Edleman v. Edleman

Dodge, J. We are unable to discover, from examination of the evidence, any such clear adverse preponderance as to warrant us in setting aside the conclusion of the court that: habitual intoxication and cruel and inhuman treatment were-proved sufficient to constitute a ground for divorce. The argument urged by appellant that the evidence proves a con-donation after most of the acts of misconduct were committed is met by the fact that it also proves a renewal of such acts after the mutual pledges which are claimed to constitute-the condonation. It is entirely well established that con-donation of marital offenses is conditioned upon subsequent, good conduct, and, if similar misconduct follow, the condo-nation is abrogated, and the former causes for divorce are revived. Bishop, Mar., Div. & Sep. § 308; Phillips v. Phillips, 27 Wis. 252; Crichton v. Crichton, 73 Wis. 59, 40 N. W. 638. As to the division of property, however, we cannot but feel that the trial court’s decision is far too favorable to the plaintiff. This court laid down the rule at an early day that upon division of property, in the absence of special circumstances, the share of the wife might range from one third to one half. Varney v. Varney, 58 Wis. 19, 16 N. W. 36. Later cases have indicated our view that ordinarily one third is a liberal allowance to the wife, unless there are special circumstances to warrant a greater allowance. Roelke v. Roelke, 103 Wis. 204, 78 N. W. 923; Martin v. Martin, 112 Wis. 314, 87 N. W. 232, 88 N. W. 215; Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 798; Lindenmann v. Lindenmann, 118 Wis. 175, 95 N. W. 96. In this case we can discover none of such circumstances. The-defendant is evidently a brokendown man, doubtless irre-claimably addicted to habits of intoxication, and not in sound health either physically or mentally. Plaintiff, on the other hand, seems to be a capable and intelligent woman, in good health, able to manage affairs, and to make property productive. She also has a considerable property of.' [273] ber own sufficient to keep ber from want, and bas no ’children to support. Sbe did not aid in accumulating tbe property defendant bas. We cannot tbink an allowance to ber of more tban one third at all justified. Tbe property held by tbe two parties, but derived from tbe husband, were tbe homestead, household furniture, a piano, an adjoining lot with bis shop on it, and certain personal property consisting of housemoving and carpenter tools, and perhaps a tract of land in Tennessee. « Tbe court awarded tbe homestead, household goods, and piano to tbe plaintiff; awarded tbe shop-lot and other personal property and tbe Tennessee property to tbe defendant. In placing values upon tbe real estate it is noticeable that tbe court adopted tbe lowest value mentioned by any one for tbe homestead, namely, $2,500, and tbe highest value estimated by any of tbe witnesses to tbe other lot and to tbe Tennessee property. He also held tbe defendant bound by an admission in bis answer that be bad personal property to tbe amount of $2,000. In this immediate re~ spect we tbink the court overlooked tbe fact that tbe defend' ant claimed to own tbe household goods and piano; and, even-bolding him to bis admission, it would result in a value of considerably less tban $2,000 as tbe admitted value of alibis other property. It quite conclusively appeared on the-trial, however, that $500 would have been a full valuation, of such other personal property. Tbe court also treated the-Tennessee land as an asset of tbe value of $1,200, and de--cided that tbe household furniture, though purchased by tbe defendant, belonged to tbe plaintiff, because sbe bad advanced him money as much as it was worth. Tbe piano is not mentioned in tbe court’s decision, except as it is awarded to tbe plaintiff. We are convinced that error was committed in treating tbe Tennessee property as of any value. It was proved by plaintiff’s own admissions that sbe bad never paid taxes on tbe property deeded to ber by tbe defendant in 1896; that sbe bad thought that be paid taxes for one or two [274] years. No evidence was given as to tbe laws of Tennessee with, reference to the forfeiture of property for taxes, but, in the absence of such proof, they must, under familiar, rules of this court, be presumed identical with the laws of Wisconsin on that subject. MacCarthy v. Whitcomb, 110 Wis. 118, 85 N. W. 707; Hyde v. German Nat. Bank, 115 Wis. 170, 91 N. W. 230. By our laws the title to the property would have been'entirely cut off at the time of the trial; hence it should not have been taken into consideration in making a division. Inasmuch, however, as this conclusion results rather from absence of proof than from actual disclosure of the situation, the plaintiff should have opportunity to make proof, if she desires, as to the condition of the title and the value of this parcel of property. We cannot view the property assigned to plaintiff, in comparison with the values placed upon property assigned to the defendant, as worth less than $2,800. We cannot view the admissions in the answer ¡as establishing more than a value of $1,300 for personal property retained by the defendant. These, with the court’s valu,-ation of $1,000 for the shop-lot, make a total of $5,100. From this the plaintiff should receive about $1,700 and the •defendant about $3,400. If plaintiff is to retain the homestead, as she seems to desire, the only method of equalization is by imposing a charge thereon, which, however, need not .exactly equalize, as, doubtless, a money charge is more available and more certain in value than the property. Roelke v. Roelke, 103 Wis. 204, 78 N. W. 923. We think that, unless ¡affirmative proof is made of some practical title to the Tennessee property, and of the true cash value of that title if imperfect, the defendant should have a charge of $800 upon the homestead, and that the title to the Tennessee property should be left undisturbed in the plaintiff. If, however, she-should make proof of such title to the Tennessee property and its value, the same should be transferred to the defendant, and a charge then made upon the homestead sufficient to ap [275] proximately equalize a division of one third to plaintiff and two thirds to defendant. By the Gourt. — Judgment of divorce is affirmed. The judgment making division of property is reversed, and cause remanded for further proceedings in accordance with this opinion. No costs will be taxed in this court, but appellant must pay the clerk’s fee.