Lasnicka v. Lasnicka

176 N.W.2d 297, 46 Wis. 2d 614, 1970 Wisc. LEXIS 1107
CourtWisconsin Supreme Court
DecidedApril 28, 1970
DocketNo. 189
StatusPublished

This text of 176 N.W.2d 297 (Lasnicka v. Lasnicka) 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
Lasnicka v. Lasnicka, 176 N.W.2d 297, 46 Wis. 2d 614, 1970 Wisc. LEXIS 1107 (Wis. 1970).

Opinion

Hallows, C. J.

The defendant raises two issues: (1) That the plaintiff failed to prove the defendant guilty of cruel and inhuman treatment because there was no testimony that his treatment of his wife affected her health, there was no corroborating testimony of the effect of his treatment, and his acts were condoned; and (2) that awarding more than 80 percent of the estate to the wife in lieu of alimony was an abuse of discretion.

The background facts are not in dispute. The parties were married on June 23, 1951. The plaintiff was a beautician and owned her own shop and business. The defendant was a tool and die maker. At the time of the trial the plaintiff was sixty-one years of age and the defendant fifty-eight. Both parties had been previously married and divorced and there were no children of this marriage.

The evidence showed and the trial court found as a fact that “during the time the parties were married, the [617]*617defendant pursued a course of cruel and inhuman treatment toward the plaintiff, consisting, among other things, as follows: that the defendant has wrongfully accused the plaintiff of infidelity; that the defendant was possessed of a violent and ungovernable temper and would create arguments practically daily, without cause or provocation; that the defendant used violent and indecent language of and toward the plaintiff; that the defendant beat and struck the plaintiff, leaving black and blue marks on her body and knocked her to the floor and on one occasion, the plaintiff had to crawl through the bathroom window to avoid further beating; all of which has adversely affected the plaintiff’s physical health and emotional well being.”

The first question is whether there is evidence that Mrs. Lasnicka’s health was affected by this cruel and inhuman treatment. Cruel and inhuman conduct must have a detrimental effect upon the physical or mental health of the offended spouse to constitute grounds for a divorce. Heffernan v. Heffernan (1965), 27 Wis. 2d 307, 312, 313, 134 N. W. 2d 439; Mentzel v. Mentzel (1958), 4 Wis. 2d 584, 91 N. W. 2d 101; Moen v. Moen (1946), 249 Wis. 169, 23 N. W. 2d 472. While the effect of the defendant’s conduct on the health of his wife is not abundantly set forth in the record, we agree with the trial court the evidence is sufficient. Mrs. Lasnieka testified .the conduct of her husband made her nervous and upset; that Dr. Paul B. La Bissoniere advised her to proceed with the divorce action or she would have a nervous breakdown; that she was afraid and cried and had black and blue marks on her body from being beaten by the defendant.

While all of the acts of the defendant are not set forth in this opinion, they are of such a character that they would naturally have a detrimental psychological and physical effect upon the health of a person, even of a woman of a most callous disposition, which Mrs. Lasnieka was not. The trial court could well draw such [618]*618an inference which with the other testimony is sufficient to sustain the finding that the plaintiff’s health was adversely affected. But it is argued that Dr. La Bissoniere’s statement was hearsay and should be disregarded. However, hearsay evidence received without objection is evidence and entitled to whatever probative value it inherently possesses. Schlichting v. Schlichting (1961), 15 Wis. 2d 147, 160, 112 N. W. 2d 149; McCormick, Evidence (hornbook series), p. 126, sec. 54; Annot. (1986), 104 A. L. R. 1130.

It is argued that there was no corroborating testimony as to the effect of the alleged cruel and inhuman treatment on the plaintiff’s health as is required by sec. 247.18 (2), Stats. In Jacobs v. Jacobs (1969), 42 Wis. 2d 507, 511, 167 N. W. 2d 238, in construing this statute, this court stated that when it is necessary in a divorce case to have corroboration of proof and such proof was absent, it should be shown that such corroboration was unavailable. Here, the corroborating evidence, though minimal, was sufficient — the daughter testified to her mother’s mental condition upon being abused by the defendant. Dr. La Bissoniere considered Mrs. Lasnicka’s condition to be such that he advised the continuance of the divorce proceeding to avoid a nervous breakdown. The conduct of the defendant was of such a nature as to make the marital state intolerable and to render Mrs. Lasnicka incapable of performing her duties in married life. There was no intercourse for at least one year before the commencement of the divorce action. A wife who has been unjustly called a lesbian and a prostitute by her husband can hardly have the mental state necessary for conjugal love and the lack of such mental health is sufficient to characterize the course of conduct as “cruel and inhuman treatment” under sec. 247.07.

When cruel and inhuman treatment is alleged as a ground for divorce, it is frequntly argued, as it is here, that the conduct was condoned. Condonation is a doc[619]*619trine which has for its purpose the saving of a marriage by recognizing the forgiveness of one party by the other. However, this doctrine has a built-in condition subsequent based upon the frailties of human nature that subsequent misconduct abrogates the effect of the condonation and revives the previously condoned acts for the purpose of constituting a ground for divorce. Gordon v. Gordon (1955), 270 Wis. 332, 341, 71 N. W. 2d 386; Edleman v. Edleman (1905), 125 Wis. 270, 272, 104 N. W. 56; Cudahy v. Cudahy (1935), 217 Wis. 2d 355, 359, 258 N. W. 168; Schreiber v. Schreiber (1958), 2 Wis. 2d 484, 488, 87 N. W. 2d 243; and Annot. (1953), 32 A. L. R. 2d 107, 155, III, sec. 18. After condonation, the status of one guilty of a ground for divorce might be said to be that of probation.

However, we pointed out in Gordon, condonation is not abrogated when the recrudescence of the objectionable conduct is provoked by offensive conduct of the person seeking the divorce. The defendant here claims his conduct after condonation was provoked by offensive conduct of his wife. While some of the conduct of Mrs. Lasnicka was not particularly salutory, such as in staying away from home until late at night or early morning and refusing to have marital relations, this conduct was invited and provoked by the course of cruel and inhuman treatment on the part of the defendant. So far as the record shows the conduct of Mrs. Lasnicka was not sufficient provocation to justify the defendant’s use of vile and indecent language, accusing her of associating with other men and calling her a lesbian. His conduct was substantial and an over-reaction. Besides conduct constituting a lesser degree of cruel and inhuman treatment than that prior to condonation may revive a cause of action. Weich s (1928), 197 Wis. 159, 162, 221 N. W. 733; Phillips v. Phillips (1870), 27 Wis. 252; Cudahy v. Cudahy, supra.

The defendant claims he was pilloried by the property settlement because the plaintiff received 80 percent of the [620]*620estate. We disagree. The total assets of the parties amounted to a little over $28,000. Of this, about $7,000 was the sole property of Mrs. Lasnicka. The bulk of the remaining assets consist of an equity in a Milwaukee home which the court determined to be valued at $18,849. In respect to the home, the plaintiff made a $3,000 down payment, paid $2,000 for the construction of a breezeway, made payments of $875 on the mortgage in 1968, and $500 in arrearage payments on the mortgage.

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Bluebook (online)
176 N.W.2d 297, 46 Wis. 2d 614, 1970 Wisc. LEXIS 1107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lasnicka-v-lasnicka-wis-1970.