Schipper v. Schipper

174 N.W.2d 474, 46 Wis. 2d 303, 1970 Wisc. LEXIS 1073
CourtWisconsin Supreme Court
DecidedMarch 6, 1970
Docket62
StatusPublished
Cited by9 cases

This text of 174 N.W.2d 474 (Schipper v. Schipper) 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
Schipper v. Schipper, 174 N.W.2d 474, 46 Wis. 2d 303, 1970 Wisc. LEXIS 1073 (Wis. 1970).

Opinions

Hanley, J.

Three issues are presented on this appeal:

(1) Was the evidence sufficient to support the trial court’s finding of cruel and inhuman treatment;

(2) Was it an abuse of the trial court’s discretion to award plaintiff custody of the minor children; and

(3) Was it an abuse of the trial court’s discretion to allow plaintiff a total of $7,400 for attorney’s services rendered her in the action?

[306]*306 Cruel <md inhuman treatment.

It was the finding of the trial court:

“That for the past six years the defendant showed little, if any, attention to the plaintiff and to the children, that he was obsessed with his job at Sta-Rite and talked constantly on this subject at the dinner table, that he constantly belittled and ridiculed the plaintiff in front of her family and friends and told her she was mentally unsound and in need of psychiatric treatment, that he showed her no love or affection for at least the past two years, that he accused her of spending too much money and on one occasion knocked her off her feet in the basement of their home, that as a result of this conduct on the part of the defendant the atmosphere within the home was explosive and tense and arguments were numerous and that by reason thereof the plaintiff’s health suffered and impaired the mental and physical health of the plaintiff to such an extent that the marriage state became intolerable and that such conduct upon the part of the defendant constituted cruel and inhuman treatment toward the plaintiff.”

It is the defendant’s position that each of these findings is contrary to the great weight and clear preponderance of the evidence. In attacking many of these findings the defendant indicates that he specifically denied the plaintiff’s underlying allegations. Such denials, however, are insufficient to establish that the findings were against the great weight and clear preponderance of the evidence. The trial court’s decision stated:

“. . . The testimony offered by each of the parties to support their respective cause of action standing separately, and without considering the denials of the opposing party, would be legally sufficient in the opinion of the court to sustain a decree of absolute divorce to that party. The issue then at this point is primarily one of credibility. The principal contentions of both parties as to the conduct of the opposite party either stand as the truth, in which event the doctrine of recrimination must be considered, or one must fall as not being' credible and a decree granted to the opposite party.
[307]*307“After thoroughly reviewing all of the testimony offered by each of the parties on the issue presented, and having observed and considered the demeanor of each of the witnesses while on the witness stand and while in the courtroom during the trial, the court finds the testimony of the plaintiff as to the treatment suffered by her at the hands of the defendant is true and that the totality of such conduct is of the type which impairs or is calculated to impair the mental and physical health of the plaintiff and would destroy the foundation of the marriage and make the marriage state intolerable. The court finds the plaintiff has established on the record grounds for absolute divorce from the defendant and that the defendant’s conduct was cruel and inhuman.
“The court further finds the defendant has failed to establish grounds sufficient to entitle him to a decree of absolute divorce and his counterclaim is therefore dismissed and a decree of absolute divorce will be awarded plaintiff on her complaint.”

Quite obviously, the trial court believed the plaintiff’s testimony and not that of the defendant. As stated in Mason v. Mason (1969), 44 Wis. 2d 362, 368, 171 N. W. 2d 364:

“ ‘The weight of the evidence and the credibility thereof were matters entirely within the province of the court as the trier of the facts.’ Gordon v. Gordon (1955), 270 Wis. 332, 340, 71 N. W. 2d 386.”

This court, not having had the opportunity to observe the demeanor of either the defendant or the plaintiff, must give credence to the testimony of the plaintiff.

Thus, as to the court’s finding that he “was obsessed with his job at Sta-Rite and talked constantly on this subject,” this court need not accept the defendant’s denial as a verity. Likewise, the plaintiff’s admission that she had on occasion inquired as to the defendant’s work does not render her testimony, which was corroborated by Janet Schipper, untrustworthy, or render the trial court’s finding against the great weight and clear preponderance of the evidence.

[308]*308As to the finding that the defendant “for the past six years showed little if any attention to her [the plaintiff] and the children,” the defendant’s citation of various family activities, such as swimming, ice skating, picnics and trips, which were partially refuted by testimony of Janet Sehipper, does not require a ruling that it was against the great weight and clear preponderance of the evidence. The term “little if any” over a six-year term is relevant; and assuming arguendo' the veracity of testimony favorable to the defendant, the trial court was justified in its finding.

In reference to the court’s finding that “he constantly belittled and ridiculed her [the plaintiff],” the defendant quotes as follows from the plaintiff’s testimony: “You can’t put your finger on people’s way of belittling you,” and apparently argues that the plaintiff was unable to give specific examples of such conduct on his part. However, the plaintiff also testified:

“. . . For instance, in front of my mother, he would say, ‘she spends too much money. I save the money I have but she goes out and spends it.’ He has said with the driving of the car — I wasn’t permitted to drive his car. It was too big. I would bump it. He bought me a little car. It was just everything I did. I wasn’t capable of doing anything.”

Suffice it to say that plaintiff’s inability to be more specific does not render her testimony untrustworthy. Although the defendant also argues that the plaintiff’s testimony as to this finding was uncorroborated by anyone other than Janet — her “mentally disturbed” daughter — this court need not delve into Janet’s credibility. The trial court no doubt considered Janet’s mental condition and either determined that she was not “mentally disturbed” or that any such disturbance did not affect her credibility.

In attacking the court’s finding that the defendant told plaintiff that “she was mentally unsound and in need of psychiatric treatment,” the defendant argues that his statements were in fact true. While truth is a defense [309]*309in actions of defamation, it does not bestow upon one a license to spread such accusations and thereby preclude a finding that such conduct constituted cruel and inhuman treatment.

The finding that the defendant “showed her no love or affection for at least the past two years” is supported by plaintiff’s testimony that they had not had sexual relations for a period of two years and had not occupied the same bed during that time. In addition, there was testimony indicating that they sometimes went for weeks without talking to one another. Neither the fact that they took several trips during this time nor Dr.

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Schipper v. Schipper
174 N.W.2d 474 (Wisconsin Supreme Court, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
174 N.W.2d 474, 46 Wis. 2d 303, 1970 Wisc. LEXIS 1073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schipper-v-schipper-wis-1970.