkind and cruel to the plaintiff and to their children, and specifies many acts of cruelty and inhumanity inflicted by him upon them. The answer denies such habitual unkindness and cruelty, and denies or excuses the specific acts so charged. It also recriminates by charging the plaintiff generally, and also in various specified instances, with unkind and improper language and conduct towards the defendant and the children, during the married life of the parties.

The issues thus made by the pleadings are simple, plain issues of fact, not differing essentially in character or number from those frequently presented in contested actions for divorces for the cruelty of husbands. They are of the same general character as those usually made in actions for assault and battery, and not more difficult. The only difference is in the number of the specifications. Neither does the case involve any very intricate questions of law. In this respect, a large majority of contested actions to recover the possession of real estate take precedence of it. Were it not for the fact that the trial occupied the court over a month, we should be entirely unable to recognize this as a case of colossal proportions. Indeed, notwithstanding the length of the trial, we quite fail to see any thing in the case to distinguish it from ordinary actions for di vorces on the same grounds. We find nothing in the case which convinces us that the array of eminent counsel, who were employed on either side, was necessary, or that the trial was necessarily so protracted. If, for greater safety, or from a mistaken idea of the magnitude or the exigencies of the case, the plaintiff retained three eminent counsel; or if, in a superabundance of good nature, the circuit judge permitted the trial to be protracted to so great length in the investigation of simple questions of fact, and which we must believe might reasonably have been disposed of in much less time ; we certainly shall take no exception thereto. These are matters of judgment or taste, or perhaps of physical endurance, with which we have no concern further than to consider their necessity.

There can be no doubt whatever that either one of the attorneys for the plaintiff, without any very severe strain upon his professional ability, would have conducted this action to the same result. Two counsellors of St. Paul, Messrs. Brisbin and Davis, whose fame for learning and eloquence has extended far beyond the limits of their state, were retained in the case. It is said that the defendant first retained Mr. Brisbin, and thereupon the plaintiff deemed it necessary to employ Mr. Davis. It must be remembered, however, that in the first instance the plaintiff employed two leading and able attorneys from Hudson, either of whom, as already observed, was abundantly competent to manage and conduct her case ; and the fact that she did so, affords the defendant some excuse for associating Mr. Brisbin with Judge Wetherby as counsel in the case.

It seems to us, also, that the expenses of the litigation were unnecessarily increased.by the change of the place of trial from St. Croix to Polk county. Surely the plaintiff should not have hesitated to go to trial in the place where the parties had resided during nearly all their married life; and we think that she ought to have accepted the stipulation, and permitted the case to be tried at Hudson. At least, we do not think that the additional expenses caused by the change of the place of trial should be charged to the defendant, under the eirumstances.

It is true that the question of permanent alimony remains to be disposed of, and the investigation of the defendant’s pecuniary affairs will necessarily involve some additional expense. But there is no necessity that such expense should be very large. The court should require the defendant in the first instance to submit to an examination concerning his property and income, and also to furnish a full statement thereof. Then, if the plaintiff disputes the correctness of any item of the account, or believes that anything is omitted therefrom which it ought to contain, she should indicate to the court and to the opposite party the particulars wherein she claims that the defendant’s statement is erroneous or defective; and then at some future time the parties can produce their witnesses, and litigate the disputed items. But no expense for witnesses should be incurred until after the defendant has furnished such statement and submitted to such examination. In nine cases out of ten, the circuit judge can so satisfy himself of the extent of the husband’s estate and of his income, by a personal examination of the husband, that he needs no further testimony to enable him to mate a just allowance of permanent alimony. It is quite probable in this case that the judge will not find it necessary to have any further testimony on the subject than that of the parties to the action.

The itemized account of plaintiff’s expenses in the action, exclusive of- counsel. fees and taxable disbursements, is about $950. The taxable disbursements are excluded, because when, the circuit court renders the judgment for permanent,alimony it is proper that it also adjudge the defendant to pay the taxable disbursements of the plaintiff in the action. The allowances of suit money amount to $3,550, from which deduct the above expenses and there remains $2,600 for counsel fees. The judge of the eleventh judicial circuit receives a salary of $2,500 per annum for his official services, and pays his personal expenses out of that allowance. We all know that he brings to the discharge of his judicial duties learning and abilitv of a high order, and we know also that those duties prevent him from engaging to any considerable extent in business pursuits, yet he is giving the best years of his life to faithful public service for really much less than an annual compensation of $2,500. The questions naturally arise, are judicial services as valuable as legal services ? And, if .so, is there in this case work enough necessarily to occupy an attorney one year or one-third of that time? We do not intend to question the correctness of the claim that legal services to the value of several thousand dollars were rendered in the case by the counsel for the plaintiff. What we controvert is the necessity for as large an expenditure therefor.

' But further discussion will be unprofitable. We have reached the conclusion that one thousand dollars is the highest amount that should have been allowed for suit money, including all of the orders therefor. Pour hundred dollars is ample, we think, to pay the necessary expenses of the action beyond taxable disbursements, and six hundred dollars the utmost limit to which we are willing to go in fixing, and compelling the defendant to pay, the plaintiff’s necessary attorneys’ fees. And this sum must include all taxable attorneys’ fees in both the circuit courts, and in this court.

While, in this case, we do not find that any one has been actuated by mercenary motives, or that the expenses have been wantonly increased for the purpose of injuring the defendant, yet it is quite obvious that the effect of making large allowances to the wife would be greatly to increase and multiply divorce suits, and to render them chiefly unseemly scrambles for the property of the husband. Grave considerations of public pdlicy imperatively demand that such allowances should be kept within reasonable, and even within narrow limits. No case in this state has come under the observation of either member of the court, where allowances have been made in a divorce suit as liberal as were made in this case by the circuit court, and, bélieving that the allowances here are far in excess of what they should have heeu, no alternative is left for us but to modify the orders appealed from, or rather to remand them with the following directions to the circuit court:

1st. To modify the order of May 15, 1871, so that it will require the defendant to pay the plaintiff $75 per month, payable monthly, from April 15th, 1871, until the judgment for permanent alimony shall be rendered, or until the further order of that court, for the support of the plaintiff and her children, and also to pay interest at seven per cent, on all such unpaid allowances from the time they respectively became due until the payment -thereof.

2d. To so modify the order of June 21st, 1871, that it will require him to pay the plaintiff $450, and interest thereon at the same rate from the date of such order, on account of the expenses of the action.

The defendant must also be adjudged to pay the taxable costs of both appeals in this court, except attorneys’ fees.

By the Court. — Ordered accordingly.