Palica v. Palica

Baisdeen, J. The defendant’s motion to modify the divorce judgment has a twofold aspect: He first attacks the judgment on the ground that the court had no power, under sec. 2364, Stats. 1898, to make a division and distribution of the property of the husband and also grant an allowance of alimony. He also seeks a revision of the allowance for alimony on the ground of a change in his financial condition, rendering it burdensome for him longer to continue payments. In so far as his application is based upon the latter ground, we do not approve of the practice adopted by the trial court. To disturb a solemn judgment so soon after its rendition, upon affidavits taken ex parte, would be an extremely hazardous proceeding. Such affidavits may make a prima facie showing for relief. The opposing affidavits, as in this case, may deny the grounds alleged. Such affidavits seldom present the true situation of the parties. There may be, and usually are, facts and circumstances important for the court to know that are seldom carried into the papers presented on such hearings. We suggest, for the guidance of trial courts on hearings of this kind, that, where the petition presents a prima facie case for relief, the court either direct a reference to take the testimony, or that he summon the witnesses and take such testimony in open court. This will enable the court to get at the true situation of the parties, and •to make a more intelligent and just conclusion. Whether the court has or has not the power, under sec. 2364, to grant alimony, and at the same time make a final [239] ■division and distribution of tbe husband’s estate, is a question we need not now decide. We are clearly of opinion that the judgment in this case does not attempt to do both. The findings in the record show that defendant was possessed of certain real estate described, and that the plaintiff owned the homestead of the parties, and a house and lot adjoining; that .she also had title to a store building and lot, which the judgment recites she derived from her son “at the instance of defendant.” The judgment in question divests each party of all interest in the real estate owned by the other, and confirms the title in each, and gives the plaintiff the household furniture of the parties. In addition, the husband was to pay $180 annually for the support of plaintiff. This case is not unlike Blake v. Blake, 68 Wis. 303, 32 N. W. 48, where it was held that every provision made in a judgment of divorce for the support of the wife, unless it is expressly declared to be a division and partition of the estate of the husband, will be construed as alimony, and the court may after-wards, under changed circumstances, modify such judgment as may be just. In that case the wife was given a certain ■sum of money in full for her claim in any property of which the defendant had been seised during coverture, to be paid upon her executing a good and sufficient release of her claims in his real estate, “and in full of any claim for alimony.” This was held not to be a final division of the property, so as to bar the court from changing or modifying the judgment, under sec. 2369. The fact that plaintiff was deprived of her right of dower in her husband’s property, and he of the right ■of curtesy in the real estate she possessed, cannot be con■strued as a final division of the husband’s estate. Nor does the fact that the wife was given the household furniture seem •at all conclusive that such was the court’s intent. The court’s allowance of an annual sum for alimony would seem to be indicative of a contrary intent. The conclusion stated finds support in the following cases in this court: Campbell v. [240] Campbell, 37 Wis. 206; Hopkins v. Hopkins, 40 Wis. 462; Thomas v. Thomas, 41 Wis. 229. We do not think the judgment was intended as a final division of the estate of the husband, and hence it does not come within the limitation» suggested by defendant’s counsel as being contained in sec. 2364. No good reason was shown why the court should modify the judgment because of defendant’s changed financial condition. Every allowance of alimony is more or less burdensome to the party who has to pay it. Its payment cannot be avoided merely because it is burdensome. There must be a showing either that further payments are not necessary, or of such an inability to pay as reasonably to excuse performance. By the Court. — The order is affirmed.