Opinion
September 5, 1967. —
October 3, 1967.
APPEAL from a judgment of the county court of Manitowoc county: LEON H. JONES, Judge. Affirmed.
For the appellant there was a brief by Murphy Brady of Manitowoc, and oral argument by Frank A. Murphy.
For the respondent there was a brief by Smith, Harlow Knab of Manitowoc, attorneys, and Walther Burns and David L. Walther of counsel, all of Milwaukee, and oral argument by Thomas E. Knab and David L. Walther.
This is an appeal from a judgment dismissing plaintiff-appellant's (plaintiff) complaint for an absolute divorce from the defendant-respondent (defendant). The action was commenced April 30, 1965, and judgment was entered September 14, 1966. The action was founded on alleged cruel and inhuman treatment, as set forth in sec. 247.07 (4), Stats.
The defendant also filed a counterclaim for legal separation on grounds of cruel and inhuman treatment. The counterclaim of the defendant was likewise dismissed. There is no appeal as to the dismissal of the counterclaim.
The parties were married at Escanaba, Michigan, on August 17, 1935, and have been residents of the city of Manitowoc for many years prior to the commencement of this action. There have been no children born of the marriage.
Defendant was a long-time employee of the city of Manitowoc, being acting director of planning for the city for approximately two and one-half years prior to the date of trial (April 14, 1966). Plaintiff was employed before the marriage and continued various forms of employment for a substantial time of the marriage. However, for several years prior to the date of trial she had not been employed outside the home.
The defendant was unhappy about the plaintiff's continued association with some neighbors, whom he did not care for. Both parties acknowledge this to be true. He became moody and aloof. There was evidence that defendant, on occasion, would give plaintiff the "silent treatment" which lasted for a week or more and was applied both at home and in public. He would walk out of the room when she questioned him. He would lie on the couch in the den until she went to bed, at which time he would get up and turn on the TV so loud that she could not sleep. When plaintiff complained, defendant told her that if he could not sleep, she was not going to sleep either. Several times when she had been playing cards at the neighbors and came home, he told her to get out of the house. Defendant never abused her physically.
Defendant testified that this lack of communication was due to his disappointment in the realization that the plaintiff was not concerned with his wishes as far as his social life was concerned. He also testified that their difficulties always arose out of the association with the next-door neighbors and stated, "I just didn't like the embarrassment at certain times of feeling obligated to them. Say, for instance, he is host. After eating, you would sit down, `Do you realize what this would cost you at the Supper Club?' and asking me about sexual relations. at home, things of that sort. I just couldn't respect the man any more." Plaintiff knew of this friction between defendant and the neighbor. When asked if she had considered her husband's feelings, plaintiff answered, "Certainly I did, but I don't see why anybody can't get along with anybody."
Defendant testified that he still loved his wife and did not hold any grudge or ill-feeling. They had a long talk about reconciliation during which time plaintiff recalled only one other marital problem, which defendant was unable to recollect.
Apparently to vent his frustrations, defendant left printed notes lying around the house where plaintiff could find them. Plaintiff destroyed most of them after reading them; however, several were offered as evidence. One typical note read:
"Helen Kosbab — (plaintiff's maiden name) A mean self-centered, selfish, unsociable, hypocretical person, with the knowledge and wisdom of life of an unborn child, unknowing the facts of life and too stubborn to find them out.
"A person whose blind satisfaction for herself justifies every shortcoming in her nature and is backed up only by a bunch of `phony' friends who may fold up and drift away leaving a `vacuum' — no `real' friends, no home, no one person in this world who is `close' and cares a damm what happens to yoo — A just inheritance for a dishonest life!"
When asked why he wrote the notes, defendant testified that he had no ill-feelings toward his wife and that the statements written in the notes were not necessarily true but they were impressions in his mind. He wrote the notes and left them where she could find them because he was letting off steam. He would have been ashamed to say these things to her face.
Defendant admitted that his employment was not on a satisfactory basis, principally because of his continuing status as acting director of planning and that his difficulties with regard thereto affected and disturbed him along with the situation with the neighbors.
Both parties have consulted physicians due to the nervousness and tenseness which have resulted from the relationship.
The only question on appeal is whether the evidence was sufficient to sustain the findings and judgment of the trial court.
The trial court in its findings of fact and conclusions of law determined that the plaintiff failed to prove that the defendant was guilty of cruel and inhuman treatment and thereupon dismissed the action.
This court, in the case of Heffernan v. Heffernan (1965), 27 Wis.2d 307, 310-313, 134 N.W.2d 439, reviewed a number of cases wherein "cruel and inhuman treatment" had been considered and after reviewing these cases concluded (p. 312):
"From these cases we conclude that no precisely described or enumerated acts of one spouse toward another can be defined as cruel and inhuman treatment. In order to constitute cruel and inhuman treatment, such as to warrant the granting of a divorce or a legal separation, the court must consider the totality of conduct and the detrimental effect it has upon necessary marital relationships and its grave effect upon the health of the other spouse. The conduct of the offending spouse must be unreasonable and unwarranted, it must render the parties incapable of performing their marital duties, and it must have a detrimental effect upon the physical or mental health of the offended spouse. In applying these tests the court should be cognizant of the desirable public policy in maintenance of marriage and family. The court may properly consider the age of the parties, the duration of the marriage, and presence and age of the children and the probability of delinquency, and the public dependency of the parties or the children."
The foregoing ruling of this court on the question of what constitutes cruel and inhuman treatment under the statutes is quoted with approval in a more recent case of Gauer v. Gauer (1967), 34 Wis.2d 451, 454, 149 N.W.2d 533, 534.
The plaintiff also contends that the conduct of the defendant toward her constituted calculated cruelty. Among other things, she supports this by his expression toward her of the "silent treatment" and such acts as his turning on the television to excessive volume when she attempted to sleep. An examination of the entire record confirms that these actions did not constitute calculated cruelty.
It is true that a sullen, morose, and fretful temperament and disposition may make a spouse very uncompanionable, but it does not follow that the exhibition of those qualities in the temperament of a person is necessarily cruel and inhuman treatment within the meaning of the statute. Johnson v. Johnson (1900), 107 Wis. 186, 83 N.W. 291.
As heretofore stated, one of the difficulties that developed in this marriage centers around the association of the plaintiff with certain neighbors. She contends this association did not or should not have created problems. However, an examination of the record documents by admission of both parties that this association was the source of much of their difficulties.
The appellant wife requests that this court hold as a matter of law that the defendant's acts as described in the court's opinion constitute cruel and inhuman treatment which would require the granting of a divorce. However, defendant's conduct is not of a character to require this result unless it had a detrimental effect on the marital relationship and a grave effect upon plaintiff's health. Heffernan v. Heffernan, supra. Whether his conduct had this effect is dependent upon the kind of person plaintiff is.
The trial court had ample opportunity to observe plaintiff and to form its own evaluation of her. On this record we must assume that it did not find her to be the type of person who was too much upset or disturbed by defendant's acts alleged to constitute cruel and inhuman treatment.
The court's opinion herein should not be interpreted to mean that the acts of a husband of a like or similar kind to those before us in this case will never support a finding of cruel and inhuman treatment sufficient to warrant a decree of divorce. Such acts might support a finding of cruel and inhuman treatment, given a wife of a more sensitive nature and nervous temperament than the instant plaintiff.
The notes and other actions of the defendant, when viewed from the totality of the conduct of the parties and surrounding circumstances, do not demonstrate that the findings of fact of the trial court were against the great weight and clear preponderance of the evidence. Gordon v. Gordon (1955), 270 Wis. 332, 340, 71 N.W.2d 386. In the instant case there is no intimation of physical abuse and there is no demonstration of any grave effect upon the health of either party other than predictable "nervousness."
Although the conduct of the defendant may not have been justified, and certainly cannot be looked upon with approval, this court is fully satisfied that the trial court could, as it did, properly determine that such conduct falls short of cruel and inhuman treatment.
"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, supra (p. 340).
The findings of fact of the trial court are not against the great weight and clear preponderance of the evidence.
By the Court. — Judgment affirmed.