In Barrock v. Barrock, 257 Wis. 565, 44 N.W.2d 527 (1950), an action for divorce, the trial court originally awarded certain property to the defendant, including all household property except the plaintiff's personal effects.Summary of this case from Family S. L. v. Barkwood Landscaping Co., Inc.
October 3, 1950 —
November 8, 1950.
APPEAL from a portion of a judgment of the circuit court for Milwaukee county, and from a portion of an order entered subsequent to judgment: ROLAND J. STEINLE, Circuit Judge. Affirmed.
For the appellant there were briefs by Rubin Ruppa, attorneys, and Nathan Ruppa and Norman W. Wegner of counsel, all of Milwaukee, and oral argument by Nathan Ruppa.
John J. Burke and Giles F. Clark, both of Milwaukee, for the respondent.
The action was one for divorce. On September 12, 1949, the court filed a memorandum decision granting a divorce to plaintiff and awarding custody of two infant daughters and property, including the household furnishings, to the defendant. On motions subsequently made by the plaintiff, the court awarded certain items of household furniture to the plaintiff, had a rehearing on the property of the plaintiff, and increased the property award to the defendant by approximately $6,000. Judgment was entered accordingly. From that portion of the judgment which increases the award and grants custody of the children to the defendant, plaintiff appeals. Plaintiff also appeals from an order entered subsequent to judgment, on April 19, 1950, which provides as follows:
"It is ordered: That pending the appeal from the judgment entered in the above-entitled action to the supreme court of the state of Wisconsin, the plaintiff be, and hereby is, ordered to pay to the defendant, . . . the sum of seventy-five ($75) dollars a month as and for a temporary allowance commencing forthwith; none of the aforesaid payments shall be deducted from the final amount which shall be awarded to the defendant by virtue of any judgment entered in these proceedings."
Immediately after the memorandum decision was filed counsel for plaintiff requested a conference of the court and counsel for both parties. On October 24, 1949, following such conference, plaintiff filed a written application for modification of the decision of September 12, 1949. Testimony upon this application was taken on October 28th and November 10th. At the hearing defendant's counsel orally moved for modification.
In the original trial there was a bitter contest over the conduct of the defendant and allegations in the complaint that she was an unfit person to have custody of the children.
The court found that the parties were married in September, 1944, the plaintiff being a physician thirty-nine years age specializing in dermatology and the defendant then being a college girl of the age of eighteen years. Two children were born, one in March, 1946, the other October 11, 1948. There was some doubt expressed by the husband as to the paternity of the second child. No adultery was charged or proved. The court did find, however, that on occasions between November, 1947, and August, 1948, the defendant had improperly associated with a married man. Her conduct consisted of riding with him and on occasions embracing him and "petting." In August, 1948, she was discovered in the company of this man by plaintiff, his brother, and a detective.
In the decision filed September 12, 1949, the court awarded the defendant $1,154 which was in her possession, and directed plaintiff to pay her an additional $3,000, together with "all of the household furniture of the parties, excepting personal effects and items used by the plaintiff in his profession which may be located in the home of the parties . . . . "This division was based upon a determination of the court that the parties owned a home purchased in 1944 for $12,000, an automobile valued at $1,500, cash in bank accounts and with plaintiff's mother of approximately $14,000, cash in hands of the defendant, $1,154, war bonds, $7,600, and household furniture, $2,500.
The court found that in 1948 plaintiff's income from his profession was $20,000 to $25,000 and that it decreased in 1949 by about twenty-five per cent.
Upon the second hearing in November the court found that the household furniture had a value of $6,500 to $7,000, and the home of the parties, a value of $19,000. It also found that the plaintiff had a half interest in a stamp collection with his brother, which interest was worth $1,000.
The court awarded many items of household furnishings to plaintiff, including the following oriental rugs: Three 5'x7', three 4'x7', one 10'x14', and one 11'x19'; the bedroom furniture from the room which he last occupied, a television set, and many other furnishings described in detail. It then amended its decision by requiring the plaintiff to pay to defendant the sum of $9,000 instead of the $3,000 originally ordered, and to give her an additional $350 for a television set for herself and the children.
Plaintiff appeals on the ground that the memorandum decision of September 12th had the effect of a judgment and that upon the expiration of sixty days the trial court lost jurisdiction to amend it.
Sec. 252.10 (1), Stats., provides:
"All judgments and court orders may be reviewed by the court at any time within sixty days from service of notice of entry thereof, but not later than sixty days after the end of the term of entry thereof."
As has been held when the court pronounces judgment from the bench, the judicial act is complete. In such circumstances the parties have a right to rely upon the judgment delivered in open court. There is some doubt that a memorandum decision, which is written by the court for the information of counsel and which contemplates the filing of more formal findings, should be accorded the dignity of a court order or judgment. But assuming for the purposes of this case that it has such effect, the rule in Towns v. Towns (1920), 171 Wis. 32, 176 N.W. 216, does not control.
The reason for the rule is apparent. The interests of all litigants require that lawsuits be handled with as much dispatch as thoroughness will permit and that the decisions when rendered be final and not subject to change or amendment at the whim or upon belated reflection of the court. We are of the opinion, however, that that rule has no application to a situation such as existed here.
While plaintiff contends that his motion was not one to have the decision of September 12th modified but only clarified to disclose what was meant by "personal effects," the record does not bear out this contention.
The decision of September 12th clearly gave the household furnishings to defendant. The plaintiff by his motion sought to obtain numerous items of household furniture. In so doing he incidentally, and probably inadvertently, admitted that values given by him in the course of the trial were far below the true worth of the properties involved.
It was plaintiff's duty to establish the true value of his property at the trial, and to give minimized figures would constitute a fraud upon the court. Upon this basis alone it would have been within the power of the court to open the case at any time within a year of the discovery.
However, the decision need not rest upon this element. In the instant case the plaintiff, within sixty days, moved the court to modify the judgment, and pursuant thereto the court held hearings within the sixty-day period, at which time defendant also made oral motion for review. No one objected to the jurisdiction of the court. By seeking modification of the judgment plaintiff invoked the continuing jurisdiction of the court. The court, having jurisdiction to amend the decision, had the power to correct it to the disadvantage of the plaintiff as well as to his advantage.
Counsel also urges that the record discloses the defendant is an unfit person to have custody of the children.
At the time defendant was discovered in the company of the other man both were taken to the district attorney's office where plaintiff accused defendant of adultery. Defendant frankly admitted the indiscretions found by the court, but stoutly denied anything beyond. When asked to take a lie detector test she readily agreed. Plaintiff waived such requirement.
The trial court negated adultery and we agree that the defendant should not be dealt with as though convicted. As the court pointed out, she was but twenty-two when the misconduct occurred. It was wrong and silly, and certainly expensive. The trial court, in the final analysis, gave her about one fifth of her husband's estate in lieu of any right to share in his income by way of alimony. It was within the trial court's discretion to so limit her recovery because of her misbehavior. She should not, however, be pilloried.
In the judgment the court increased the support for the two daughters from $100 to $150 a month. About this there is no complaint because, concededly, the trial court continues to have jurisdiction over the custody and support of the children.
Plaintiff also appeals from that portion of the order of April 19, 1950, quoted above. Whether such an order should be made or not lies within the discretion of the trial court. Supreme Court Rule 43a, sec. 251.431, Stats. We do not consider that the trial court abused its discretion and therefore the order is affirmed.
By the Court. — Judgment and order affirmed.