Phillips v. Phillips

27 Wis. 252

• Court: Wisconsin Supreme Court
• Decided: June 15, 1870
• Status: Published

Opinion

Dixon, C. J.

It is an established principle in the English law of divorce, and in the law of this country, that cruelty, as well as adultery, may be the subject of condonation. Snow v. Snow, 2 Notes Cas. Supp. 1, 15; D’Aquilar v. D’Aquilar, 1 Hagg. 733; Beebe v. Beebe, 1 Hagg. 789; Gardiner v. Gardiner, 2 Gray, 441; McDwire v. McDwire, Wright (Ohio), 354; Barnes v. Barnes, id. 475; Questel v. Questel, id. 491; Threewits v. Threewits, 4 Des. 560; Wright v. Wright, 3 Texas, 168, 187; Masten v. Masten, 15 N. H. 160; Burr v. Burr, 10 Paige, 20; Whispel v. Whispel, 4 Barb. 217; 2 Bishop on Marriage and Divorce, §§ 50, 51. Condonation takes place where, after the injury, the parties have become reconciled, and have lived together, or cohabited as husband and wife. Such cohabitation is a forgiveness of the injury, which prevents its being afterwards brought forward as a ground of divorce. It is true, as was held in the two cases last cited, that it is a conditional forgiveness only. It is subject to the implied condition that the injury shall not be repeated, and that the other party shall thereafter be treated with conjugal kindness. And it is likewise true, as was held in the same cases, that former injuries will be revived by subsequent misconduct of a slighter nature than would have been necessary to constitute an original cruelty entitling the injured party to a judgment of divorce. But, notwithstanding . this latter rule, and giving to it the fullest operation, we are of the opinion that no cause of divorce was shown in this case. The defendant is a man who at times gives way to feelings of sudden anger and excitement, and indulges in profane, reproachful and threatening language and epithets, and who on such occasions has perhaps, in years gone by, committed acts of cruelty and violence to and upon the plaintiff, which, if a separation had immediately followed, and an action been commenced, would have justified a judgment of divorce. The conduct of the defendant on such occasions, in seizing, beating, pushing and choking the plaintiff, was certainly most reprehensible, cruel and improper; but no act of this kind is alleged or shown to have been committed within the last eight years before the separation, and before this action was commenced. During all that period the parties lived and cohabited as husband and wife, with at most only occasional harsh or threatening language on the part of the husband. This was surely a condonation and pardon of all past acts of cruelty, although cohabitation for a very short time, or for a single night, may not be. Gardner v. Gardner, supra.

And the subsequent misconduct which operates as a breach of this conditional reconciliation, and revives past acts of cruelty as a ground of divorce, must be some similar act of violence or abuse, though it may be of a much slighter and less aggravated nature, and such as would not of itself sustain the action. Or if mere words will so operate, they must be more rude and abusive than those spoken by the defendant on the occasion of the plantiff’s leaving his house. “The morning before I left, the defendant said he would turn all the damn scrape of us out of doors, and I understood that he turned me out, but he told me afterwards that he did not.” This is the testimony of the plaintiff herself, and according to her statement the sole immediate cause of her separation. The defendant denies that the words spoken were applied to her, or intended to be, but only to other persons then resident in the house. It is too clear, we think, to require additional remarks, that with this as the immediate cause of separation, former acts of cruelty, which had been condoned for years, were not revived so as to constitute a ground for divorce.

In this case there is a petition for suit money and the expenses of proceedings in this court. The plain-, tiff represents herself as without any means whatever, and asks that the defendant be ordered to pay such sum as the court in its discretion shall think proper. The costs of printing the case and brief on the part of the plaintiff are stated to he $105; The fees of the clerk of this court will probably be $15 more. The defendant is a farmer in very moderate circumstances. He has a farm valued at $4,000, subject to a mortgage of $1,000 and some accrued interest. All his personal property consists of his household furniture and farming utensils, worth about $400. Besides the mortgage debt he ows $150. He makes affidavit that his entire income from the products of the farm is barely sufficient to pay accruing interest on the mortgage and for his support. It also appears that the defendant has already paid, by order of the court below, $118, namely, $50 to the plaintiff’s attorneys, and $63 fees of the referee. Under these circumstances, we have had some doubt whether we should make any order granting an allowance to the plaintiff for the costs and expenses in this court. The appeal, whilst it may not be said to be vexatious, is yet one which ought not to have been brought. The plaintiff should have been content to abide by the decision of the court below, as it was very clear that her case was without merits to justify further prosecution. Ordinarily suit money ought not to be granted in such a case. Krause v. Krause, 23 Wis. 354. But here the defendant has not been altogether blameless. It may be a salutary admonition to him to govern himself, and regulate his conduct in future, if he is required to pay the whole or a part of the costs of printing and the clerk’s fees. We shall direct, therefore, that he pay the fees of the clerk of this court, and the further sum of fifty dollars.

The order upon the petition will be so entered, and the judgment appealed from will be affirmed.

By the Court. — It is so ordered.