(dissenting). In Wisconsin it is the rule that, upon divorce, a husband has a continuing obligation to support his former wife in the manner to which she was accustomed. Radandt v. Radandt (1966), 30 Wis. 2d 108, 140 N. W. 2d 293. The reason for the rule is apparent from Weihert v. Weihert (1953), 265 Wis. 438, 61 N. W. 2d 890. The former husband has the duty to furnish a divorced wife nourishment or sustenance.
There may well be good reasons to conclude that, in this day of equal rights, in cases where both parties have the capacity to be self-supporting, the entire concept of alimony should be re-examined. Suffice it to say that alimony serves the public interest where, as here, it is necessary for the maintenance of one party to the divorce and without which the dependent former spouse would become a public charge.
Miner v. Miner (1960), 10 Wis. 2d 438, 103 N. W. 2d 4, holds that, where a divorce decree grants alimony, that *123decree is res adjudieata and will not be disturbed unless there is a material or substantial change in circumstances. This is particularly true where, as here, the alimony award was pursuant to the agreement of the parties.
Miner demonstrates that, since alimony is for the purpose of providing post-divorce support, the change in circumstances that must be proved hinges upon the changed needs or changed financial resources of the parties.
Balaam v. Balaam (1971), 52 Wis. 2d 20, 187 N. W. 2d 867, written by the author of the majority opinion in the instant case, stands indisputably for the proposition that a divorced husband who seeks to have alimony payments reduced has a heavy burden of proof if he is to disturb what has been decided. Balaam points out that, “Alimony and support money are, as a generalization, fixed on the basis of the needs of the wife and children and the ability of the husband to pay.” (p. 25)
Jackson v. Jackson (1962), 16 Wis. 2d 61, 113 N. W. 2d 546, put the burden of proof to show changed financial circumstances upon the party seeking to upset the original decree.
Additionally, this court has held that the alimony should not be awarded or adjusted for punitive purposes. Foregger v. Foregger (1970), 48 Wis. 2d 512, 180 N. W. 2d 578; Tonjes v. Tonjes (1964), 24 Wis. 2d 120, 128 N. W. 2d 446.
Alimony can be justified on one ground only — the obligation for the husband, in the usual case, to support his former wife in the manner to which she was accustomed during marriage. Sholund v. Sholund (1967), 34 Wis. 2d 122, 148 N. W. 2d 726; Jordan v. Jordan (1969), 44 Wis. 2d 471, 171 N. W. 2d 385; Tonjes, supra.
It is in the public interest that alimony usually be paid, for without such post-divorce provision for support, there *124is a substantial likelihood that a divorced spouse would become a public charge.
Bearing in mind this overriding purpose of alimony, what are the facts of this case? Dr. Taake, a Beaver Dam physician, whose ability to pay his divorced wife, the mother of his children, the sum of $200 per month for her support is unquestioned, petitioned the court to be relieved of his legal obligation solely because of his former wife’s alleged misconduct.
There was no proof that Dr. Taake could not pay the amount previously decreed, nor was there any proof that Barbara Taake’s financial circumstances had changed so that the alimony payments were not necessary for her maintenance.
Rather, the facts indisputably show that, at the time of the hearing, she was ill, was unable to work, and was unable to pay her rent.
The record shows that approximately two years after the divorce, she became acquainted with Lyle Fink. Fink stated that he took her into his home because she was running out of money and could not keep up with her expenses. In response to a question asking why he took her into his home, he said he felt sorry for her and stated:
“[A]s a kid years ago if I saw a dog running around the street in a good rain or so, I would try to give it protection ... I don’t think I did so wrong in offering her a place to get under a roof.”
The situation of Fink and Barbara Taake is more to be deplored in our society than to be blamed. He is unemployed and is not able to contribute substantially to Barbara’s support. In fact, she has been paying him rent. The relationship was one that arose out of mutual economic necessity — a necessity that the record shows continues in respect to Barbara Taake.
*125Yet, the record gave no consideration to the underlying purpose of alimony — the necessity for support and maintenance — nor to the rule in Wisconsin that has been followed without exception in considering the modification of an alimony award, that financial circumstances must be considered in every case.
It was admitted that Fink and Barbara had intercourse on several occasions, that they lived in the same house, that Barbara on no occasion held herself out as the wife of Fink, but on occasion had failed to correct persons who addressed her as Mrs. Fink. There was evidence that her mail was received under the name of Barbara Taake, not Barbara Fink. No neighbors were called as witnesses to testify that they believed that Fink and Barbara Taake were apparently living in a marital, rather than in an illicit, relationship.
On the basis of this evidence, however, the trial judge concluded that a de facto marriage existed between Fink and Barbara Taake. Under the statutory law of Wisconsin, only a remarriage bars alimony as a matter of law. Sec. 247.38, Stats. Hence, only if it could be said that Barbara Taake had remarried would the record support the legal conclusion to terminate the alimony.
Clearly, the relationship between Barbara Taake and Lyle Fink was not a marriage sanctioned by the law of this state. This state specifically outlaws de facto or common-law marriages. The law, for obvious public-policy reasons, does not clothe a legally unsanctioned male-female cohabitative relationship with any of the legal protections of a marriage. No legal relationship ever arose between Barbara and Fink except that of landlord and tenant. The trial judge’s characterization of the relationship as a de facto marriage is without significance except as a shibboleth on which to predicate a desired result. In states where a common-law marriage is recognized, it is indeed true that a common-law marriage would, if proved, terminate the obligation to pay *126alimony just as a de jure marriage would. The reason for that is, of course, that in a common-law marriage there is the manifestation that the relationship is permanent and that each party to it assumes the reciprocal obligations of marriage including the obligation of support and fidelity. Bowman v. Bowman (1956), 163 Neb. 336, 344, 79 N. W. 2d 554.
The relationship that the trial judge considered in this case was, however, only a temporary expedient. A true common-law marriage requires the common-law husband to support the wife, and the need for alimony for a divorced wife would be supplanted by the obligation of the common-law husband to support. In such circumstances the divorced husband ought to be relieved of his obligation. In the instant case no obligation was assumed by Fink to support Barbara Taake. The facts that might be pertinent in the event of a common-law remarriage do not appear in this case.
The trial judge abused his discretion when he gave the same legal effect to the relationship between the parties as he would have to a legally recognized marriage.
He abused his discretion when he seized on the empty shell of a temporary relationship to justify the termination of alimony without considering the question of the continued need for the support of Barbara Taake. He abused his discretion when he ignored the undisputed fact of record that Barbara Taake was a necessitous person, who should be supported by her former husband and not by public welfare, to which, the record shows, she had been forced to resort for assistance.
It should also be pointed out that Dr. Taake had no standing to raise the question of alimony termination with the court. He had defaulted on his alimony payment for a period of six months prior to his request for modification. The procedure for the modification of alimony is equitable in nature. Dr. Taake came to the court technically in contempt of it and, under the clean hands *127doctrine, should not have been heard until he had purged himself of default.
The trial judge also found that the defendant’s misconduct had caused her to forfeit her right to alimony.1 He made the finding that Barbara Taake and Fink were “guilty of fornication” and “lewd and lascivious conduct.” This finding was made without due process, and is wholly inappropriate in a noncriminal case. Neither Barbara Taake nor Fink were afforded any of the protections of the criminal law. To the extent that the testimony in this proceeding would justify any criminal characterization of their conduct, the evidence was wholly inadmissible. They were not charged with a crime and were not advised of their right against self-incrimination. The finding of criminal conduct was clear and prejudicial error. If the rights of the public are to be vindicated when persons indulge in legally unsanctioned sex acts, the remedy is in the criminal law. They ought not be characterized as criminals unless a prosecutor, in the exercise of his discretion, concludes that a criminal action is in the public interest, the parties are afforded the rights of criminal defendants, and the state assumes its duty to show guilt beyond a reasonable doubt.
It was irrelevant to these proceedings and constituted, an abuse of judicial discretion to brand these two people as criminals when they had not been adjudged so by the criminal process.
The trial judge relied upon the 1913 case of Weber v. Weber (1913), 153 Wis. 132, 140 N. W. 1052, for the proposition that the wife’s misconduct in this case warranted the termination of alimony. Unfortunately, the trial judge, Dr. Taake’s counsel on this appeal, and the majority opinion omit relevant language of Weber and omit a recitation of the facts on which Weber is based. *128Weber does not hold that post-divorce alimony can be eliminated solely as the result of the divorced wife’s misconduct.
In Weber the husband, who sought to have the alimony terminated, was compelled to bring the alimony arrear-ages up to date and the court ordered a final property division in lieu of alimony. Moreover, Weber did not involve the post-divorce modification of alimony. It modified the divorce judgment within the current term of the court and while it still had jurisdiction of the original judgment.
The trial court record in Weber reveals that the trial judge made explicit findings that the wife was an able-bodied woman, twenty-four years of age, of good education, capable of earning her own living, and, in addition, living with her parents. Hence, it is clear that the trial court decision affirmed in Weber was based upon proper evidence — the respective financial needs of the parties— evidence that was totally overlooked in the present case.
The majority opinion correctly recognizes that the language of Weber, relied upon by the trial judge, was mere dicta and was not dispositive of this case.
In erroneously interpreting the Weber dicta as a rule of law, the trial judge committed an error of law that impelled his incorrect conclusion.
In addition, the quotation from Weber is taken out of context by the trial judge and the majority opinion. The portion quoted in the majority opinion indeed appears in the text of Weber, but counsel failed to invite the attention of this court to the crucial phrase that appears immediately prior to the quoted text. That phrase requires a discretionary criterion that must be considered in every modification of alimony case — the financial status of the wife.
The omitted phrase points out that, even where there has been a lapse from virtue by the divorced wife, a *129“court may well refuse to modify the amount of alimony” if it appears that “the wife is without any means of her own and without the ability to earn a livelihood.” Weber, supra, page 138.
Additionally, Weber reveals itself to be a slender reed of precedent when that opinion concludes, “But in this case it cannot be said that there was any reduction of alimony.” (p. 138) It reasoned that, since the original judgment was still within the jurisdiction of the court term, the court had the authority to decree a final property division in lieu of alimony and was not effecting a modification.
Haritos v. Haritos (1925), 185 Wis. 459, 202 N. W. 181, relied upon by the trial court and quoted in the majority opinion, furnishes even less satisfactory precedent than Weber. The question of misconduct was at no time raised as an issue in the case. The sole question was whether the parties could by contract amend an alimony provision. It was claimed by the wife that she had signed an agreement to reduce the alimony because of threats of her ex-husband that he would have her prosecuted criminally for misconduct. The alleged misconduct was not at issue in the case and its effect was not argued by the parties.
Accordingly, it appears that the instant case was disposed of at trial, and now by this court, on facts that are not relevant to the modification of alimony and also upon a rule of law — that misconduct alone will suffice to Tnodify alimony — not heretofore recognized in Wisconsin.
The majority conjectures that “there are several changed circumstances that can be considered.” Perhaps such proof could have been adduced, but it was not. Clearly these “changed circumstances” were not considered by the trial judge.
We have repeatedly stated that we review the exercise of discretion by a trial judge. We do not substitute our *130discretion for the judge at trial in a case such as this. Be that as it may, the fact that Barbara Taake received a portion of the estate nine years ago is irrelevant now. The evidence is clear that she is presently penniless. True, also, she was originally given custody of the children, but when that custody was taken away from her the sum of $550 per month that she had theretofore been receiving for the support of the children was also terminated; but what evidence is there that the fact that she no longer has the children is such a change in circumstances that demonstrates she no longer needs support or should warrant that Dr. Taake now escape his legal obligation. Moreover, the conclusion that Fink and Barbara Taake had arrangements “for joint support" is irrelevant to the needs of Barbara Taake. It is probative rather of the fact that the alimony was inadequate. There was no evidence of any continuing or permanent obligation of Fink to support Barbara Taake; and only that proof, in light of the undisputed fact of Barbara’s need, could warrant a termination of alimony. There were no changes of circumstances relevant to the issue here. Additionally, it is apparent that the trial judge gave the “changed circumstances” that the majority conjures up no consideration whatsoever.
The trial judge’s order was clearly of a punitive nature. What public policy is served by rewarding a prosperous physician, at the expense of the general public? The state’s interest in having alimony paid to a needy former spouse has been thwarted by this decision.
The order should in law and in justice be reversed.
The petitioner wholly failed to sustain his burden of proof. Upon the evidence of record, it is clear that the trial court order was not supported by an adequate record but was wholly the result of an abuse of discretion.
I am authorized to state that Mr. Justice Day joins in this dissent.
As a general rule, misconduct of an ex-wife cannot be the sole ground justifying a modification of alimony. See: 2A Nelson, Divorce and Annulment (2d ed.), p. 92, see. 17.19.