Wachholz v. Wachholz

Lyox, J. The testimony not having been preserved by a bill of exceptions, the only question presented b}T this appeal is, Do such findings support the conclusions of law and judgment? [380] The findings acquit the plaintiff of all blame for the unfortunate condition in which she is placed. On the other hand, they establish conclusively that for' three years before the trial' the husband had given himself up to dissipation, had neglected his family and business, and had spent much-of his time in saloons, drinking and playing or witnessing games; that over and above his expenditures for machinery, stock, and household goods he has squandered a large amount of money; that he has acquired a thirst for drink, and keeps distilled liquors and alcohol concealed in the grain in his barn, and has drunk thereof to intoxication on some occasions; that his temper has become soured, and he often treats his wife unkindly, and swears at her, and twice has struck her in anger, and that his ill-natured conduct towards her has been so serious, and the ruin impending over the parties, caused by the habits of the defendant, is so imminent, that the plaintiff regards her future, if she remains with her husband, with the most gloomy forebodings, and feels she can no longer live with him, and has good reason so to feel. These findings make a perfectly clear case of cruel and inhuman treatment, within the meaning and intent of the statute (R. S. sec. 2356), and a divorce should have been granted for that cause, if for no other. That the tendency and necessary result of the husband’s ill treatment of his wife (which, the court substantially finds, is habitual)- is and must be to render her married life intolerable, and to' destroy her health as well as her-peace of-mind, cannot be doubted. The case is within the rule of Freeman v. Freeman,, 31 Wis. 235, reaffirmed in Crichton v. Crichton, 13 Wis. 59. The discussion of the subject in those cases renders any further consideration of it here quite unnecessary. Furthermore, we are inclined to think the findings show that the defendant is an habitual drunkard.' But we do hot pass upon this proposition, because the complaint does not, [381] in terms, allege his habitual drunkenness as a ground for divorce. By'the Gourt.— The portion of the judgment appealed from is reversed, and the cause will be remanded with directions to the circuit court to render judgment granting the divorce as prayed. The circuit court will also settle all questions which may arise concerning alimony and allowances, including an allowance (if, in the opinion of that court, it ought to be made) for reasonable attorney fees in this court on this appeal, over and above taxable costs, and concerning the care and custody of the child of the parties, and may include its orders and determination in those matters in the judgment. The defendant must pay the taxable costs of appeal in this court.