(dissenting). A trial court judgment rests upon the court’s findings as to the essential facts upon which the judgment is based. The judgment itself is the superstructure. The findings of fact are the foundation upon which the structure rests.
In the case before us, as the majority opinion points out, the trial court made no findings of fact as to the acts constituting cruel and inhuman treatment. The *324judgment is there, but there is no foundation of fact findings to support it. The court majority elects to correct such omission by now constructing a factual foundation to support the judgment. It is, of course, possible to thus build a basement under a completed building, but there are several reasons why, in this case, a foundation should not have been built at the appellate level for a foundationless judgment.
Certain of the evidence offered by the plaintiff at the time of trial clearly was too remote in time to be properly considered.1 Since there are no findings of fact, it is not possible to learn whether such more than a decade-old incidents were relied upon by the trial court in reaching its conclusions of law and judgment. The court majority states that this issue is not reached because, in its constructing a foundation to hold up the judgment “. . . we ignore such evidence.” Such ignoring does not remove the probability that the trial court did rely in part upon such time-banned testimony, nor even of the possibility that it relied entirely upon such testimony.
Not only is a foundation provided, but the specifications of plaintiff’s complaint are now altered to fit the new foundation. On this appeal, the defendant complains that “. . . the evidence adduced in support of plaintiff’s cause of action went beyond the pleadings and no effort was made to conform the pleadings to the proof.” Once again, it is not possible to determine, in the absence of findings of fact, how heavily the trial court, if it did so at all, relied upon evidence that clearly did go beyond the scope of the pleadings. To the contention that the trial court could not properly rely upon such outside-the-pleadings evidence, the majority opinion now responds that it can consider such evidence “. . . since we *325can deem the pleadings to be amended to conform to the proof.” So we have the pleadings amended as well as the foundation furnished by the appellate court on review. This becomes a major construction project indeed. The defendant contended that the trial court’s action was based upon evidence that went beyond the then unamended pleadings. Is this contention well answered by now changing the pleadings so that a new structure will now fit upon a new foundation now constructed?
The majority opinion not only does a construction job for the case of the plaintiff, but also a demolition job on the case of the defendant. Nowhere in the decision of the trial court is there any reference to the counterclaim of the defendant. In a contested action, with complaint, answer and counterclaim before the court, it would seem elementary that the judgment must deal with and dispose of both the complaint and counterclaim. To rule on one and not the other is an exactly half-finished job. This is particularly true in an action for divorce where, if it appears from the evidence that both parties have been guilty of misconduct sufficiently grave to constitute cause for divorce, a decree of absolute divorce may not be granted to either plaintiff or defendant.2 The majority opinion bulldozes the counterclaim out of the picture by finding, although the trial court did not so find, that the acts of the plaintiff, if true, had no “material adverse effect” upon defendant’s health. This gives the defendant the only ruling on his claim long after the trial in which he presented them. This becomes a dismissal of a counterclaim which cannot be *326reviewed because it is the reviewing court that did the dismissing.
We do not quarrel with the general proposition that a trial court’s failure to find a fact is not necessarily reversible error, although it is one thing to add a missing brick and something else to supply all four supporting foundation walls. It is the willingness to do so complete a foundation-providing job in a case involving marriage and the family that we find ill-advised. The majority opinion comments that “In cases involving family law, it is especially helpful to this court that adequate findings of fact be made.” That ought not be the important consideration. More than the convenience of a reviewing court requires that a divorce judgment entered without findings of fact should be held to be fatally defective. Litigants and society in general are entitled to definite findings as to all essential facts. Nor is it enough to suggest to trial courts in this state, as the majority opinion does, that “. . . more specific findings should be made upon request of counselNine out of ten divorce actions in this and other states are default or substantially uncontested lawsuits, at least insofar as the granting of the divorce is concerned. There are overpowering reasons of sound public policy for requiring that in every divorce action, contested or uncontested, specific findings as to essential facts must be made before a divorce decree is granted, and, in this state, that is the clear mandate of the Wisconsin Family Code. (Chs. 245 to 247, Wis. Stats.)
To dispel any doubt about what they were doing and why they were doing it, the Wisconsin legislators started off their recodification and reconstruction of the domestic relations laws of this state with the following declaration of purpose:
“It is the intent of chs. 245 to 248 to promote the stability and best interests of marriage and the family. Marriage is the institution that is the foundation of the *327family and of society. Its stability is basic to morality and civilization, and of vital interest to society and the state. The consequences of the marriage contract are more significant to society than those of other contracts, and the public interest must be taken into account always. . . . The impairment or dissolution of the marriage relation generally results in injury to the public wholly apart from the effect upon the parties immediately concerned.” 3
This firm declaration of public policy makes it clear that a divorce action in Wisconsin does not just involve the plaintiff and defendant. It affects society, and, therefore, “. . . the public interest must be taken into account always.” It is not alone the defendant who was entitled to definite findings as to essential facts. The public is entitled to such findings. Both the spirit and letter of the Wisconsin Family Code require that a court finding of essential facts accompany and support a decree of divorce in this state.
While in this case there was a complied with demand for a bill of particulars, the Wisconsin statutes provide generally that, short of such demand, in actions for divorce or legal separation:
“. . . the complaint or counterclaim shall state the statutory ground for the action without detailing allegations which constitute the basis for such ground.” 4
This insistence upon a nonitemized or bland complaint serves the useful public purpose of softening the adversary nature of divorce proceedings in the initial stages. However, the very absence of particulars in the complaint makes it more important than otherwise that the court’s judgment be based upon essential facts definitely found and clearly stated. To permit trial level courts to do no more than make a conclusion of law as to the grounds, with no finding of facts, would be an *328open invitation to the granting of divorce decrees on the flimsiest of proof and the shakiest of testimony, particularly in default cases. The public, as well as the parties, is entitled to know the facts upon which the court based its judgment of divorce.
This case was an opportunity for this court to unequivocally state that findings of fact, as well as conclusions of law, must be made before a judgment of divorce can be entered and decree of divorce can be granted. Sadly enough, that opportunity has been missed. I would have reversed and remanded for a new trial.
I am authorized to state that Mr. Justice Bruce BEilfuss joins in this dissent.
Sec. 247.03 (2), Stats., provides that an action for divorce . . shall be commenced within 10 years after the cause of action arose . . . .”
Sec. 247.101, Stats. “The equitable doctrine that the court shall not aid a wrongdoer is applicable to any party suing for divorce under s. 247.07 (1) to (5), except that where it appears from the evidence that both parties have been guilty of misconduct sufficiently grave to constitute cause for divorce, the court may in its discretion grant a judgment of legal separation to the party whose equities on the whole are found to be superior.”
Sec. 245.001 (2), Stats.
Sec. 247.085 (2), Stats.