Taake v. Taake

233 N.W.2d 449, 70 Wis. 2d 115, 1975 Wisc. LEXIS 1317
CourtWisconsin Supreme Court
DecidedOctober 2, 1975
Docket40 (1974)
StatusPublished
Cited by25 cases

This text of 233 N.W.2d 449 (Taake v. Taake) 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
Taake v. Taake, 233 N.W.2d 449, 70 Wis. 2d 115, 1975 Wisc. LEXIS 1317 (Wis. 1975).

Opinions

Beilfuss, J.

On October 31, 1966, the plaintiff-respondent, E. Robert Taake, was granted an absolute divorce from the defendant-appellant, Barbara A. Taake, upon the ground of cruel and inhuman treatment. From the findings of fact and judgment on file and a part of the record on appeal, it appears the parties had been married about twelve years. They had three minor children— two of their own and an adopted child. The plaintiff-husband was and still is a physician and surgeon; the defendant-wife was a housewife. The parties resided in Beaver Dam. Pursuant to stipulation of the parties, the court awarded the custody of the children to the wife and required a support money payment of $550 per month by the plaintiff-husband. As a division of estate, the wife was awarded the home of the parties, the household goods, her personal effects and an automobile. In addition, she was awarded alimony in the amount of $200 per month.

On February 6, 1968, based upon a stipulation of the parties, the judgment was amended to provide that the [117]*117husband have custody of the children, and. the provision for support money payments was deleted.

Shortly thereafter the defendant sold the house in Beaver Dam and moved to an apartment complex in Sun Prairie. She lived there for about a year and then moved to an apartment in Madison, where she lived until December, 1971. She worked intermittently as a personnel worker.

During the year 1971, the defendant Mrs. Taake, met Lyle Fink. Fink was divorced from his wife and was employed as a maintenance painter for the Madison school system. Fink was negotiating for the purchase of a home on School Road in Madison. For a period of four to five weeks prior to actual occupancy of the School Road home, Fink lived with Mrs. Taake in her Madison apartment.

In December of 1971 both Mr. Fink and Mrs. Taake moved into his newly purchased home on School Road and both were still living there at the time of the hearing in this matter in May of 1973.1 The arrangements were that she was to pay him $25 per month rent and pay for a part of the groceries, and do at least a part of the housework. She had a separate bedroom. Mrs. Taake has been unemployed a part of the time due to alleged emotional problems. Fink suffered an injury while at work, has received some workmen’s compensation benefits but is unemployed.

Mrs. Taake admits having occasional sexual relations with Fink and failing to correct persons when they refer to her as Mrs. Fink, although she has not affirmatively identified herself as Fink’s wife. Her name does appear as Barbara Fink in a city directory.

[118]*118Pink testified he considered Mrs. Taake to be his wife but later changed his testimony to the effect that they were very, very good friends. Mrs. Taake and Mr. Fink have not married at any time.

In September of 1972, the respondent Robert Taake, ceased making the monthly $200 alimony payments and in May of 1978 petitioned the court for an order amending the judgment to terminate alimony.

As stated, the order amending the judgment expunged the alimony arrearages, terminated alimony and barred future alimony.

In a memorandum decision the trial court found that Mrs. Taake and Lyle Fink had a de facto marriage relationship and that Mrs. Taake had and was engaging in misconduct of such a nature so as to require a termination of her former husband’s obligation to pay her alimony.

The trial court concluded that Mrs. Taake should not be permitted to enjoy both the benefits of her de facto marriage relationship with Lyle Fink and the benefit of alimony from her former husband; and that to permit a divorced woman to do so might dissuade her from remarriage. The trial court also concluded that Mrs. Taake’s legal misconduct was the kind of misconduct which this court has heretofore recognized as warranting a change or elimination of alimony.2

An award of alimony is authorized by sec. 247.26, Stats. It provides, in part, as follows:

“Alimony, property division. Upon every judgment of divorce or legal separation, the court may, subject to s. 247.20, further adjudge for a limited period of time to either party such alimony out of the property or income of the other party for support and maintenance, except no alimony shall be granted to a party guilty of adultery not condoned, . . . The court may also finally divide and [119]*119distribute the estate, both real and personal, of either party between the parties and divest and transfer the title of any thereof accordingly, after having given due regard to the legal and equitable rights of each party, the length of the marriage, the age and health of the parties, the liability of either party for debts or support of children, their respective abilities and estates, whether the property award is in lieu of or in addition to alimony, the character and situation of the parties and all the circumstances of the case; . . .”

Sec. 247.32, Stats., provides an award of alimony may be revised after a judgment. The section is, in part, as follows:

“Revision of judgment. After a judgment providing for alimony or other allowance for a spouse and children, or either of them, ... as aforesaid the court may, from time to time, on the petition of either of the parties and upon notice, to the family court commissioner, revise and alter such judgment respecting the amount of such alimony or allowance and the payment thereof, . . . and may make any judgment respecting any of the said matters which such court might have made in the original action, . . .”

Sec. 247.38, Stats., provides, in part, that an alimony award can be completely annulled upon remarriage:

“Judgment revoked on remarriage. . . . After a final judgment of divorce has been rendered, the court, upon the application of the party paying alimony, on notice to, and on proof of the marriage, after such final judgment, of the party receiving such alimony, shall by order modify such final judgment and any orders made with respect thereto, by annulling the provisions of such final judgment or orders, or of both, directing payment of such alimony.”

Two earlier Wisconsin cases, although perhaps dicta, have given consideration to revision of alimony based upon subsequent misconduct of the divorced spouse.3

[120]*120In Weber v. Weber, supra, the court stated at page 138:

“. . . On the other hand, if the wife, without the fault of the husband and without any adequate excuse or palliation, deliberately chooses a life of shame and dishonor, has no other equitable claim upon property in the hands of the husband, and he is compelled by his daily toil to earn the money paid to her, the court may make the misconduct of the wife the ground for cutting off all alimony, or for reducing the same, as may in its discretion seem just and equitable under all the circumstances of the ease. Our statute, sec. 2369, Stats., prescribes no grounds upon which a judgment for alimony may be modified. It wisely leaves that to the judgment of the court. The considerations that may legitimately influence such judgment are so varied and complex that legislative and judicial wisdom alike refrain from any attempt to enumerate them.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kimberlee Lynn Borowski v. Steven Raymond Borowski
Court of Appeals of Wisconsin, 2026
In RE MARRIAGE OF WOODARD v. Woodard
2005 WI App 65 (Court of Appeals of Wisconsin, 2005)
Cermak v. Cermak
1997 ND 187 (North Dakota Supreme Court, 1997)
Weston v. Weston
882 S.W.2d 337 (Missouri Court of Appeals, 1994)
Marriage of Hansen v. Hansen
500 N.W.2d 357 (Court of Appeals of Wisconsin, 1993)
In RE MARRIAGE OF GERRITS v. Gerrits
482 N.W.2d 134 (Court of Appeals of Wisconsin, 1992)
Smith v. Mangum
747 P.2d 609 (Court of Appeals of Arizona, 1987)
Lewis v. Commissioner
1983 T.C. Memo. 770 (U.S. Tax Court, 1983)
In RE MARRIAGE OF RINTELMAN v. Rintelman
339 N.W.2d 612 (Court of Appeals of Wisconsin, 1983)
Van Gorder v. Van Gorder
327 N.W.2d 674 (Wisconsin Supreme Court, 1983)
Litwack v. Litwack
433 A.2d 514 (Superior Court of Pennsylvania, 1981)
Myhre v. Myhre
296 N.W.2d 905 (South Dakota Supreme Court, 1980)
Mitchell v. Mitchell
418 A.2d 1140 (Supreme Judicial Court of Maine, 1980)
Moore v. Moore
278 N.W.2d 881 (Wisconsin Supreme Court, 1979)
Johnson v. Johnson
254 N.W.2d 198 (Wisconsin Supreme Court, 1977)
Alibrando v. Alibrando
375 A.2d 9 (District of Columbia Court of Appeals, 1977)
Fleming v. Fleming
559 P.2d 329 (Supreme Court of Kansas, 1977)
Hazelwood v. Hazelwood
556 P.2d 345 (New Mexico Supreme Court, 1976)
Hazlewood v. Hazlewood
556 P.2d 345 (New Mexico Supreme Court, 1976)
Taake v. Taake
233 N.W.2d 449 (Wisconsin Supreme Court, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
233 N.W.2d 449, 70 Wis. 2d 115, 1975 Wisc. LEXIS 1317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taake-v-taake-wis-1975.