Jacobs v. Jacobs

167 N.W.2d 238, 42 Wis. 2d 507, 1969 Wisc. LEXIS 1141
CourtWisconsin Supreme Court
DecidedMay 6, 1969
Docket226
StatusPublished
Cited by10 cases

This text of 167 N.W.2d 238 (Jacobs v. Jacobs) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jacobs v. Jacobs, 167 N.W.2d 238, 42 Wis. 2d 507, 1969 Wisc. LEXIS 1141 (Wis. 1969).

Opinions

Hanley, J.

Upon this appeal the appellant raises the following grounds for reversal:

(1) There was no corroboration of the wife’s testimony that her health was adversely affected by the husband’s conduct;

(2) There was no finding of fact that the husband’s conduct adversely affected the health of the wife; and

(8) Consensual sexual conduct cannot constitute cruel and inhuman treatment.

The trial court’s oral decision granted the plaintiff a judgment of absolute divorce on the grounds of cruel and inhuman treatment. Specifically, the trial court’s opinion stated that the:

“. . . husband was of a fault-finding nature, particularly with the plaintiff, and that he was critical of her, of her actions, of her attempts to perform her function as a mother. ...
“That further that he made abnormal sexual demands upon the plaintiff, and for these reasons, as I said, I will grant a judgment of absolute divorce.”

Neither the opinion nor the findings of fact contains any reference to the health of the plaintiff.

[510]*510The total testimony in the record concerning the health of the plaintiff is set out below:

“Q. Mrs. Jacobs, has the action, this course of treatment which you have described by your husband towards you affected your health? A. Very definitely.
“Q. In what manner? A. Physically, I have — I have had to take medication.
“Q. What medication are you now taking? A. I take Pheoranol. I have had to — I have a prescription for Demerol that the doctor gave me and two occasions he came to the house and gave me a shot of morphine.
“Q. And what doctor has been attending you? A. His name is Dr. Baker.
“Q. And do you attribute this physical condition of yours to this course of treatment that you have described of your husband towards you? A. Yes, I do.
“Mr. Snyder [defendant’s counsel]: Court please, I will object to that in the absence of any expert testimony. That’s a medical conclusion.
“The Court: The conclusion may be stricken. All right.
“Mr. Sheets [Plaintiff’s counsel] :
“Q. For how long a period of time have you been under this doctor’s care? A. I guess about a year and a half. H

On cross-examination:

“Q. Now, you said that you were ill as a result of the conduct of your husband, did you not? A. Yes,. I did.”

(The witness then testified that no physician had ever told her she was on the verge of a nervous breakdown, either before the divorce action was begun or after.)

The plaintiff also testified on cross-examination that she had been slapped by her husband. Her testimony was impeached by a prior statement before a court commissioner when she stated that her husband never struck her. The plaintiff then testified that she never considered that her husband was brutal.

Failure to Corroborate the Plaintiffs Testimony.

Sec. 247.18 (2), Stats., provides:

[511]*511“No judgment of annulment, divorce or legal separation shall be granted on the testimony of the party, unless the grounds therefor and required residence are corroborated by evidence other than the testimony of the parties, except the ground of cruel and inhuman treatment when no corroborating evidence is available. No stipulation by the parties shall satisfy the requirements of this subsection.”

This court described in Heffernan v. Heffernan (1965), 27 Wis. 2d 307, 312, 313, 134 N. W. 2d 439, the necessary proof which must be offered by a party seeking a divorce on the ground of cruel and inhuman treatment:

“. . . no precisely described or enumerated acts of one spouse toward another can be defined as cruel and inhuman treatment. In order to constitute cruel and inhuman treatment, such as to warrant the granting of a divorce or a legal separation, the court must consider the totality of conduct and the detrimental effect it has upon necessary marital relationships and its grave effect upon the health of the other spouse. The conduct of the offending spouse must be unreasonable and unwarranted, it must render the parties incapable of performing their marital duties, and it must have a detrimental effect upon the physical or mental health of the offended spouse. . . .” (Emphasis supplied.) See also: Moonen v. Moonen (1968), 39 Wis. 2d 640, 644, 159 N. W. 2d 720; Jackowick v. Jackowick (1968), 39 Wis. 2d 249, 252, 159 N. W. 2d 54; Mecha v. Mecha (1967), 36 Wis. 2d 29, 33, 152 N. W. 2d 923; Gauer v. Gauer (1967), 34 Wis. 2d 451, 454, 455, 149 N. W. 2d 533; and Newton v. Newton (1967), 33 Wis. 2d 182, 188, 189, 147 N. W. 2d 328.

The testimony of the wife, though skeletal, appears sufficient to meet her burden of proof that her husband’s conduct gravely affected her health. It must be conceded that her testimony was not corroborated. When there is no corroboration of proof which is necessary for a divorce, there should be a showing that such corroboration was not available. It would appear that sec. 247.18 (2), Stats., requires corroboration not only of the cruel and inhuman conduct, but also of the fact that the conduct [512]*512has a grave detrimental effect upon the physical or mental health of the offended spouse.

However, the failure of the plaintiff to corroborate her testimony regarding her health does not require a reversal of this case. As pointed out in Lindahl v. Lindahl (1963), 19 Wis. 2d 379, 384, 120 N. W. 2d 142, 121 N. W. 2d 286, the failure of the defendant to deny the plaintiff’s allegation in a contested divorce is sufficient corroboration to support the judgment. See also: Merten v. National Manufacturers Bank (1965), 26 Wis. 2d 181, 131 N. W. 2d 868; and Swenson v. Swenson (1944), 245 Wis. 124, 13 N. W. 2d 531.

Lack of Necessary Finding of Fact.

In its findings of fact, the trial court made no finding that the plaintiff’s mental or physical health was detrimentally affected by the defendant’s conduct. Nor was there any statement concerning the plaintiff’s health in the court’s oral opinion. There was a finding that the defendant had been guilty of a course of cruel and inhuman treatment toward the plaintiff which “entitled her to an absolute divorce.” The plaintiff contends that the use of the words “entitled her to an absolute divorce” sufficiently implies that all the required evidentiary proof had been submitted. We do not believe such a conclusion follows. It is at least as likely that the trial court entirely failed to consider whether the evidence established the requisite detrimental effect upon the plaintiff’s health.

In any event, this court has an established rule which applies to this situation:

“. . .

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Jacobs v. Jacobs
167 N.W.2d 238 (Wisconsin Supreme Court, 1969)

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Bluebook (online)
167 N.W.2d 238, 42 Wis. 2d 507, 1969 Wisc. LEXIS 1141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacobs-v-jacobs-wis-1969.