Weber v. Weber

44 N.W.2d 571, 257 Wis. 613, 1950 Wisc. LEXIS 290

• Court: Wisconsin Supreme Court
• Decided: November 8, 1950
• Status: Published

Opinions

Fairchild, J.

An action for an absolute divorce differs decidedly from one in which a party is seeking a partial suspension of the marriage relation and providing for a legal separation, that is, a divorce from bed and board. The reason for a judgment providing for the latter arrangement is that it leaves hope for a reconciliation. The questions which arise in actions of this nature involve investigations which are properly of a judicial nature, and the jurisdiction over the particular action is confined to the tribunal authorized to treat with such matters. It is strictly a judicial proceeding under the limitations fixed by legislative act.

■ The action brought by the wife in which judgment was entered on the 8th day of March, 1948, was for divorce from bed and board. The judgment entered was not an interlocutory judgment. This legal separation which is provided for in the judgment has not been disturbed by any subsequent conduct on the part of either party. There has been evidently a change of mind, the appellant here now desiring absolute divorce. Because the judgment entered in her first action and on her particular complaint is a final judgment passing upon the very facts which are now presented as a new cause of action, her complaint must be dismissed as decided by the trial court.

The question of the right to maintain this action as here presented was treated in the case of Graham v. Graham, 149 Wis. 602, 604, 605, 136 N. W. 162, in an opinion by the late Chief Justice Winslow, in which he said: “A divorce action is purely the creature of statute,” and he ruled that after the expiration of the term at which a final judgment is entered, even in a case of this nature where the result prayed for was a divorce from bed and board, “is no more to be altered, revised, or set aside, so far as the part which grants the djvorce is concerned, than any other judgment of a court of record.”

Sec. 247.33, Stats. 1947, reads:

“In all cases of divorce from bed and board for any of the causes specified in section 247.08, the court may decree a separation forever thereafter, or for a limited time, as shall seem just and reasonable, with a provision that in case of a reconciliation at any time thereafter, the parties may apply for a revocation or suspension of the decree; and upon such application the court shall make such order as may be just and reasonable.”

Under sec. 247.07 (7), Stats. -1947,—

“A divorce from the bond of matrimony may be adjudged . . . :

“(7) Whenever the husband and wife shall have voluntarily lived entirely separate for the space of five years next preceding the commencement of the action, the same may be granted at the suit of either party. And such'living apart for five years or more, pursuant to a decree of divorce from bed and board, without request during that period by either party to the other in good faith for a reconciliation and revocation of said judgment, shall not be any bar to an absolute divorce upon this ground at the suit of either party; provided further, however, that no divorce absolute upon this ground shall be granted unless six months of such separation shall be subsequent to the time when this act shall go into effect.”

This provision for separation has been incorporated into our divorce law and recognizes that the marriage relation under a divorce for bed and board is merely suspended as to certain marital rights. They are not annulled. They are regulated by the terms of the decree. But property rights and interests remain undisturbed. It appears that in the case of the death of either party the survivor is the widow or widower, as the case may be, but when “such living apart for five years or more, pursuant to a decree of divorce from bed and board, without request during that period by either party to the other in good faith for a reconciliation and revocation of said judgment, shall not be any bar to an absolute divorce upon this ground at the suit of either party.” Sec. 247.07 (7), Stats.

By the Court. — Judgment affirmed.