This installment of our “bygone justice” series provides more cases on marriage and divorce that seem provocative or otherwise intriguing.
Epilepsy
(Estate of Jansa: Dusek v. Onufrey, 169 Wis. 220. Decided April 29, 1919.)
John Jansa had been suffering from periodic epileptic seizures for over a decade when, in 1913, he was judged insane and committed to a hospital. After being declared sane and released over two years later, he traveled to Minneapolis. There he met a young woman, and in October 1916 they married. When Jansa died not long thereafter, his estate was administered and assigned to his widow. This prompted a suit from Jansa’s sisters who contested the validity of his marriage, claiming that (1) he was insane at the time of the marriage, and (2) Wisconsin law prohibited marriage to an epileptic.
When the case reached the supreme court, Justice Marvin Rosenberry’s unanimous opinion made short work of the first issue. “Aside from the fact that Jansa was admittedly an epileptic and that it appears that his mind was to some extent affected, there is little evidence in the case to establish his insanity at the time of the marriage.” Furthermore, “[i]t cannot be said that because Jansa was an epileptic he was therefore insane. It is a matter of common knowledge that epileptics often exhibit great intellectual power.”
The second issue—does Wisconsin law void a marriage to an epileptic—proved more challenging. A statute specified that “[n]o man and woman, either of whom is insane, mentally imbecile, feeble-minded or epileptic, shall intermarry,” and violation of the statute was punishable by a fine or imprisonment. Still, Justice Rosenberry determined, the statute did not require that such marriages be voided automatically. They could be voided, but they did not have to be.
The court reckoned that the latter clause fit Jansa’s case. His widow did not know that he was an epileptic at the time of their marriage, which was “entered into in good faith without any intention on the part of either of the parties thereto to violate the laws of the state of Wisconsin.” In view of the particular circumstances, Justice Rosenberry decided, their union was “voidable rather than void,” and the justices affirmed the validity of Jansa’s marriage.
“Cruel and inhuman treatment”
(Bird v. Bird, 171 Wis. 219. Decided April 6, 1920.)
This case highlights a law providing that when a husband and wife seek a divorce, and both are guilty of conduct that would be grounds for ending their marriage, they are not permitted a divorce. If only one spouse engaged in such behavior, a divorce could be justified—but not when both spouses have transgressed.
Here, a lower court refused to grant a divorce—desired by both husband and wife—after finding each spouse guilty of “cruel and inhuman” treatment. Only the wife appealed to the supreme court, hoping to persuade the justices that she had conducted herself properly regarding two points of contention: (1) her comportment toward a male lodger and (2) her “personal attitude” toward her husband. If she succeeded, then only her husband would be guilty of “cruel and inhuman” treatment (given that he had not appealed the lower court’s ruling), clearing the way for a divorce.
And so it turned out. The justices thought her blameless in interactions with the lodger, and they seemed to share her “personal attitude” toward her husband. He associated “with other women, some of whom were of lewd and immoral character; [and] he frequently told the plaintiff [his wife] of his association with such women and informed her that he had had sexual intercourse with them.” Consequently, a unanimous majority rejected the trial court’s judgment of the wife’s culpability for “nagging the defendant [her husband] and refusing to take meals with him or accompany him to places in public.” With only one spouse now deemed at fault, the lower court was ordered to grant a divorce.
“Divorce from bed and board”
(Krause v. Krause, 177 Wis. 165. Decided May 9, 1922.)
After a brief marriage in 1911, a husband and wife separated and obtained what the statute termed a “divorce from bed and board.” Accordingly, they lived apart, and neither provided any material support to the other. Marital limbo of this sort could continue indefinitely, but a husband and wife each retained the option of an “absolute” (or final) divorce if (1) they had lived separately for at least five years pursuant to the terms of a “divorce from bed and board,” and (2) neither party during that period had sought a reconciliation and revocation of the “divorce from bed and board.”
When, in 1920, the husband filed for an “absolute divorce,” the wife claimed that she desired a reconciliation and had made this clear on several occasions over the past few years. She had attempted to visit him (which he rebuffed) and sent him letters (to which he did not respond). The husband countered that these efforts were insufficient, because she had failed to submit a formal application to revoke the judgment of “divorce from bed and board,” as the statute required.
Affirming the lower court’s ruling, the justices explained that in this instance one could overlook the wife’s failure to make a formal application. Her wish for a reconciliation appeared sincere and “implied a request” for terminating the judgment of “divorce from bed and board.” Thus, “[i]t was not necessary for her to serve a formal demand or request following the technical language of the statute, of which she probably had no knowledge.” The husband was denied a divorce.
Too feebleminded for marriage?
(Hempel v. Hempel, 174 Wis. 332. Decided May 31, 1921.)
A husband asked the circuit court of Shawano County to annul his marriage, claiming that his wife was mentally incompetent and that he had been tricked into marrying her. When the circuit court agreed to void the marriage, his wife appealed to the supreme court.
The justices found no evidence that the husband had been deceived or coerced into the marriage, as the couple had known each other for two years prior to the wedding. Moreover, he lived with his wife for six months following the wedding, used some of her money for household expenses, involved her in handling family accounts, and worked with her on his father’s farmland. They were also sexually active, for she suffered two miscarriages.
Questions regarding the wife’s mental condition drew greater attention, because doctors had testified that she was “feeble-minded” and unfit to raise children. Nonetheless, the justices concluded that this was not the issue. As long as the wife could understand the nature of the marriage contract and consent thereto, the statute was satisfied. Her parental fitness should not figure in the discussion.
Indeed, her ingenuous expressions of love for her husband appeared to move the court, eliciting language from Justice Franz Eschweiler’s unanimous decision unlikely to surface in judicial opinions now: “We doubt if Eve in her pristine innocence or any other of her daughters of today, however mentally gifted, could have better expressed more concisely or accurately the idea of mutual consent to marriage.[1] It is the plaintiff [her husband] who harks us back to the time of Kavvah[2] by his Adam’s plea that the woman gave me of the tree and I did eat, but, without the courage of Adam to stand by his woman, he now, after long tasting, seeks to eschew.”
The circuit court’s judgment was reversed.
Divorce and custody
(Jensen v. Jensen, 168 Wis. 502. Decided February 4, 1919.)
Following a couple’s divorce in Racine, the court awarded custody of their only child (Dorothy, then 4½ years old), to her mother and ordered her father to contribute five dollars per week for the child’s support. Approximately three months later, her mother remarried in Michigan and before long returned to live in Wisconsin with Dorothy and her new husband.
Meanwhile, her first husband had been employed at a government munitions factory in Pennsylvania until an eye injury prevented him from working for several months. During this period, he stopped paying child support and lived with his parents in Racine. Apparently, he sought custody of Dorothy, because the municipal court of Racine County transferred custody to him on the condition that he pay the past-due child support and his former wife’s remaining attorneys’ fees. His parents agreed to give Dorothy a home and help raise her. The principal justification for depriving Dorothy’s mother of custody was the “moral unfitness” she displayed by remarrying less than a year after her divorce—a violation of Wisconsin law.
When she appealed this outcome, the justices ruled in her favor. While common law had long recognized a father’s “paramount right” to custody of his children, the court stated that consideration of a child’s best interest was currently taking precedence in such matters. To be sure, Dorothy’s mother had violated the law by remarrying a few months after her divorce, but that “does not necessarily demonstrate depravity of heart or moral unfitness to bring up a child.” It “does not place her in the same class as the wilful adulteress,” wrote Justice John Winslow for a unanimous majority. With a child’s welfare now the primary concern, the case must be viewed in that light. Regarding “children of tender years, especially girls, preference will ordinarily be given to the mother, other things being equal and she not being unfit. The reasons for this last rule are very obvious and need not be elaborated here.”
Adultery or fornication?
(State v. Roberts, 169 Wis. 570. Decided June 25, 1919.)
After the Milwaukee County district court convicted Roberts of fornication, he appealed to the county municipal court, arguing that, as a married man, he could only be charged in this instance with adultery. Perhaps he chose this strategy in part because the punishment for adultery was less severe, but his avowed claim was that the statute of limitations had run on the offense of adultery. The trial court agreed that Roberts’ marital status dictated the prosecution—adultery, not fornication—and the state appealed to the supreme court.
Writing for a unanimous court, Justice Walter Owen observed that, under common law and often in statutes, the woman’s marital status established the offense. That is, intercourse by a man (married or single) with an unmarried woman constituted fornication, while intercourse by a man (married or single) with a married woman became adultery.[3] Under this interpretation, sexual contact with a woman could not expose a man to charges of both fornication and adultery.
But it could in Wisconsin. The justices readily accepted Roberts’ contention that prior supreme court decisions categorized the facts of his case—sexual relations between a married man and an unmarried woman—as adultery. More challenging was his claim that a married man could not be charged with fornication. The issue centered on how to construe the statutory phrase “Any man who commits fornication with a sane single female …” Did the words “Any man” refer to married as well as single men? They did, the court decided, and thus Roberts could be prosecuted for fornication along with adultery.[4]
Before leaving this case, it’s interesting to note that the statute on fornication considered a woman’s age and “purity” as factors in determining punishment. If the offense involved “a sane single female over the age of sixteen years,” both she and the man could be imprisoned for not more than six months or fined not more than 100 dollars, or both. However, “[a]ny man who commits fornication with a sane female of previous chaste character under the age of twenty-one years shall be punished by imprisonment in the state prison not more than four years or by fine not exceeding two hundred dollars, or by both fine and imprisonment.” The statute did not apply this much harsher punishment to the woman.
Should she get the dower?
(Davis v. Estate of Davis, 167 Wis. 328. Decided April 30, 1918.)
Roughly three months after Levi and Naomi Davis were married, she abandoned him, never to return. Over the years to come, Naomi had 10 children with two other men—and married one of them. When Levi died 43 years after their marriage, she petitioned to claim her dower.[5] A Polk County court concluded that, because Levi and Naomi had never gotten a divorce, she had committed adultery with her second marriage and thus forfeited her dower rights. Thereafter the case traveled through the legal system until it reached the supreme court.
According to common law dating back to at least the Middle Ages, a wife who left her husband to live in an adulterous relationship lost her dower rights.[6] Wisconsin’s statutes approached the issue differently, specifying that divorce (rather than abandonment and adultery) served to bar a widow’s dower. Consequently, the supreme court ruled—but not unanimously—that Naomi retained her dower rights because Levi had never divorced her.
The justices were clearly not delighted with their decision, as the closing paragraph underscored: “Much as the court in this case might desire to find a lawful bar to the dower rights of the petitioner [Naomi], who from an equitable point of view does not deserve charitable consideration, it is not deemed to be within its province to engraft upon our jurisprudence exceptions where the legislature has covered the subject and made none.” In other words, Naomi seemed unworthy of her dower rights and would certainly have lost them had Levi chosen to divorce her. But, “[h]e did not see fit to do so, for reasons not known to us. Whatever they may have been, the only inference we can draw from his conduct is that he did not wish to sever the relation of husband and wife.”
Justice Franz Eschweiler’s dissent contended that the statutory provision regarding divorce merely supplemented the common law principle—that is, either divorce or adulterous abandonment should suffice to bar dower rights. He concluded: “Knowingly she voluntarily abandoned all the relative duties and obligations on her part and lived away from her husband from 1871 until his death in September, 1914. During these forty-three years that she ‘lived her own life’ as the saying is, she bore ten children begotten by others than the deceased. Such an accumulation of cumulative repudiations of the marital obligations ought to require a judicial declaration that her repudiation thereof was entire and absolute.
The faithless ought not now to be rewarded as though faithful.”
[1] Her husband inspired no such rhapsodizing. For instance, Justice Eschweiler noted that, while in the army following their marriage, the husband “wrote to her and made what he admits was a false statement to the effect that he was keeping company with some other woman, and this was, as he says, for the avowed purpose of inducing her not to pester him any longer; that he desired in this manner to get rid of her. He did not visit her after his return from the army, and during the pendency of this action paid a portion only of the alimony provided for by order of the court.”
[2] “Kavvah” is an English transliteration of the Hebrew name for Eve. The sentence refers to the Biblical scene where Adam, when confronted by God, blames Eve for the fact that he ate the forbidden fruit in the Garden of Eden. Justice Eschweiler completes the sentence by noting that at least Adam did not try to abandon Eve.
[3] This supposes that some other crime, such as rape, was not at issue.
[4] The decision’s concluding sentence revealed considerable aversion for Roberts: “The small measure of punishment to which the defendant in error [Roberts] is amenable [regarding the charge of adultery, not fornication] but scantily expiates his flagrant and notorious violations of marital obligations, which are responsible for the destruction of one life and the ruination of another.”
[5] Dower refers to the portion of a deceased husband’s property to which a widow would normally be entitled. She also claimed a “widow’s allowance” (paid to a widow from a deceased husband’s estate to cover basic living expenses immediately following the husband’s death).
[6] This assumed that she was not subsequently reconciled with her husband.
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