Reimer v. Reimer

7 Wis. 2d 146 (1959)

REIMER, Respondent, v. REIMER, Appellant.

Supreme Court of Wisconsin.

April 6, 1959.

May 5, 1959.

*147 For the appellant there was a brief and oral argument by Roman H. Papka of Milwaukee.

For the respondent there was a brief by Nathan W. Heller and oral argument by Mr. Roland J. Steinle, Jr., and Mr. Heller, both of Milwaukee.

BROADFOOT, J.

Upon this appeal no questions are raised as to the provisions of the judgment with reference to custody of the children, the division of property, or of the payments directed to be made by the plaintiff for support money and alimony. The defendant contends: (1) That the evidence does not support a finding that cruel and inhuman treatment had been practiced by the defendant wife toward the plaintiff husband; (2) that the plaintiff's cause of action for divorce is barred by the rule of condonation as a result of cohabitation and other condoning conduct on his part; and (3) that the plaintiff husband's own cruel conduct toward the defendant wife bars his right to a divorce under the doctrine of recrimination.

These contentions must be considered in the light of certain fundamental rules that need no citation of authority. Findings of fact by a trial court are not to be set aside unless they are against the great weight and clear preponderance of the evidence. Where there is a dispute in the testimony the trier of the facts is the judge of the weight and credibility to be accorded to the testimony of the witnesses. In reviewing divorce cases this court relies heavily upon the findings by the trial court.

*148 A careful review of the record shows that there is evidence to support the findings of the trial court as to cruel and inhuman treatment and that the findings are not against the great weight and clear preponderance of the evidence. A condensed recital of the testimony by the various witnesses called will serve no useful purpose. It will be better for the parties and for their children if this is not done.

As to the issue of condonation there was also conflicting testimony. The defendant testified that the parties had marital relations upon one occasion during the pendency of the action. This was denied by the plaintiff. It is admitted that the plaintiff gave his wife gifts for Christmas and on her birthday while the action was pending; that he paid his wife more than he was directed to pay in the order fixing temporary alimony; that he bought a second car so that each of the parties would have one to drive; and that there were negotiations tending to bring about a reconciliation. The defendant claims that these acts in themselves constitute condonation. The trial court determined that the defendant, who had the burden of proof upon the issue of condonation, had failed to establish the same as an affirmative defense. There was testimony to support the finding and we cannot disturb it.

The same may be said about the defense of recrimination. There was evidence to support the determination of the trial court on this issue. That the evidence, if viewed in a light most favorable to the defendant, might sustain a contrary determination is, of course, immaterial.

The plaintiff failed to file his briefs until April 6, 1959, the day the case was argued in this court. Based upon that fact the defendant moved for a reversal of the judgment under Supreme Court Rules 32 and 35, secs. 251.32, 251.35, *149 Stats. The motion is denied, but plaintiff is denied costs in this court.

By the Court.Judgment affirmed. No costs to be taxed in this court.