Schoen v. Schoen

183 N.W. 876, 175 Wis. 20, 1921 Wisc. LEXIS 185

• Court: Wisconsin Supreme Court
• Decided: September 23, 1921
• Status: Published

Opinion

The following opinion was filed July 13, 1921:

Owen, J.

The questions raised upon this appeal are almost entirely questions of fact. The record is voluminous, the printed case containing approximately 1,500 pages. Anything like a complete review of the evidence would prolong this opinion to an inordinate length. In fact the judgment well might be affirmed without an opinion. The contest, however, has been a stubborn one from the beginning. The plaintiff has experienced great difficulty in having the case prepared for presentation to this court, the time for the preparation and service of the printed case having been substantially extended. She has incurred great expense, and to affirm the judgment without an opinion might be regarded as too summary a disposition of a case which consumed the time of the trial court for upwards of seven weeks, and which has been presented to this court with great diligence and labor on the part of the attorneys.

The first question to consider is whether, tlie court correctly determined the divorce issue. The material finding upon this issue is as follows:

“That for several years prior to the 1st day of August, 1914, and since about the year 1911, the plaintiff became,, and was, guilty of a course of cruel and inhuman treatment of and towards the defendant Schoen, practiced by her by means other than personal violence; that she manifested a feeling of intense and groundless hatred and contempt and a vindictive, unforgiving, and unrelenting disposition towards him; that her conduct was such as to- evince a persistent wantonness and a determination and design to deliberately and constantly worry and harass him and to keep him in a state of fear and anxiety over his business affairs, which, during a considerable part of said period, were in precarious financial condition, and to keep him in a state of apprehension lest she would undermine and destroy his character and social standing; that in pursuance of such determination and design she continually threatened him with exposures that would effect his financial embarrassment and ruin, and unjustifiably accused him of gross neglect and dishonesty in his business affairs; that she frequently interfered in his conduct of his business by discharging employees contrary to his wishes and without his consent, by interfering with his purchases and sales of goods and by derisively criticising his business ability and methods; that such interference in his business was carried on in a manner that had a tendency to destroy the discipline of his employees and to degrade and humiliate him before them.”

We think this finding is abundantly < sustained by the documentary and undisputed evidence in the case.. No marital difficulties had' arisen between the parties to this action prior to Mrs. Schoen’s departure for Europe. Up to that time the marital relations were entirely pleasant. Mr. Schoen accompanied her to the pier in New York, saw her safely aboard, the vessel, provided her with a letter of credit for $1,000, and regularly remitted.$75 per week. The only family disturbance that had occurred prior to that time arose because of the marriage of the daughter- Hortense without the knowledge or consent of the mother. An estrangement existed by reason thereof between the mother and daughter, and Mr. Schoen most earnestly desired a reconciliation. He performed his best offices to bring about such reconciliation before Mrs. Schoen departed for Europe, but such successes as he was able to obtain in that respect were entirely neutralized by the failure of the daughter to meet Mrs. Schoen at the pier on the morning of her .departure. By reason of this failure the feelings of the mother were intensified, if such were possible, and she set foot on European soil entertaining the bitterest animosity towards her offspring. Mr. Schoen did not share in this animosity. In fact it is certain that because of its existence on the part of Mrs. Schoen he was much depressed in spirits, and the incident caused him great grief. In response to most natural paternal instincts, he invited the daughter and her husband to spend the holidays with him in Milwaukee. This was evidently construed by Mrs. Schoen as a mortal affront, and she became imbued with the same vindictive animosity towards her husband that "she then cherished towards her daughter. She immediately assumed an attitude of hostility and ill-concealed hatred towards her husband, which was manifested in many ways.

First of all, it stands undisputed that she placed her financial affairs with her husband in the hands of an attorney. This in itself is a serious shock to one’s ideals of proper marital relations, and we suggest that whether the employment of an attorney by one spouse to prosecute by legal means the enforcement of property rights against another does not evince an entire lack of that sympathy and love which should characterize the marital relations as a most appropriate subject for reflection. Without meaning to declare that it in itself constitutes cruel and inhuman treatment, such an incident certainly is quite inconsistent with marital duties and obligations. The marital relation carries with it a unity of interest and sympathy, the pleasure and duty of mutual helpfulness, the sharing of burdens and sorrows, mutual sentiments and feelings entirely inconsistent with the waging of legal controversies between husband and wife. The institution of legal proceedings by one spouse against another for the enforcement of mere property rights or financial interests, if not provoked by unjust conduct on the part of the other, dangerously approximates the character of a cruel and inhuman act, not because of the purpose to enforce property rights, but because the enforcement thereof in such a manner indicates a lack of marital sympathy and love and constitutes a rude Shock to the marital sensibilities and relations. Hostile legal proceedings between ordinary business partners usually result in a termination of the partnership. If such be the result concerning a mere business relation, it well may be questioned whether the much more personal and sacred relation of husband and wife can survive under such circumstances.

But assuming that such action may be taken on the part of one spouse towards the other in good faith and for justifiable purposes without disturbance of the marital relations or injury to conjugal sensibilities, such is not the case here. Mrs. Schoen’s entire conduct towards the defendant while in Europe was one of open, hatred and avowed contempt. She refused to open his letters. • She told him that he need not send her birthday greetings. She interfered with the management of his business by demanding the discharge of a valued and trusted employee. She did this by letter and by cablegram. She threatened to write her autobiography which would bring shame and disgrace upon him. She demanded the expulsion of the Kleemans, whom she had invited to her home, from her house, to the great humiliation of her husband. She practiced various methods of coercion, if not blackmail.

“I will write a letter to my lawyer to demand the discharge of this person [Miss Bowers] and put it in such a light that it should look like it is a female employee, so it should look like a sc'andal and demand her. discharge immediately. T want that when this letter reaches you that Miss Bowers be discharged, otherwise I will get redress by writing to the bank.” “Shall I sign this original [power of attorney] or will you be more satisfied to come to terms with me without this.” “How you will tell the Milwaukee people I am never coming back to America, that is up to-you.” “Every letter from now on that you will send I will without opening return to you as we two are through with each other and thank God a finish with terrors is better than terrors without a finish.” “Now one thing more in regard to your daughter. I do not know that person and I think you must have lost your senses, when you write to me about him or her, because they did everything so that I do not want to know about them, like it says ‘An eye for an eye,’ and I will not forget it in the hour of my death, that she made Jeanette her dear aunt.” “I dictated a biography of my life and only the main things — the smaller affairs the reader, will be able to think. This book I will send to your son-in-law, then he has'the right to know everything, so I dictated it as if I would dictate it for him, especially as Mr. Levy, your brother-in-law, is again in your good graces. I must send this book to a lawyer as when the man must have my case, he must be able to look behind the scenes. Now, I ask you, do you want any one to read this book. Perhaps, if you should read the book you would settle with me without trouble and we would only need a lawyer to make this legal, because I am going to seek my rights — where and how I can without consideration.”

Without warning she drew a draft upon him for $1,000 at a time when it caused him most serious embarrassment, and she drew it through the bank at which he was a large borrower. 'Her first act upon arrival on American soil was an attempt to ruin him with his principal creditor. Upon arrival at home she pestered him by day and by night until he purchased peace by signing the contract mentioned in the statement of facts. This contract itself goes very far towards an intentional severance on her part of their marriage relations.

Early in the following spring, after their home had been disposed of and she had appropriated the proceeds, she made her plans and purchased tickets for her return to Europe in August. The execution of those plans was frustrated by the outbreak of war, after which she pursued her own way without conference or communication with Mr. Schoen until the month of December, during which time she purchased a lot, built a cottage, and had it ready for occupancy in the city of Waukesha. She sent him a New Year’s greeting consisting of a blank piece of paper. She addressed him a most contemptuous letter on the occasion of his birthday, in which she saluted him as the shrewdest and smartest merchandise man in the land. This letter was written July 17, 1914, just prior to' her intended departure for Europe. March 11, 1915, she wrote a letter to Bonis & Company, New York, a large creditor of Mr. Schoen, deploring his business incapacity and warning it against further extension of credit. She approached John E. DeWolf, a financial backer of Mr. Schoen in Milwaukee, and expressed surprise that he should loan Mr. Schoen'any money or extend him any credit.

A more consistent and persistent course of cruel and inhuman treatment can scarcely be imagined. It indicates a transition from marital love and sympathy to hatred and contempt. Every conjugal instinct is dead, and in the breast where love, sympathy, and a spirit of helpfulness once bloomed in beauty, hatred, contempt, and a disposition to destroy now thrive in ugliness.

It will be noted that in arriving at this conclusion we have, confined ourselves to the record made'by Mrs. Schoen. As may be inferred from the statement that the printed case contains 1,500 pages, there is much of charge and counter-charge. There is much disputed testimony. Certain anonymous letters reflecting seriously upon Mr. Schoerís credit, addressed to his creditors, were received in evidence which appellant strenuously contends should not have been received because of the failure of proof that they were written by Mrs. Schoen. No mention is made or consideration given to those letters. Neither is mention made nor consideration given to the disputed testimony in the case. The written record made by Mrs. Schoen is in our judgment abundantly sufficient to justify the finding of the court upon the issue of divorce.

It is urged by the appellant that the defendant was guilty of such cruel and inhuman treatment as to entitle the plaintiff to a divorce, and that at least his conduct was such as to forfeit his right to a divorce. The acts of misconduct on the part of defendant relied upon by plaintiff to constitute violations of his marital obligations are those occurring after the return of Mrs. Schoen from Europe. Reference has already been made to the fact that prior to Mrs. Schoen’s departure for Europe the relations between plaintiff and defendant had been pleasant. It is true that Mr. Schoen had counseled and consented to' the secret marriage of the daughter, knowing that this was in opposition to the desires of Mrs. Schoen. However, this incident created no rupture between Mr. and Mrs. Schoen, and there is no suggestion that the difficulties arising between them are attributable to that incident, even though it could be said that the consent of a father to the marriage of a child, opposed by the mother, affords the mother grounds for divorce.

It is first said that when negotiations yvere being pressed by Mr. Thompson, acting as attorney for Mrs. Schoen, certain propositions made by Mr. Schoen looking towards a settlement were conditioned on an absolute divorce, as indicating an intention and purpose on his part to bring about a severance of the marriage relation. It is true that during these negotiations the question of whether any arrangement entered into between the parties looking towards a settlement of their financial affairs would be permanent was discussed, and Mr. Thompson told Mr. Schoen that it would not necessarily be permanent unless a divorce should be secured. Mr. Thompson admits that he told Mr. Schoen this, although there is disagreement between Mr. Schoen and Mr. Thompson as to who first suggested the necessity of getting the divorce in order to assure a final and definite settlement between them. However, to our minds this has little significance, because the conduct of Mrs. Schoen up to that time gave to the defendant a complete cause of action for divorce. In view of what had transpired it is little wonder that he had in mind the matter of procuring a divorce, and especially when advised by the attorney for the plaintiff that no arrangement entered into could be regarded as final and permanent as long as the marital relation continued.

Certain acts of unkindness on the part of defendant towards plaintiff occurring after her return from Europe are stressed in the brief of appellant as constituting cruel and inhuman treatment, and it is further stated that after the sale of the home on State street in April, 1914, defendant made no effort to procure another home. Although it appears in the record that defendant did have under consideration the purchase of a property on Grand avenue with a view of converting it into a homestead, and that Mrs. Schoen had expressed her satisfaction therewith, yet under all the circumstances the defendant was under no obligation to provide a further home. Even at that time Mrs. Schoen had purchased passage for Europe, intending to sail August 3d. She had manifested no particular interest in the purchase of another home and had not urged the matter upon the defendant. When she was prevented from following out her plans to sail, as intended, she had no further communication with the'defendant, but proceeded to the erection of a cottage of her own in the city of Waukesha. The stormy interview at Resthaven hotel, upon defendant’s return from New York, is dwelt upon as constituting an act of cruel and inhuman treatment. There is little doubt that defendant demeaned himself in a violent manner upon that occasion, but the provocation therefor must hot be overlooked. Plaintiff had most officiously intruded herself into the business affairs of the defendant, had countermanded his order for merchandise in New York, and had ordered goods returned that had been shipped pursuant to his direction. A threatening telegram had been sent to him in New York not to interfere with the countermand. He had been peremptorily ordered to visit Resthaven or the bank would be told about the management of the business. This was but a continuation of a systematic and meddlesome interference with his business affairs for a period of two years, and while his violent behavior at the time is not to be condoned, nevertheless it is not greatly to be wondered at. However, that did not affect the prior conduct of the plaintiff which abundantly constituted grounds for divorce on the part of the defendant.

From the commencement of hostilities on the part of Mrs. Schoen, Mr. Schoen evidenced a magnanimous and generous disposition. On August 15, 1912, he wrote her a letter, which was returned to him' unopened, in pursuance of her declared policy not to receive or read any of his letters. In the letter he speaks of the unjust accusations made by Mrs. Schoen, states that he is working day and night to make a success of the business, and declares:

"Certainly if you carried out your idea to write to the lawyers, which I cannot stop you, why then it is possible that the success will disappear because no business can stand an open scandal whether justified or unjustified. But in this case no one will blame me and it is all the same whether you are right with your private opinion what comes, or whether you are wrong, but this should be no cause to ruin the business. But why go to a lawyer ? I will give you advice. Come with Edgar back and when you come and land here you can go with him to Boston, live near Harvard, and you can travel from there to here and we can arrange three different ways of settling this matter: 1. I resign and give everything to you. I will leave and always can work up in another place. All I want for myself in this case is $1,000 and you can have all the rest. 2. Everything-remains as it is and you can draw $5,000 a year. 3. We can sell out the good will and leases and I believe I can get a pretty good sum out of the business and I am perfectly satisfied to give you two thirds and keep one third for myself in case everything is done in an honorable manner, but this cannot be done overnight.”

And Mr. Thompson, her. attorney, testified that during his negotiations with Mr. Schoen he told him that he would be willing to “concede almost anything to get peace of mind; he would give her the whole business to have peace.”

In the face of the vitriolic attitude of Mrs. Schoen during this period it is not surprising if at times the defendant lost control of his temper, and behaved in a manner inconsistent with the relations existing between husband and wife. But on the whole it appears that he exercised great self-restraint and that he was willing to do all that might reasonably be expected of him to restore peaceful relations. A holding that his conduct constituted grounds of divorce on the part of plaintiff or operated to foreclose his right thereto would be unsupported by any consideration of justice.

The only remaining matter to be considered is the property rights of the parties. The court considered that the property owned by Mrs. Schoen was acquired from her husband and as such subject to1 distribution under the provisions of sec. 2364, Stats., which authorizes the court, upon decreeing the divorce, to “finally divide and distribute the estate, both real and personal, of the husband and so' much of the estate of the wife as shall have been derived from the husband, between the parties.” It is argued that the property to which Mrs. Schoen holds title constitutes her separate estate, and that it is not property derived from her husband. Her title thereto is traced to the Racine manufacturing business. The facts concerning that business are set forth in the statement of facts and need not be repeated here. The defendant conceived and initiated that business. His wife rendered him most material assistance in the conduct thereof. It is true that, when the time for settlement with Siegel Bros, arrived, the notes were signed by Mrs. Schoen and the name of the business was changed from Schoen Manufacturing Company to Rosa Schoen, doing business as the Schoen Manufacturing Company. The relations of the parties to the business, however, remained the same. The defendant continued to dominate and direct it, and when the business was suspended Schoen, the defendant, took the money without any question on the part of the plaintiff and invested it in business in Denver. He took possession of the machinery and disposed of it as he saw fit. He sent Mrs. Schoen $200 a month for living expenses while in Chicago. The testimony given by the defendant in bankruptcy proceedings to the effect that his wife owned this property is not controlling in this action. It may be that as between defendant and his creditors she did own the property so that his creditors could not reach the same. The most that can be said is that the earnings of the Racine business were the result of their joint effort.

In Pfingsten v. Pfingsten, 164 Wis. 308 (159 N. W. 921), at page 315 this court, in discussing this statutory provision for a division of property upon a decree for divorce, says that the. provision “rests, largely, upon the fact that, in many cases, the property possessed by the parties is the result of their joint efforts, so that, equitably, a part of it should go to each, not' excluding the wife, necessarily, because of her fault being adultery. The division may be made according to the equities of the case, as regards the origin of the possessions, and the relations between the parties be completely ended as in case of a separation without any jurisdiction to award alimony.”

The trial court took the view that everything was lost in Denver, and that is true. We, however, have gone back of Denver, and taken into consideration the manner in which this property was acquired at Racine, because of the claim on the part of appellant that respondent took her. money to Denver and holds it as her trustee. Our conclusion is. that the property owned by Mrs. Schoen was acquired from her husband and that it was properly taken into account in the final distribution made by' the court. The trial court, in awarding Mrs. Schoen an amount equal to about one third of the total value of the property owned by plaintiff and defendant, bub followed the rule well established in this court that, under ordinary circumstances, upon a final division of the property the wife should be awarded one third thereof.

By the Court. — Judgment affirmed.

Doerfler, J., took no part.

A motion for a rehearing was denied, without costs, on September 23, 1921.