Norris v. Norris

Wisconsin Supreme Court

Norris v. Norris

156 N.W. 778, 162 Wis. 356, 1916 Wisc. LEXIS 153

CourtWisconsin Supreme Court

DecidedFebruary 22, 1916

StatusPublished

Cited by9 cases

This text of 156 N.W. 778 (Norris v. Norris) 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

Norris v. Norris, 156 N.W. 778, 162 Wis. 356, 1916 Wisc. LEXIS 153 (Wis. 1916).

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Opinions

BARNES, J.

A divorce judgment which only provides a monthly allowance for the wife, to terminate on her remarriage or death, is not a final division of the husband’s estate [358]*358under sec. 2364, Stats., no matter Row it is designated, Rut is a judgment for alimony which is subject to revision under sec. 2369. On this proposition the case of Lally v. Lally, 152 Wis. 56, 138 N. W. 651, is adhered to under the rule of stare decisis. We do not wish to he understood as deciding that a circuit court may not fix a specific sum to he paid in instalments or in gross and render a final judgment under sec. 2364, although the amount fixed might even exceed the value of the property then possessed by the husband, nor is the Lally Case to be construed as so holding. What we do decide is, that where no definite sum in the aggregate is fixed by the divorce judgment and where the duration of the period over which payments are to extend is subject to the contingency of remarriage or death, such judgment, however labeled, is one for alimony.

The further point is made that an examination under sec. 4096 can only be had at some time after the commencement of an action or proceeding and before judgment, and that inasmuch as judgment was rendered in the divorce action in 1907 the present application was made after judgment and that therefore the case is entirely outside of the statute. Among other things sec. 2369, Stats., provides:

“After a judgment providing for alimony or other allowance for the wife and children, or either 'of them, or for the appointment of trustees as aforesaid the court may, from time to time, on the petition of either of the parties, revise and alter such judgment 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 judgment respecting any of the said matters which such court might have made in the original action.”

So much of a judgment in a divorce action as awards alimony is not a final judgment, but is subject to revision and alteration. As to this portion of the judgment the court is as free to act on subsequent applications as it was originally. [359]*359When the existing judgment is amended, there is to all intents and purposes a new judgment for alimony, and we think it would be an extremely narrow and technical construction of sec. 4096 to hold that it does not permit an examination in a proceeding like the one before us.

By the Court. — Order affirmed.

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BARNES, J.

A divorce judgment which only provides a monthly allowance for the wife, to terminate on her remarriage or death, is not a final division of the husband’s estate [358]*358under sec. 2364, Stats., no matter Row it is designated, Rut is a judgment for alimony which is subject to revision under sec. 2369. On this proposition the case of Lally v. Lally, 152 Wis. 56, 138 N. W. 651, is adhered to under the rule of stare decisis. We do not wish to he understood as deciding that a circuit court may not fix a specific sum to he paid in instalments or in gross and render a final judgment under sec. 2364, although the amount fixed might even exceed the value of the property then possessed by the husband, nor is the Lally Case to be construed as so holding. What we do decide is, that where no definite sum in the aggregate is fixed by the divorce judgment and where the duration of the period over which payments are to extend is subject to the contingency of remarriage or death, such judgment, however labeled, is one for alimony.

The further point is made that an examination under sec. 4096 can only be had at some time after the commencement of an action or proceeding and before judgment, and that inasmuch as judgment was rendered in the divorce action in 1907 the present application was made after judgment and that therefore the case is entirely outside of the statute. Among other things sec. 2369, Stats., provides:

“After a judgment providing for alimony or other allowance for the wife and children, or either 'of them, or for the appointment of trustees as aforesaid the court may, from time to time, on the petition of either of the parties, revise and alter such judgment 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 judgment respecting any of the said matters which such court might have made in the original action.”

So much of a judgment in a divorce action as awards alimony is not a final judgment, but is subject to revision and alteration. As to this portion of the judgment the court is as free to act on subsequent applications as it was originally. [359]*359When the existing judgment is amended, there is to all intents and purposes a new judgment for alimony, and we think it would be an extremely narrow and technical construction of sec. 4096 to hold that it does not permit an examination in a proceeding like the one before us.

By the Court. — Order affirmed.

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156 N.W. 778, 162 Wis. 356, 1916 Wisc. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norris-v-norris-wis-1916.

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