Rogers v. Hollister

Keewikt, J. In the consideration of the question involved in this case it will be well to refer briefly to the Statutes bearing upon the subject. Sec. 2330, Stats., prohibiting marriage under certain circumstances, was amended by ch. 271, Laws of 1901, by adding thereto a provision to the effect -that it shall not be lawful for any person divorced to marry again within one year from the date of the entry of such judgment, and that the marriage of any divorced person within one year from the date of the entry of such judgment shall be null and void, but upon application of such divorced person the court granting the divorce may authorize the marriage of such person within the year. This statute was again amended by ch. 456, Laws of 1905, so as to provide, in effect, that it shall not be [520] lawful for any divorced person to marry again within one year from the date of entry of such judgment, and that the marriage of any divorced person solemnized within one year from the date of such judgment of divorce shall be null and void; and providing further that the circuit judge who granted the divorce, upon application of both parties, may by order authorize the remarriage of such divorced persons to each other within the year. Ch. 323, Laws of 1909, made several provisions and amendments to the law on the subject of divorce, and among others sec. 23607c, which provided in effect that in every action for divorce in which it should be determined that a divorce be granted, an interlocutory judgment shall be entered which shall fully determine the rights of the parties, provide for the care, custody, and maintenance of the minor children, fix the amount of alimony, etc., and that such judgment shall determine the status of the parties, but such determination of the status shall not be effective, except for the purpose of an appeal to review the same, until after one year from the date when such interlocutory decree was entered; that any of the provisions of such interlocutory judgment may be reviewed by appeal within one year from the date of such interlocutory judgment or from the date of the last modification or revision of the same, if modified or revised after it is first entered. Also, sec. 2360l, which provided that at the expiration of one year from the entry or from the date of last modification of such interlocutory judgment the final judgment may be entered, unless such interlocutory judgment shall have been reversed or so modified on appeal as to'prevent entry of such final judgment, unless the court, for sufficient cause, upon its own motion or upon the application of a party, shall otherwise order before the expiration of such period, and that if an appeal from such interlocutory judgment be pending at the expiration of said year, no final judgment shall be entered until such appeal shall have been finally determined. [521] Other changes were made by the legislature in 1911 (ch. 239), which left the law on the subject as follows: “Sec. 2314. 1. When a judgment of divorce from the bonds of matrimony is granted in this state by a court, such judgment, so far as it determines the status of the parties, shall not be effective, except for the purpose of an appeal to. review the same, until the expiration of one year from the date of the entry of such judgment. “2. So far as said judgment determines the status of the parties the court shall have power to vacate or modify the same, for sufficient cause shown, upon its own motion, or upon the application of either party to the action, at any time within one year from the entry of such judgment. But no such judgment shall be vacated or modified without the service of notice of motion, or order to show cause on the divorce counsel, and on the parties to the action, if they be found. If the judgment shall be vacated it shall restore the parties to the marital relation that existed before the entry of such judgment. “3. It shall be the duty of every judge, who shall enter a judgment of divorce, to inform the parties appearing in court that the judgment, so far as it affects the status of the parties, will not become effective until one year from the date when such judgment is entered. “4. Such judgment, or any provision of the same, may be reviewed by an appeal taken within one year from the date when such judgment wa's entered. At the expiration of such year, such judgment shall become final and conclusive without further proceedings, unless an appeal be pending, or the court, for sufficient cause shown, upon its own motion, or upon the application of a party to the action, shall otherwise order before the expiration of said period. If an appeal be pending at the expiration of said year, such judgment shall not become final and conclusive until said appeal shall have been finally determined.” It will be seen that by the amendments made in 1911 the provision in ch. 323, Laws of 1909, respecting the entry of an interlocutory judgment was dropped out and other changes made. [522] Sec. 2374, Stats., does not make plain just what the status of the parties is during the year after judgment. True, it provides that the judgment, so far as it determines the status of the parties, shall not be effective, except for the purpose of an appeal to review the same, until the expiration of one year from date of entry, and that so far as it determines the status the court shall have power to vacate or modify it at any time within one year, and if the judgment shall be vacated it shall restore the parties to the marital relation that existed before the entry of the judgment. The statute makes it the duty of the judge who shall enter the judgment to inform the parties that the judgment, so far as it affects the status of the parties, will not become effective until one year from date of entry. It further provides that the judgment may be reviewed by appeal within one year, and at the expiration of one year shall become final without further proceedings unless an appeal be pending or the court shall otherwise order before expiration of said period. , Now it is contended by appellant that the judgment here entered was not effectual to dissolve the bonds of matrimony until the expiration of one year from date of entry; therefore, at the time of the death of Martha Alice Rogers the appellant, Fred L. Rogers, was her husband. On the part of the respondents it is insisted that the judgment dissolved the marriage contract at the date of entry, subject to revision within one year, and conditions specified in the statute; and that in any event the appellant was not the husband of Martha Alice Rogers at the time of her death within the meaning of her will. We need only consider the latter proposition in this, case, namely, whether Fred L. Rogers was the husband of Martha at the time of her death within the meaning of her will. While the divorce action had been commenced shortly before the will was executed, it is plain from the record that Martha was opposed to the divorce and desired a reconciliation; but [523] the appellant persisted, and the judgment was entered contrary to the wish of the wife. Whether the judgment dissolved the marriage contract when entered, subject to modification within the year, or whether it became effectual to dissolve the contract at the end of the year, it was at least a conditional judgment, which without further action upon it would automatically become final and conclusive at the end of one year from its entry. So it would seem that when Martha Alice Eogers made her will bequeathing property to Fred L. Rogers if he should be her husband at the time of her death, she meant that she gave the property to him if no divorce -was granted. It does not seem that she intended to give her property to him if he had a judgment of divorce entered against her which would at least be final and conclusive one year from the date of entry unless otherwise ordered. She doubtless meant a “duly commissioned husband,” with all the rights and privileges and charged with all the duties and obligations of a real husband in law and in fact. Whatever the effect of the judgment may have been under the statute when entered, it at least impaired the relation which formerly existed between Fred L. Rogers and Martha Alice Eogers as husband and wife and severed the social if not the legal relation which formerly existed between them. We therefore conclude that Fred L. Rogers was not, at the time of the death of Martha Alice Eogers, her husband within the meaning of the will. The history of legislation on the subject and the statute as left by ch. 239, Laws of 1911 (sec. 2314, Stats.), would seem to indicate that it was the intention of the legislature that the entry of judgment should dissolve the marriage contract, subject to the conditions prescribed by the statute, but this we do not decide. It follows that the judgment of the court below must be affirmed. By the Court. — The judgment of the court below is affirmed.