Pfingsten v. Pfingsten

Marshall, J. Tbe main question on this appeal is whether, where a divorce is granted on the ground of adultery of the wife, the court is without power to make a division of property between the parties, but may, nevertheless, divest the wife of the separate estate which she has deriyed from the husband and transfer it to him. That a wife may take title to property from her husband and hold it as her sole and separate estate is provided by sec. 2342, Stats. In that respect, the written law has been changed since Kinney v. Dexter, 81 Wis. 80, 51 N. W. 82, as counsel for appellant suggests. So there can be no question but what the 'real estate and other property respondent conveyed to appellant during their married life became her property, subject only to such power in respect thereto as can be found in the divorce statute, sec. 2364. That would, doubtless, be so without any express provision of law on the subject, but it is covered by sec. 2372, Stats., which provides that: “No judgment nullifying a marriage or for a divorce of any kind shall in any way affect the right of a wife to the possession and control of her separate property, real or personal, except as provided in this chapter; and nothing contained in this chapter shall authorize the court to divest any party of his title in any real estate further than is expressly provided herein.” In the face of that statute, we must hold that the trial court erred in concluding, as seems to haYfe been the case, that it did not have jurisdiction to either award alimony to appellant or to make a division of property between the parties, and yet holding that it had authority to divest her of all property derived from respondent and vest it in him. The statute, as will be seen, only provides for so dealing with property in — 312 — case of a division thereof between the parties. Where there is no warrant for such division, the feature of the statute, in respect to dealing with the wife’s property derived from her husband, as part of the entirety to be distributed, has no vitality whatever. On that, let the statute (sec. 2364) speak for itself: • “. . . the court may finally divide and distribute the estate, both real and personal, of the husband and so much of the estate of the wife as shall have been derived from the husband, between the parties and divest and transfer the title of any thereof accordingly, having always due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties and all the circumstances of the case; . . .” The power, as regards division of property, is wholly a creature of the statute. The authority to take title from one and vest it in the other is dependable upon the express power to make a property distribution. For that the estate of the wife derived from her husband is regarded as his, but not otherwise. Bacon v. Bacon, 43 Wis. 197. The language “the court may finally divide and distribute the estate, . . . and divest and transfer the title of any thereof accordingly,” very clearly means “the court may finally divide,” etc., in which case may, if any, “divest and transfer the title of any thereof accordingly.” There is nothing ambiguous about that language, therefore it must be taken as it reads. It follows that it was erroneous and illogical to hold that there could be no division of property in case of a divorce from the wife on account of her adultery and yet her separate property could be taken from her and given to the husband because she acquired it from him. We now turn to the main proposition in the case. Did the court below correctly read the statute in holding that it prohibits allowance of either alimony or a division of property in such circumstances as existed in this case ? — 313 — That the allowance of alimony to a divorced wife is made conditional upon her fault not being that of adultery, is plain; but do the words “for any cause excepting that of adultery committed by the wife” also make the provision for ^a division of property depend upon the divorce not being-granted because of such fault ? That the condition is absolute as to alimony is not only clear from the statute, but has been so held from an early day. State ex rel. Child v. Smith, 19 Wis. 531. That the language of the statute, in its literal sense, covers both situations must be admitted, but often such sense does not correctly voice the legislative purpose. That must prevail in every case, so far as it can be gathered from the language of the law, by any reasonable construction thereof. State ex rel. M., St. P. & S. S. M. R. Co. v. Railroad Comm. 137 Wis. 80, 85, 117 N. W. 846. True, the plain mandate of a law must prevail even though it appear unreasonable, Rowell v. Barber, 142 Wis. 304, 125 N. W. 937; but whether the mandate is plain must often be determined with reference to “effects and consequences.” A statute may be plain and unambiguous in its letter, and yet, giving it the meaning thus suggested, it may be so unreasonable or absiird as to involve the legislative purpose in obscurity. Rice v. Ashland Co. 108 Wis. 189, 84 N. W. 189. In such case, or when obscurity otherwise exists, the court may look to the history of the statute, to all the circumstances intended to be dealt with, to the evils to be remedied, to its reason and spirit, to every part of the enactment,, and may reject words, or read words in place which seem to be there by necessary or reasonable inference, and substitute the right word for one clearly wrong, and so find the real legislative intent, though it be out of harmony with, or even contradict, the letter of the enactment. A thing which is within the intention of the lawmakers and by rules for construction can. be read out of it, “is as much within the statute as if it were within the letter.” School Directors v. School Directors, 81 Wis. 428, 51 N. W. 871, 52 N. W. 1049; Neacy v. — 314 — Milwaukee Co. 144 Wis. 210, 128 N. W. 1063; State ex rel. McGrael v. Phelps, 144 Wis. 1, 9, 128 N. W. 1041; State ex rel. Husting v. Board of State Canvassers, 159 Wis. 216, 150 N. W. 542. Tbe cases referred to illustrate tbe extent of judicial license often and necessarily exercised in order to carry out tbe legislative purpose. It should never be used to make a law, but may go to tbe furthest extent indicated, and must in some cases, in order to prevent tbe real legislative will from being-defeated. In tbe light of tbe foregoing as to bow ambiguity may appear and bow it may be solved, let us look at tbe reason of tbe statute. Tbe difference between tbe nature of alimony, and a division of property, furnishes a strong reason why tbe legislature must have intended to make tbe former absolutely conditional upon tbe fault of tbe wife not being adultery, and not so tbe latter. Tbe doctrine of alimony is very ancient. It is grounded on tbe natural obligation of tbe husband to support tbe wife which is not, necessarily, in a moral sense, regardless of written law, wholly removed by a judicial separation. It is said to have been recognized long before there was any statute on tbe subject, though, as this court has said before, permanent alimony is wholly a creature of tbe written law. That commonly, as here, provides therefor as to tbe divorced wife but not as to tbe divorced husband and the power of tbe court is restricted accordingly. Brenger v. Brenger, 142 Wis. 26, 125 N. W. 109. Since tbe basis for alimony is as indicated, it is most natural that tbe legislature should have considered, as commonly is tbe case, that a divorce for such gross misconduct as that of adultery of tbe wife ends all moral obligation to her and should absolutely terminate all legal obligation for her future support. In general, such duty is continuous. It does not rest, necessarily, on possession of property and is not limited — 315 — by financial circumstances existing at tbe time of tbe divorce, nor does jurisdiction of tbe court over tbe subject end With tbe provision in tbe divorce judgment. Tbat may be revised, from time to time, as justice seems to require, tbe continuity of tbe obligation to support being tbe foundation of it. So tbe legislature expressly provided tbat tbe obligation to support tbe wife, should not necessarily terminate with tbe. separation except in case of tbe divorce being granted upon tbe ground of ber adultery. Tbe provision for a division of property does not wholly rest on tbe obligation stated; but rests, largely, upon tbe fact tbat, in many cases, tbe property possessed by tbe parties is tbe result of their joint efforts, so tbat, equitably, a part of it should go to each, not excluding tbe wife, necessarily, because of ber fault being adultery. Tbe division may be made according to tbe equities of tbe case, as regards tbe origin of tbe possessions, and tbe relations between tbe parties be completely ended as in case of a separation without any jurisdiction to award alimony. Since, as we have heretofore said, no part of a wife’s property which tbe husband bad voluntarily settled upon ber during their married life could be restored to him by tbe court upon a divorce being granted for ber fault, unless tbe statute expressly so provided, 14 Cyc. 591; and statutes, in general, do not so provide and ours does not, except as tbe same is involved in tbe provision for a division of property, it seems tbat tbe legislature may have intended such provision to be general; affording the court a broad discretion so tbat, where justice requires it, especially in case of tbe property possessed by tbe parties being tbe result of their joint efforts, or tbe title thereto being vested in one of them but being derived from tbe other, tbe whole situation may be dealt with. Tbat idea seems to be embodied in tbe closing words of tbe section: “having always due regard to tbe legal and equitable rights of each party, tbe ability of tbe husband, tbe spepial — 316 — estate of tbe wife, the character and situation of the parties and all the circumstances.” This broad field covers much which could not reasonably, in all cases, deprive' the guilty wife, entirely, of any share in the estate possessed by the husband, including that acquired by him from the wife, and the estate derived by the latter from the former. Otherwise, though the husband might have a large estate derived from the wife, there would be no power to award any of it to her and, though the wife might have .a large estate, derived from him, the court would be powerless to award him any of it. It is not difficult to appreciate that a construction of the statute which would necessitate such a result as the one above suggested would, or might, cause great injustice in many cases. Not only the wife might have acquired title to the greater part, or even all, of the joint accumulations of the parties during their married life, and the greater part, or all, as well, of his prior possessions and property derived from sources other than the efforts of either party; but the husband might be likewise circumstanced. The guilt of the wife might be characterized by many palliating circumstances, and yet she could be cast out into the world a most pitiable object of charity, or, on the other hand, her guilt might be characterized by the most aggravating circumstances, and yet she could go free and her unfortunate husband be left, practically, irremediably robbed of the fruits of years of his labor and his property otherwise acquired as well. Would not a construction of the statute which would, or might, produce such results be highly absurd ? Would it not shock one’s conscience to be forced to the conviction that the legislature intended any such thing? It seems so and that is enough to render the statute ambiguous, though obscurity of meaning be not otherwise disclosed, and call upon us to endeavor, industriously, to read, reasonably, out of it some other meaning without “violating the rules of language or of law.” — 317 — There is no more useful rule for perceiving obscurity of meaning in a statute than tbe one that, while ambiguity is an absolute condition of construction, such condition exists when the literal meaning is absurd or unreasonable, for it is always to be presumed, until the contrary unmistakably appears, that the legislature did not so intend. In re Reeseville D. Dist. 156 Wis. 238, 240, 145 N. W. 671. To seek by all rules of construction to avoid such a result does not violate the doctrine of State ex rel. Monroe Co. v. Vernon Co. 148 Wis. 274, 278, 134 N. W. 360; and Schenck v. Sterling E. & C. Co. 151 Wis. 266, 271, 138 N. W. 637, 769, and similar eases, that it is not the function of courts to supply •omissions, or correct mistakes, or make or amend a statute to avoid or produce a particular result. It is one thing to do that and quite another to discover and effectuate the legislative words. If unreasonableness can create ambiguity, it would seem that we have it, manifestly, in the literal sense of the statute before us. Bead as the trial court viewed it, it would be a most inhumane enactment. Hope is held out to the worst of criminals, by divine as well as man-made law,but the idea, advanced here, is that the legislature left for the guilty wife no hope whatever, regardless of circumstances, and that means, no hope whatever for the innocent husband as regards property matters, in the circumstances of this case. We will now turn to the history of our divorce statute. That will throw some light on the question to be solved. Counsel for appellant has, with commendable industry, brought such history fully to our attention. The territorial statute of 1839, at p. 140, § 4, is the beginning of our written law on the particular subj ect. It provided that, in case of a divorce for adultery of the wife, all personal estate should go absolutely to- the husband, and the real estate of the wife should also so go for “life, in case they have had issue born alive of her body during the coverture, — 318 — otherwise during ber natural life only, if be shall survive-her. Provided,, nevertheless, that the court may allow for her sustenance so much out of the personal or real estate, as-they shall judge necessary.” Thus, it will be seen, the real, estate of the wife, whether derived from the husband or not,, was not absolutely taken from her, and ample discretion was vested in the court to provide for her, equitably, out of the-personal and real estate as well. By the Revised Statutes of 1849, the written law, ch. 78,. secs. 24 and 29, took this form: “Sec. 24. Upon every divorce from the bond of matrimony,, for any cause excepting that of adultery committed by the wife, and also upon every divorce from bed and board from any cause, if the estate and property restored or awarded to the wife, shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, or if there be no-such estate and property, the court may further decree to her such pant of the personal estate of the husband, and such- alimony, out of his estate, as it shall deem just and reasonable, having regard to the ability of the husband, and the character and situation of the parties, and all the other circumstances-of the case.” “Sec. 29. The court shall in all cases, subject to the provisions of this chapter, regulate the division and distribution, of the estate, real and personal, between the parties, .and the-allowance for alimony to the wife, or to her and the minor-children committed to her care and custody, according to equity and good conscience, having always due regard to the legal and equitable rights of each party, but nothing contained in this chapter shall authorize the court to divest any party of their title to or interest in any real estate, further than is expressly specified herein.” Thus it will be seen, as pointed out by counsel for appellant, that, notwithstanding a divorce for adultery of the wife and want of power in that case to award her alimony, power was recognized as yet existing to restore and award property to her. The statutes of 1849, without change, became — 319 — ■secs. 24 and 29, cb. Ill, of tbe Kevised Statutes of 1858. •Such sections with sec. 21 of sucb chapter were in this form: “Section 21. Whenever a nullity of a marriage, or a diworce from the bond of matrimony, for any cause excepting’ that of adultery committed by the wife, shall be adjudged, .and when the husband shall be sentenced to imprisonment for life, and also upon every divorce from bed and board, the wife shall be entitled to the immediate possession of all her real estate in like manner as if her husband were dead.” “Section 24. Upon every divorce from the bond of matri-jnony, for any cause excepting that of adultery committed by the wife, and also upon every divorce from bed and board for .any cause, if the estate and property restored or awarded to the wife shall be insufficient for the suitable support and 'maintenance of herself, and such children of the marriage as shall be committed to her care and custody, or if there be no •such estate and property, the court may further adjudge to her such part of the personal estate of the husband, and such .alimony out of his estate, as it shall deem just and reásonable, having regard to the ability of the husband and the character and situation of the parties, and all the other circumstances of the case.” “Section 29. The court shall, in all cases subject to the provisions of this chapter, regulate the division and distribution of the estate, real and personal, between the parties, and the allowance for alimony to the wife, or to her and the minor -children committed to her care and custody, according to equity and good conscience, having always due regard to the legal and equitable rights of each party; but nothing contained in this chapter shall authorize the court to divest any party of their title to or interest in any real estate, further .than is expressly specified herein.” By the revision of 1878, the law took this form, as it now ¡stands: “Section 2364. Upon every divorce from the bond of matrimony, for any cause excepting that of adultery, committed by the wife, and also upon every divorce from bed and board, the court may further adjudge to the wife such alimony out -of the estate of the husband, for her support and maintenance, — 320 — and such allowance for tbe support, maintenance and education of the minor children committed to her care and custody, as it shall deem just and reasonable, or the court may finally divide and distribute the estate, both real and personal, of the husband, and so much of the estate of the wife as shall /have been derived from the husband, between the parties, and divest and transfer the title of any thereof accordingly, having always due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties, and all the circumstances of the case; but no such final division shall impair the power of the court, in respect to revision of allowances for minor children, under the next preceding section.” “Section 2372. No judgment nullifying a marriage, or for a divorce of any kind, shall in any way affect the right of a wife to the possession and control of her separate property, real or personal, except as provided in this chapter; and nothing contained in this chapter shall authorize the court to divest any party of his title in any real estate, further than is expressly provided herein.” The revisers’ notes, which may properly be referred to in determining the legislative intent, inform us that the purpose of sec. 2364 was to combine secs. 24 and 29, ch. Ill, of the Revised Statutes of 1858, and the purpose of sec. 2372 was to supersede sec. 1 of such chapter, and partly, to embrace the last part of sec. 29 thereof, and limit power to transfer title in actions for divorce to that bestowed in the chapter on that subject. Referring to the note to sec. 2372, there is nothing found in sec. 1, ch. Ill, of the old statutes which is embodied in the new one. It was practically dropped out as unnecessary. The new section embraced, substantially, all the former sec. 29, commencing with the words, “But nothing contained in this chapter,” etc., thus confining the power to divest and vest title in divorce actions to the provision in sec. 2364. Turning to sec. 2364, it will be seen to contain, substantially, the provisions of the former sec. 29 in relation to alimony, also in relation to the maintenance and education of — 321 — children and to the distribution of property “baying regard to the ability of the husband and the character and situation of the parties, and all the other circumstances of the case,” those words being changed, evidently, without any purpose to substantially change the meaning, to this form, “having always due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties, and all the circumstances of the case.” On the whole, it seems quite evident that there was no purpose to make any change in the former statute by the revision of 1878 which would give the court less power in respect to property matters than it formerly possessed, which included power, as we read the old statute, sec. 29, to “regulate and distribute the estate, real and personal, of the parties” “subject to the provisions of this chapter” which did not preclude the restoration or awarding of property, in any case, to the divorced wife. In the face of the evident purpose of the revisers and the legislature to combine in sec. 2364 substantially what was in the former secs. 24 and 29, it cannot be that there was any thought of cutting the divorced wife off entirely as to property matters, in case of the separation being adjudged for adultery on her part. Probably the purpose was to make that plain which was somewhat involved before and to make a general provision for the distribution of property, in the discretion of the court, so as to, more effectually than before, protect “the legal and equitable rights of each party” considering “the ability of the husband, the special estate of the wife, the character and situation of the parties, and all the circumstances of the case.” Our conclusion is that the words “excepting that of adultery committed by the wife” do not reach forward and condition -the clause commencing with the words “or the court may finally divide,” etc.; that the unreasonableness of the opposite view, in the light of the history of the matter, should be deemed not to have been within the legislative intent. As we — 322 — have heretofore said, whatever is within the intent of the lawmakers and can, by rules for construction, be read out of the legislative language, is as much within the words of the law as if literally there expressed. To so read such intent therefrom, as we have heretofore said, words inay be rejected which were obviously improperly used, or be read entirely outside of their literal scope, Att’y Gen. v. West Wis. R. Co. 36 Wis. 466, and words may be transposed, or read in place where there by reasonable or necessary inference. Many illustrations of the foregoing are given in Neacy v. Milwaukee Co. 144 Wis. 210, 128 N. W. 1063, before cited. It was there said, supported by abundance of authority and guarding the principle that the court cannot, properly, make the law by construction: “Words necessary to be supplied should be deemed.to be in place by necessary or reasonable implication, and words necessary to be displaced, so far as evidently inadvertently used, to bring out the sense manifestly intended should be regarded as surplusage, and words necessary to be transposed to that end should be given their proper place, all by familiar rules for judicial construction;” and, quoting approvingly from a standard text-writer, further said: “The judicial interpreter may deal with careless and inaccurate words and phrases in the same spirit as a critic deals with an obscure or corrupt text, when satisfied, on solid grounds, from the context or history of the enactment, or from the injustice, inconvenience, or absurdity of the consequences to which it would lead, that the language thus treated does not really express the intention, and that his amendment probably does.” It is appropriate to thus refer here to the broad scope of judicial power in the field of interpretation and construction, even at the expense of some repetition. It seems that, in the section under discussion, the words, “in any case where alimony is not adjudged” may be read as in place by reasonable inference between the words “the court” and the words “may finally divide,” etc., so that the — 323 — subject of division of property will have tbe appearance of having been dealt with independently, instead of being tied back to the vrords “for any cause excepting that of adultery of the wife.” So treating the statute it would read, “Upon every divorce from the bond of matrimony for any cause excepting that of adultery committed by the wife,” etc., “the court may further adjudge to the wife such alimony,” etc.; “or the court may” in any case where alimony is not adjudged “finally divide and distribute the estate, both real and personal, of the husband, and so much of the estate of the wife as shall have been derived from the husband, between the parties, and divest and transfer the title of any thereof accordingly, having always due regard,” etc. So reading the statute, it is relieved from the otherwise unreasonable or absurd character and made to harmonize with the previous history of the divorce laws. It affords the court somewhat more latitude than formerly, in harmony with the progressive tendency to deal humanely and charitably with erring women and unfortunates of either sex. It gives proper vitality to the words, “having always due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties, and all the circumstances of the case.” The reasons advanced by counsel for respondent in support of the judgment complained of, though not specially referred to, have had due attention. They are all, in substance, covered by what has been said. Their infirmity seems clear. No better illustration could be given than the reference to Cole v. Cole, 27 Wis. 531; Hoernig v. Hoernig, 109 Wis. 229, 85 N. W. 346, and other cases to demonstrate that under sec. 2364, Stats., the estate, real and personal, of the wife derived from the husband is to be treated as the property of the husband in exercising the court’s jurisdiction to divide and distribute property. There is no doubt about — 324 — that; but counsel failed to appreciate that such property is only so treated in the event of a division. In this case the court held there could be no such division, and yet proceeded to exercise the jurisdiction conferred to be exercised solely upon such contingency. Without it, the property of the wife, as we have heretofore said, derived by her- through the voluntary act of the husband, is her separate estate, not to be interfered with in any way in a divorce action. There was a suggestion to the contrary in Donovan v. Donovan, 20 Wis. 586, under the Revised Statutes of 1858, where it was intimated that in case of a divorce because of the adultery of the wife, the court had power to divest her title to real estate and confer so .much as equity might require upon her husband. It was a personal suggestion of the justice who wrote the opinion as to a matter not involved in the case. The decision of the court is in harmony with what we have said here. Certainly no such power exists now except in case of a division of property as provided in the statute. Defendant Kanneberg did not appeal, but his interest is so involved with that of appellant that it must abide a decision of the court below in the light of the law as we have declared it. The judgment as to property must be wholly reversed and the cause be remanded for the trial court to exercise its discretion as to a division of property between the parties, Including the property of appellant derived from respondent, keeping in mind that, for the time being, the title to all the property which the court divested appellant of, belongs to her and that the mortgage thereon is valid except as such title and mortgage shall be disturbed on a division of property under the statutes. By the Gourt. — The judgment as to the property of the parties is reversed but as to the divorce it is affirmed, and the cause is remanded for further proceedings in accordance with the opinion, further evidence to be taken if the trial court shall deem that advisable. Costs will be taxed on this appeal in favor of appellant