Opinion
May 5, 1958 —
June 3, 1958.
APPEAL from an order of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by M. Michael Essin of Milwaukee.
For the respondent there was a brief and oral argument by Lawrence D. Gillick of Milwaukee.
The plaintiff-appellant commenced an action in November, 1954, for divorce on the grounds of cruel and inhuman treatment praying for an absolute divorce and for custody of two minor daughters. The defendant-respondent answered specifically denying the allegations of cruel and inhuman treatment, counterclaimed for a divorce on the grounds of cruel and inhuman treatment by the appellant wife, and prayed for a dismissal of the appellant's complaint, for a limited divorce on his counterclaim, and for custody of the children.
The counterclaim alleges the jurisdictional facts, that the parties were married at Waukegan, Illinois, on November 22, 1950; that two daughters were born of the marriage, and that the parties lived in West Allis, Wisconsin.
In paragraph 11 of the counterclaim the respondent alleged:
"11. During the course of the married life of the parties the plaintiff has so conducted herself that her treatment of the defendant has been cruel and inhuman and in particular defendant alleges that:
"(a) Plaintiff openly professed and proclaimed her devotion and allegiance to the Communist party and refused to give up her activities on behalf of the Communist party even though it interfered with the family life of plaintiff and defendant.
"(b) Plaintiff's membership in the Communist party required her to and she did absent herself from the home of the parties on many occasions and without any explanation of her whereabouts during her absence.
"(c) Plaintiff's membership in the Communist party caused her to associate with many persons and to attend gatherings at which such persons were present that were abhorrent to the defendant and in spite of the urging and pleading of defendant, plaintiff refused to discontinue such associations or attendance at such gatherings.
"(d) Because of plaintiff's devotion to the interests of the Communist party, plaintiff attempted to interfere with and prevent defendant from associating with or meeting with any person or persons not connected with the Communist party.
"(e) Because defendant was interested in and active in the support of the Congress of Industrial Organizations, hereinafter referred to as the C.I.O., which is a bona fide labor organization and because defendant associated with C.I.O. personnel and because plaintiff knew that the C.I.O. and the C.I.O. personnel were opposed to the Communist party and all that it represents, plaintiff violently resented and protested against any contact with or activity on behalf of the C.I.O. by defendant and caused numerous violent arguments over his activity and plaintiff did so at the urging and direction of the Communist party.
"(f) Plaintiff was so devoted to the Communist party that plaintiff on many occasions advised defendant that the Communist party was her life, that it would always be her life, and nothing could change it.
"(g) That in order to have the marriage of the parties blessed in the Roman Catholic Church, of which defendant is a member, plaintiff took a course of instructions and promised to raise the children of the parties as Catholics but plaintiff now refuses to have the children of the parties raised in any religion and declares that she merely went through the formalities and made the promises to satisfy the parents and relatives of the defendant."
Paragraph 12 of the counterclaim alleges that as a result of the acts and conduct of the plaintiff, the defendant has suffered grievous mental strain and has become emotionally and physically disturbed, thereby affecting his work and that he believes it is impossible for him to continue to live with the plaintiff.
Paragraph 13 alleges that the defendant believes the interests of the minor children will be adversely affected and that it will be impossible for them to be raised properly because of the plaintiff's devotion and allegiance to the Communist party.
In March, 1956, the plaintiff moved to strike out parts of the answer and all of paragraphs 11 and 13 of the counterclaim on the grounds that such allegations were either irrelevant or scandalous, or both, and were inserted for the sole purpose of creating prejudice against the plaintiff. This motion was denied by the trial court without prejudice.
In February, 1957, after an adverse examination of the defendant, the plaintiff brought a motion for summary judgment to dismiss the counterclaim on the ground that most of the allegations made in the counterclaim were known to the respondent prior to the marriage and therefore the counterclaim had no merit. In the plaintiff's affidavit in support of her motion, parts of the adverse examination were set forth. In effect the defendant testified that when he joined the Communist party in 1949 he already knew his wife. He had first met her at meetings of the Young Progressives of America. His first contact with the plaintiff was in the Youth Group of the Communist party of Milwaukee in November or December of 1949. The defendant knew that the plaintiff was a member of the Communist party and had attended quite a few meetings and classes with her in the party prior to the marriage. The defendant also testified that he was satisfied with his wife's handling of the children prior to April, 1954. At that time defendant asked his wife to leave the Communist party because in a year or so the oldest daughter would be ready for Catholic school. This the plaintiff refused to do. When the defendant married the plaintiff he knew she was not a believer in the Catholic Church.
In the defendant's affidavit in opposition to the motion he states the plaintiff allowed her membership and activities in the Communist party to destroy the marriage relationship, a result he did not know or could not be expected to know at the time of the marriage. That the plaintiff prior to marriage had promised in the event a conflict arose between the interests of the marriage and her membership and activities in the Communist party the plaintiff would sever her membership and activities. In breach of this promise the plaintiff placed her interests and activities in the Communist party above all other considerations, including the marital relationship. It is further stated in the affidavit that the plaintiff caused numerous arguments over defendant's activities in the C.I.O. labor organization, threatened to break up the marriage solely on the basis that in the best interests of the Communist party the C.I.O. should be opposed; that in discussing any problems wherein there was a conflict between the interests of the party and the marriage relationship, plaintiff took the position that her only concern was that of the Communist party and that that was her life and the defendant would have to accept her position.
The defendant admitted knowledge of the plaintiff's membership in the Communist party prior to the marriage and states he did not know or could not be expected to know that the plaintiff would allow her activities on behalf of and membership in the Communist party to interfere with and destroy the marriage relationship. Defendant disclaims any allegations concerning the plaintiff's religious beliefs but states that after the marriage the plaintiff promised to raise the children in the Catholic religion and then later refused. This is cited to demonstrate that the appellant allowed her beliefs in the Communist party to interfere with the harmony of the marriage relationship.
Upon the pleadings and affidavits and after hearing argument of counsel the circuit court concluded there were issues of fact presented whether or not the Communist activities interfered with the marital relationship and destroyed the harmony of the home.
From the order denying the motion for summary judgment to dismiss the counterclaim the plaintiff has appealed.
The question involved is whether there are any substantial issues of fact to be tried. The plaintiff-appellant contends that there is no merit to the counterclaim because the respondent-defendant had knowledge of his wife's membership in the Communist party and of her activities. The defendant contends that while he had knowledge of such membership and activities he did not know, and could not be expected to know, that they would interfere with the marital relationship and destroy the harmony of the family. The knowledge the respondent had at the time of marriage was of: his wife's prior membership and activities in the Communist party, not her treatment of him after marriage. The appellant's position, if adopted, would lead to some absurd results in divorce actions. Marriage places duties and responsibilities upon the parties which should not be shirked or violated. It is the acts of a spouse during marriage that constitute the grounds for divorce.
The appellant's main argument is that as a matter of law membership in the Communist party and different religious beliefs do not constitute grounds for divorce. The respondent contends this is not the issue but it is the activities and conduct of the appellant and its effect on him and on the marital relationship that constitutes cruel and inhuman treatment.
Not all the allegations in the counterclaim and statements in the supporting affidavit are statements of facts. However, we cannot agree with the contention of the appellant that the issue is confined to membership in the Communist party and the differing religious beliefs. There are allegations of fact in the counterclaim and in the affidavit in support thereof that the activities and course of conduct of the appellant, if proven, would amount to cruel and inhuman treatment under sec. 247.08 of the Wisconsin statutes. Some of the issues of fact are that the plaintiff's activities in the Communist party interfered with and destroyed the family life; her unexplained absences from the home; her association with persons abhorrent to the defendant; her interference with the defendant's associations with others; the violent arguments between the plaintiff and the defendant, and the plaintiff's statement that the Communist party was her life, that it would always be her life, and nothing could change it.
The originating cause of the cruel and inhuman treatment is not so important as the nature and character of the treatment itself in determining the question of whether the treatment by a spouse has been cruel and inhuman. Krauss v. Krauss (1927), 163 La. 218, 111 So. 683, 58 A.L.R. 461, and annotation at page 462.
It is not ideas but the acts which constitute cruel and inhuman treatment. A person has the right to think freely in this country. But the nature of the overt acts and especially their effect on the spouse caused by or resulting from ideas and beliefs, but not the ideas and beliefs per se, are the important elements of cruel and inhuman treatment. The appellant relies on Donaldson v. Donaldson (1951), 38 Wn.2d 748, 231 P.2d 607, and Braun v. Braun (1948), 31 Wn.2d 468, 197 P.2d 442. Both of these cases are to the effect that membership in the Communist party would not constitute cruelty per se and be grounds in itself for divorce. These cases are not in point as the allegations in the counterclaim go beyond mere membership in the Communist party and allege treatment of the respondent by the appellant which has its origin or reason in such membership. The same treatment of the respondent by the appellant, if proved, originating from any other source or reason would constitute, if proved, cruel and inhuman treatment. The question of whether membership in the Communist party per se would constitute cruel and inhuman treatment is not before this court.
Respondent has met the requirement of sec. 270.635 (2) and (7), Stats., showing facts which are sufficient to entitle him to a trial since there are substantial issues of fact which should be tried. In Ryan v. Berger (1949), 256 Wis. 281, 40 N.W.2d 501, this court said, page 285:
"The power of the courts under summary-judgment statute is drastic and should be applied only when it is perfectly plain that there is no substantial issue to be tried." See also Prime Mfg. Co. v. A. F. Gallun Sons Corp. (1938), 229 Wis. 348, 281 N.W. 697.
It was said by this court in Madigan v. Onalaska (1950), 256 Wis. 398, 401, 41 N.W.2d 206:
"The procedure provided by sec. 270.635, Stats., the summary-judgment statute, is not calculated to supplant the demurrer or motion to make pleadings more definite and certain. The proceeding is aimed at a sham pleading which is without merit. McLoughlin v. Malnar, supra. Under that statute the court is concerned with whether an issue exists which ought to be tried. If the court upon the showing made deems that sufficient appears to entitle the other party to a trial or that by demurrer or motion to make a pleading more definite and certain the real issue may be brought forward, the motion for summary judgment should be denied. For then, `the trial, and not the pleadings, must settle the dispute in [the] case.'" Van Der Werken v. Katz (1929), 227 App. Div. 820, 237 N.Y. Supp. 913.
The summary-judgment statute cannot be utilized as a substitute for a regular trial. If there is any substantial issue of fact which the plaintiff is entitled to have determined the defendant's motion for summary judgment to dismiss the complaint must be denied. Batson v. Nichols (1951), 258 Wis. 356, 46 N.W.2d 192; Fredrickson v. Kabat (1951), 260 Wis. 201, 50 N.W.2d 381. This rule applies likewise to the situation where the plaintiff moves for summary judgment to dismiss the defendant's counterclaim. Sec. 270.635 (7), Stats., provides: "This section is applicable to counterclaims the same as though they were independent actions; . . ." There are substantial issues of fact which the defendant-respondent is entitled to have determined on his counterclaim.
No error was committed by the trial court in denying the motion for summary judgment to dismiss the counterclaim.
By the Court. — Order affirmed.