#### Kohl, Appellant, vs. Kohl, Respondent.

*March 16*—

October *4, 1910.*

*Divorce: Gruel and inhuman treatment: Division of ‘property: Disregarding stipulation.*

1. Ill treatment of one spouse by tbe other which, though not oper- . ating directly on the body, is of a nature well calculated to inflict pain and suffering in body and mind and thus to produce injurious results which make cohabitation dangerous to the former’s health and life and to render it wholly impracticable for him to properly discharge his marital obligations, is cruel and inhuman treatment in the law and constitutes ground for divorce.

2. Upon the granting of a divorce to the husband on the ground of cruel treatment by the wife, a division of his property by which the wife was awarded $1,200 in money, the household goods, and $3 per week to be paid to her by tbe husband for support of the children during minority, one of them being five years old and the other seventeen and able to sustain herself, and the husband was to retain the homestead and other property, of the probable market value of about $2,500 in all, out of which he must pay the costs and expenses of the litigation, is affirmed on an appeal by the wife.

3. A stipulation in such case by which the husband, not knowing that the wife had possession of $1,200 of his money, had agreed; to give her the homestead and pay her $3 per week for the support of the children, was properly disregarded by the trial court, upon refusal of the wife to pay over $1,200 to the husband.

Appeal from a judgment of tbe circuit court for Rond du Lac county: Chestee A. Rowlee, Circuit Judge.

*Affirmed.*

*215Plaintiff brought an action for divorce from the defendant, alleging cruel and inhuman treatment toward her; nonsupport, although the defendant was amply able to support her and their minor children; defendant's uncontrollable temper, which made it dangerous for her to live with him; and that she had faithfully discharged her duties as wife and had observed her marriage vows during the whole of their married life. The defendant answered denying the allegations of the complaint charging grounds for a divorce, and alleging a counterclaim for divorce on the ground of cruel and inhuman, treatment. The action was tried in the county court of Fond du Lac county, and at the conclusion of the trial the court granted a new trial. Upon an affidavit of prejudice filed by the defendant the action was removed to the circuit court for Fond du Lac county. Before the trial of the action the parties entered into a stipulation whereby, in the event of the defendant being found to be entitled to a divorce and of a. final division of the defendant’s property being decreed, then the plaintiff was to have the homestead of the parties absolutely and the care and custody of the minor children. By this stipulation the defendant also agrees “to pay $3 per week as and for alimony for said-minor children until Eunice-reaches twenty-one years of age and Fayette reaches the age of twenty-one.”

No evidence was introduced in behalf of the plaintiff, and upon the trial of the action the evidence was confined to the cause of action set up in the defendant’s counterclaim. It appeared that the troubles of the parties related to the refusal of the wife to sign papers which would enable the defendant to make an advantageous trade of some of his property and to a transaction in which the plaintiff had obtained possession of between $1,600 and $1,700 belonging to the defendant through signing some papers enabling the defendant to trade a piece of his property. Thereafter she persistently refused to sign papers to enable the defendant to sell or trade any of *216bis property, or to enable bim to raise money for use in bis business, or to save parcels thereof from threatened loss by foreclosure of liens against them. Plaintiff also refused to allow the defendant to have the use of any of the money in her possession for the payment of his debts or for use in his business.

In their domestic life, also, the evidence tended to show that the plaintiff had adopted an attitude toward the defendant and a course of conduct which made the defendant’s life miserable. She neglected the cooking of his meals and at times refused to have any meals prepared. As to his bed and room, sometimes she would care for them and sometimes the defendant would be compelled to care for them himself. When the defendant, through an accident, lost part of his hand, the plaintiff treated him spitefully and maliciously, and declared, “That’s good enough for him.” While suffering from this injury she refused to nurse or care for him, prepared no food for him, and persisted in annoying and worrying him by humming and singing, though requested not to so spitefully abuse him while he was suffering and in great pain. Plaintiff persisted in such conduct and made it necessary for the defendant to secure others to nurse and care for him and to prepare his food. He was ultimately, after his recovery, forced to go to the home of his son for board. On one occasion plaintiff locked the door of the house against him, refused to open it, and when he forced the door he found that she had removed bedding from his bed and had placed it in her own bed. When the defendant went to her room for it she struck him, and because the defendant then slapped her she caused his arrest. Upon his confession to this act in court he was fined. The defendant was also arrested upon the plaintiff’s complaint on the ground of nonsupport and was put under bonds to keep the peace. There was evidence that the plaintiff used vile and abusive language to the defendant in the presence of the minor children and spoke of *217Tim in terms wbicb tended, to deprive bim of tbeir regard and respect. Tbe defendant testified tbat tbe plaintiff took money from bis pockets, was extravagant, and frequently accused bim of infidelity.

During tbe trial tbe court questioned plaintiff’s sanity, and thereupon sbe was examined by physicians and was declared sane by them. Upon being examined as to what disposition sbe bad made of tbe $1,600 or $1,700 obtained from her bus-band, sbe claimed to have none of it and tbat sbe bad used it for her support; but tbe evidence disclosed tbat shortly before tbe commencement of tbe action sbe bad withdrawn $1,400 from banks.

Tbe court found tbat tbe plaintiff bad at least $1,200 of tbe defendant’s money in her possession. It was also found from tbe evidence tbat tbe total value of tbe defendant’s property, over and above incumbrances of $1,200 upon it, was $4,400, and tbat be owed unsecured debts to tbe amount of $1,400. Tbe court found tbat an absolute divorce should be granted to tbe defendant, but, on tbe ground tbat a division of tbe property under tbe stipulation between tbe parties would be unjust to tbe creditors of tbe defendant, refused to make a final division of tbe defendant’s property in accordance with tbe stipulation. Tbe court directed in its findings tbat tbe household furniture should go to tbe plaintiff, except tbat tbe defendant might remove and have tbe furniture and bedding situated in the room occupied by bim; tbat if the plaintiff should within thirty days turn over and pay to tbe defendant tbe $1,200 wbicb sbe bad retained out of tbe defendant’s property, as above stated, then tbe stipulation for tbe distribution of tbe husband’s estate should stand approved, but in case of her default to do so tbe stipulation should be disregarded and tbe husband’s estate should then be distributed by awarding her this sum of money out of bis estate and tbe household goods, as above specified; and tbat tbe defendant should pay tbe plaintiff $3 a week for tbe *218maintenance of the minor children during their minority. One of these children was then seventeen years old and able to sustain herself. ■ The other was five years old. Plaintiff did not pay over the $1,200 and judgment was entered accordingly. This is an appeal from the judgment.

*J. M. Gooding,*for the appellant.

Eor the respondent there was a brief by *Morse •& Williams,*and oral argument by *D. 0. Williams.*

The following opinion was filed April 5, 1910:

SiebecKer., J.

The court found that the allegations of the defendant’s counterclaim were sustained by the evidence and awarded judgment thereon divorcing the parties. The plaintiff’s contention is that this was erroneous because the facts found do not constitute cruel and inhuman treatment authorizing the granting of a divorce. The facts found clearly show that the plaintiff was guilty of wilfully and persistently causing defendant unnecessary suffering in body and mind, and that as a natural consequence thereof cohabitation with the plaintiff became dangerous to the defendant’s health and subversive of the marriage relation by making it impossible for him to discharge the duties imposed thereby. Though the ill treatment may not be said to have operated directly on the body, it however was of a *nature*well calculated to inflict pain and suffering in body and mind, and thus to produce injurious results which made cohabitation dangerous to the defendant’s health and life and to render it wholly impracticable for him to properly discharge his marital obligations. When the treatment of either spouse by the other so affects the injured party and the marriage relation, it is cruel and inhuman treatment in the law and constitutes grounds for a divorce. We think the facts found establish a good cause for a divorce, and that the court was justified in dissolving the marriage bonds.

It is claimed that the court erred in not approving the *219stipulation of tbe parties for a final division and distribution of tbe defendant’s property. It appears tbat tbe parties, made this stipulation when tbe defendant did not know tbat tbe plaintiff still bad $1,200 of bis money in ber possession. Tbe husband’s estate consisted of a homestead of an estimated value of $3,500; other real estate of an estimated value of about $2,900, which was incumbered by claims amounting-to $1,200; personal property, aside from tbe household goods,, of tbe probable value of $200; and tbe money which tbe plaintiff held. It also appears tbat the defendant owed $1,400 of unsecured debts. Tbe stipulation awarded tbe plaintiff tbe homestead and obligated tbe defendant to pay tbe plaintiff $3 a week as support.for the minor children, one of whom, at tbe time of tbe entry of judgment, was seventeen years of age and tbe other five.

Upon tbe trial of tbe cause tbe court expressed its disapproval of this division of tbe defendant’s estate, but suggested tbat if tbe plaintiff would voluntarily pay tbe $1,200 cash in ber possession to tbe defendant tbe stipulation would be approved. This tbe plaintiff refused to do. Tbe court thereupon refused approval of tbe stipulated division of tbe defendant’s estate and adjudged tbat tbe plaintiff be awarded tbe $1,200 in money and $3 per week for tbe support of tbe minor children during their minority, one of whom was then seventeen years of age and abundántly able to support herself. By this division tbe defendant retained bis homestead and some personal property, the equity in bis northern Wisconsin land, and a vacant lot in Ripon. .While these equities are probably of some value to tbe defendant they cannot be held to amount in value to tbe estimated market value less tbe incumbrances, and it seems tbat by charging tbe defendant with these equities at a reasonable amount and with tbe other-property allowed him, and deducting therefrom bis present indebtedness, it will leave him, in round numbers, two thirds of his property, of a probable market value of not to exceed *220.$2,500. Out of this be must pay tbe costs and expenses of this litigation. We find this to be a just division of tbe defendant’s estate, in tbe light of tbe fact tbat tbe divorce was .granted because of plaintiff’s misconduct toward and ill treatment of tbe defendant and of all tbe other accompanying facts ■and circumstances of tbe case. Upon tbe whole record tbe judgment of tbe circuit court must be approved.

Tbe plaintiff moved this court for an allowance of suit money, temporary alimony, and support for tbe minor cbil-•dren. We consider tbat an allowance of $50 to her as suit money in prosecuting this appeal and a determination tbat she recover her disbursements for printing tbe case and brief "will be just and equitable. Tbe respondent is to pay tbe .clerk’s fees in this court.

*By the Court.*— It is so ordered.

A motion for a rehearing was denied October I, 1910.