Summary
interpreting Wis. Stat. § 247.101, which provided that the circuit court “may grant a judgment of divorce or legal separation to the party whose equities on the whole are found to be superior”
Summary of this case from Heritage Farms, Inc. v. Markel Ins. Co.Opinion
No. 75-298.
Argued May 8, 1977. —
Decided June 1, 1977.
APPEAL from a judgment of the county court for Sauk County: HARLAND H. HILL, Judge. Affirmed.
For the appellant there was a brief by Hill, Quale, Hartmann, Bohl Evenson, and oral argument by James Evenson, all of Baraboo.
For the respondent there was a brief and oral argument by Vaughn S. Conway of Baraboo.
Action for divorce commenced by the respondent-wife, Margaret Hitchcock, against appellant-husband, Gerald M. Hitchcock, based upon cruel and inhuman treatment. The husband did not counterclaim, but simply answered denying that he had pursued a course of cruel and inhuman treatment and requesting that the complaint be dismissed.
On October 7, 1974, trial was held and the plaintiff wife testified as to numerous problems and incidents in the marriage in support of her claim of cruel and inhuman treatment. Since the facts surrounding the wife's claim are not relevant to the matters upon appeal, there is no need to recite them herein.
The defendant husband testified, generally refuting the testimony of his wife. In addition, however, the defendant presented testimony concerning adulterous conduct on the part of the plaintiff. The presentation of such evidence was in support of his request for dismissal of the complaint upon the doctrine of recrimination. The husband testified that on one occasion about seven years prior to the divorce action he had returned home unexpectedly and discovered the plaintiff unclothed in the bedroom with a man. During her direct testimony, the plaintiff wife admitted that this incident had taken place, but stated that it was the only time that it happened and that she continued to live with her husband and have marital relations after the incident.
Dawn Osgood also testified for the husband regarding adulterous conduct of the plaintiff. Mr. Osgood testified that on April 10, 1974, approximately two months after the divorce action was commenced and the parties had separated, he and the defendant husband had gone to the plaintiff's trailer home and, looking through a window of the home, observed the plaintiff in bed making love with a man. The defendant gave no testimony regarding this incident. The wife denied any adulterous conduct other than the incident seven years earlier.
On October 21, 1974, the adjourned date for limited additional testimony, the defendant moved to amend his answer to allege the adulterous incident of April 10, 1974. This motion was opposed upon the ground that the motion was not timely and that the amendment would prejudice the plaintiff. The plaintiff further claimed that the defense of recrimination could not be raised by the defendant because that defense was abolished by a 1971 amendment of sec. 247.101, Stats. At the close of the trial on October 21, the trial court took the motion to amend and the merits of the case under advisement.
On May 5, 1975, the trial court rendered its decision from the bench. The court concluded that the plaintiff had established cruel and inhuman treatment justifying a grant of divorce from the defendant. The court further determined that the legislature had not excluded the doctrine of recrimination from application in the case. However, the trial court denied the defendant's motion to amend his answer upon the grounds that such motion was not timely made and that the amendment would be prejudicial to the plaintiff. Having denied the motion to amend, the court held that the defendant had failed to properly plead the defense of recrimination, and accordingly, that the evidence concerning adulterous conduct of the wife could not be considered. Judgment granting an absolute divorce to the plaintiff was then entered. The defendant appeals from the judgment claiming the trial court erred in refusing to apply the doctrine of recrimination.
Three issues are presented on this appeal:
1. Was the defense of recrimination abolished by the 1971 amendment of sec. 247.101, Stats?
2. If not abolished, may recrimination be raised where it has not been specifically pleaded?
3. If recrimination must be pleaded, did the trial court abuse its discretion by denying the defendant's motion to amend his answer to plead adulterous conduct on the part of the plaintiff?
Recrimination as a Defense
This court has recognized the doctrine of recrimination in divorce cases. Under this doctrine, if the conduct of both parties has been such as to furnish grounds for divorce, neither of the parties is entitled to relief. Gauer v. Gauer, 34 Wis.2d 451, 457, 149 N.W.2d 533 (1967); Bahr v. Bahr, 272 Wis. 323, 325, 75 N.W.2d 301 (1956).
In the instant case, the defendant sought to apply the doctrine of recrimination as a bar to the wife's action for divorce by proving the wife had engaged in adulterous conduct. The husband made no counterclaim for divorce, requesting only a dismissal of the complaint. The wife contends that the doctrine of recrimination has been abolished in Wisconsin by the amendment of sec. 247.101, Stats., in Laws of 1971, ch. 220, sec. 7.
Sec. 247.101, Stats., was originally enacted in response to this court's decision in Bahr v. Bahr, supra. In that case both husband and wife claimed for divorce upon the grounds of cruel and inhuman treatment. The trial court found both parties were guilty of such conduct, but granted the divorce to the plaintiff wife. This court reversed on the ground that the doctrine of recrimination barred a divorce to either party.
Shortly after the Bahr case, the legislature created sec. 247.101, Laws of 1959, ch. 595, sec. 60. That section, as originally enacted, provided:
"247.101 Recrimination, when applicable; comparative rectitude. The equitable doctrine that the court shall not aid a wrongdoer is applicable to any party suing for divorce under s. 247.01(1) to (5), except where it appears from the evidence that both parties have been guilty of misconduct sufficiently grave to constitute cause for divorce, the court may in its discretion grant a judgment of legal separation to the party whose equities on the whole are found to be superior."
By the enactment of this section, the legislature, while for the first time statutorily recognizing the doctrine of recrimination, destroyed the absolute nature of recrimination as a complete defense to be applied without discretion. Thus, in a case such as Bahr v. Bahr, supra, where the conduct of both parties was sufficient to constitute grounds for divorce, the trial court, although it could, was no longer required to deny relief upon the recrimination doctrine; it could in its discretion apply the doctrine of comparative rectitude and grant a legal separation.
By ch. 225, Laws of 1969, the legislature amended sec. 247.101 to apply not only to divorce actions, but also to actions for legal separation. In addition, the phrase "in its discretion" was deleted.
Finally, as stated above, sec. 247.101 was amended by Laws of 1971, ch. 220, sec. 7. Sec. 247.101 presently provides:
"247.101 Comparative rectitude. In any action for divorce or legal separation under s. 247.07(1) to (5) where it appears from the evidence that both parties have been guilty of misconduct sufficiently grave to constitute cause for divorce or legal separation, the court may grant a judgment of divorce or legal separation to the party whose equities on the whole are found to be superior. Neither the doctrine of comparative rectitude nor misconduct of a party shall be considered in actions brought under s. 247.07(6) (7) and (8)."
We think this statute clearly provides for the application of the doctrine of comparative rectitude in divorce cases. The question relative to the instant case is what effect this provision has upon the doctrine of recrimination. Sec. 247.101 may be viewed as affecting the recrimination doctrine in one of two ways. The first view is that this section, by providing for the application of comparative rectitude has abolished recrimination as a defense. The other view is that since the statute provides the court "may" grant a divorce to the party with superior equities, the trial court has discretion to apply comparative rectitude and thus recrimination is not abolished but simply changed from an absolute to a discretionary defense. Under this second view, the trial judge, in a case where the conduct of both parties warranted divorce, would have discretion to deny a divorce to both parties, or grant a divorce to the party with superior equities.
The determination of the above question depends upon whether, under the statute, the trial judge has discretion to apply the doctrine of comparative rectitude. Although in the statute the word "may" is used, we hold that the statute requires the application of comparative rectitude and thus abolishes the doctrine of recrimination.
"While generally the word `may' in a statute will be construed as permissive, it will not be so construed where different construction is demanded by the statute in order to carry out the intent of the legislature." Schmidt v. Department of Local Affairs Development, 39 Wis.2d 46, 53, 158 N.W.2d 306 (1968). The 1971 amendment of sec. 947.101 specifically deleted the first portion of the statute which provided that the doctrine of recrimination was applicable in divorce actions. The statute, as amended, provides simply for the application of comparative. rectitude. Accompanying 1971 Senate Bill No. 241, proposing the amendment of sec. 247.101, is an analysis by the Legislative Reference Bureau which states: "The doctrine of recrimination as a bar to divorce proceedings is revoked and replaced by the doctrine of comparative rectitude." The legislature intended that the doctrine of recrimination be abolished. To hold that the trial court has discretion to apply comparative rectitude would defeat this legislative intent. Therefore, under sec. 247.101 the trial court is required to apply the doctrine of comparative rectitude, and the doctrine of recrimination is abolished.
The defendant-appellant does not directly dispute the above conclusion, but argues that where the defendant has not counterclaimed for divorce, as in the instant case, sec. 247.101 and the doctrine of comparative rectitude are not applicable, and therefore, under such circumstances, the recrimination doctrine is not abolished. The trial court agreed with this contention. We disagree.
In support of his position that sec. 247.101 does not apply and recrimination is not abolished under the facts of the instant case, the defendant makes one argument. He contends that if recrimination is abolished and replaced by comparative rectitude in all cases, the trial court in some cases, such as the instant one, would be compelled to make the illogical disposition of granting a divorce to a defendant who proves conduct of plaintiff sufficient to constitute grounds for divorce, but who does not seek a divorce. Such a result, however, could never occur under the interpretation that sec. 247.101 abolishes the doctrine of recrimination. Where recrimination is not a defense, a defendant who does not counterclaim for divorce has no basis upon which to present evidence showing the plaintiff guilty of conduct which constitutes grounds for divorce. Under the circumstances, the trial court would not properly have before it evidence upon which to apply the doctrine of comparative rectitude, and therefore, contrary to defendant's contention here, a judgment of divorce could not be granted to a defendant who does not seek it.
The trial court in this case concluded that the evidence offered by the defendant, of adulterous conduct on the part of the plaintiff, could not be considered because the defendant did not properly plead the facts sought to be proved. We agree with the trial court's conclusion that the evidence could not be considered, but for the reason that recrimination is abolished as a defense and the defendant did not counterclaim for divorce. In accordance with the above conclusion, the trial court's judgment of absolute divorce must be affirmed.
Since the judgment of divorce is affirmed, we do not reach the remaining two issues relating to pleading the defense of recrimination, abolished by sec. 247.101.
By the Court. — Judgment affirmed.