HERZOG VS. HERZOG (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

The husband obtained a divorce on the ground of the wife's insanity (sec. 9460, N.C.L. 1929), supported by the testimony of seven physicians and psychiatrists; the court rejected the wife's desertion cross-complaint and awarded the husband custody. The wife, through her guardian ad litem, assigned twenty errors. The court held the insanity finding and corroboration amply supported even excluding challenged testimony. On the community property (an automobile, $20,000 in cash and bonds, $48,000 of insurance naming the children as beneficiaries, and a jointly held Wisconsin rental property), the court held that under sec. 9468, N.C.L. 1943-1949 Supp. the disposition rested in the trial court's discretion, and no abuse appeared. The court effectively awarded the community personalty to the husband for the children's benefit (finding it in his possession and control), the insane wife being maintained without charge at the Elgin State Hospital, while leaving the Wisconsin property and its rentals available to the wife. On support, although sec. 9460 provides that an insanity-ground decree shall not relieve the successful party from contributing to the defendant's support and requires a bond, the court for sufficient reason declined to order a present contribution (the wife being supported free of charge, with the husband keeping funds on deposit for incidentals); with nothing to secure, no bond need be exacted. Finally, the court held the district court was not required to retain jurisdiction to modify the wife's support, the legislature having provided retained jurisdiction (sec. 9462) only as to the children; the husband's statutory duty to support the insane wife survives the decree and is enforceable in an appropriate forum. Affirmed.

In plain language

A husband, himself a physician, obtained a divorce from his wife on the ground of her insanity; she had been confined for years at a state hospital in Illinois, which supported her without charge. The court rejected the wife's cross-complaint alleging desertion and gave the husband custody of the couple's three minor children. Through a guardian ad litem, the wife appealed, raising twenty claimed errors, most of which the court found repetitious or meritless. Ample testimony from seven doctors and psychiatrists supported the insanity finding. The wife's strongest points concerned money and property. The couple owned a car, about $20,000 in cash and bonds, $48,000 in life insurance naming the children as beneficiaries, and a rental house in Wisconsin. She argued the court had to give her part of the $20,000 because, after the divorce, she would not inherit from the husband and might someday need support if Illinois stopped paying. The court effectively let the husband keep the community personal property for the children's benefit, while leaving the Wisconsin rental property (and its rents) available to the wife. A statute gave the judge broad discretion over such matters, and the court found no abuse. The wife also argued the judge had to order the husband to support her and to post a bond, because the insanity-divorce statute says such a decree does not relieve the successful spouse of the duty to support the defendant. But since Illinois maintained her free of charge and the husband kept money on deposit there for her incidental needs, the court found no present amount to order, so no bond was needed. The court also held the judge did not have to keep the case open to modify the wife's support later, since the legislature provided for retained jurisdiction only as to the children. The decree was affirmed.