Anderson v. Anderson
| Decision Date | 06 October 1959 |
| Parties | Maybelle ANDERSON, Appellant, v. Collins W. ANDERSON, Respondent. |
| Court | Wisconsin Supreme Court |
Lilian M. Kohlmetz, Milwaukee, for appellant.
Benjamin P. Galin, Milwaukee, for respondent.
The two issues on this appeal are:
(1) Is the provision contained in the original divorce judgment requiring the defendant to pay $72,000 to the plaintiff in reality one for alimony although labeled a property division?
(2) Did the trial court abuse its discretion in directing the return of the children to Milwaukee and reducing the monthly payments of support money?
In the absence of any claim that the property division provisions of the judgment were the result of the defendant's mistake, inadvertence, surprise or excusable neglect, the jurisdiction of the trial court to review the same expired sixty days after the term at which such judgment was rendered. Sec. 269.46(3), Stats. As pointed out in Gray v. Gray, 1942, 240 Wis. 285, 287, 3 N.W.2d 376, under the provisions of sec. 247.32, Stats., a provision in the judgment for alimony may be revised from time to time, but the division of estate is fixed for all time.
The learned trial court grounded his determination, that there should be a modification of the property division provisions of the judgment, upon the theory that the requirement that the defendant pay the gross sum of $72,000 was in reality a provision for alimony, and, therefore, subject to revision under sec. 247.32, Stats. The case of Lally v. Lally, 1913, 152 Wis. 56, 138 N.W. 651, 652, was cited as authority for such a conclusion.
The provision in the divorce judgment in the Lally case, which was sought to be modified after the expiration of the term in which entered, read as follows: 'that the defendant, his heirs, executors, and administrators, pay or cause to be paid to the plaintiff during her natural life or until she shall remarry the sum of $3,600 per year, payable in equal monthly instalments of $300 on the 1st day of each and every month during such term, said payments to be made and accepted as a full, absolute, and final division of the estate of said parties.' The judgment further provided that upon failure of the defendant to make such payments, the plaintiff might apply to the court for an order of enforcement. By a four to three decision, the supreme court held that it was one for alimony, and not a division of estate, although so labeled. The rationale of such holding is as follows (152 Wis. at page 59, 138 N.W. at page 653):
'Tested by the statutes and decisions, they [the aforequoted judgment provisions] are all essential characteristics of a judgment of alimony, to wit, monthly payments, ceasing upon death or remarriage, and enforceable by further application to the court.'
This court, in referring to the Lally case, in Friedmann v. Tax Commission, 1940, 235 Wis. 237, 242, 292 N.W. 894, 132 A.L.R. 814, made it plain that it was the provision in the judgment which terminated the husband's payments upon the death or remarriage of the wife which caused the court to hold that the judgment provided for alimony and not a property division. The provisions for the payment of the $72,000 in the instant case are readily distinguishable from those in the Lally case. This is because there is no provision here for the monthly payments to end upon death or remarriage of the wife. If on the death of the instant plaintiff any balance of the $72,000 remained unpaid, the same would constitute an asset of her estate which she could bequeath by will, if she so desired.
A similar case to the Lally case came before the court in Norris v. Norris, 1916, 162 Wis. 356, 156 N.W. 778. Under the divorce judgment the plaintiff wife was awarded $75 per month during her life or until she remarried. It was expressly provided that she was to have 'no other or further right, title, interest, or claim of any kind or nature whatsoever against said defendant in or to his property.' Again the court divided four to three in holding on authority of the Lally case that this was a provision for alimony and, therefore, subject to be revised after the expiration of the term in which entered. The three dissenters were of the opinion that the judgment provided for a property division and not for alimony. However, Mr. Justice Barnes, speaking for the majority, made it very clear that the Lally case did not apply to a fact situation such as confronts us here, because his opinion declares:
The case of Towns v. Towns, 1920, 171 Wis. 32, 176 N.W. 216, is authority for the principle that a gross sum in money, part of which is payable in monthly instalments, properly may be awarded to the wife as a division of estate. In that case the judgment awarded the wife $2,400, $1,000 of which was payable forthwith and the balance in monthly instalments of $50 each, as a complete and final division of estate. The court held that this was a property division and, therefore, could not be modified after the term in which entered.
The strongest argument advanced in behalf of the instant defendant husband, that the provisions with respect to the $72,000 awarded the plaintiff wife constituted alimony, is that such sum exceeded the total assets of the parties subject to division. However, no authorities are cited in support of such contention. The $72,000 was payable over a twenty year period and the present value thereof on a three per cent discount basis is $54,904.20. If a four per cent discount basis were used, such present value would be even less. The total value of the assets owned in joint tenancy less the mortgage encumbrance, together with those owned by the defendant husband, did aggregate approximately $55,000. We, therefore, find it unnecessary to pass on the question of whether, if the present cash value of the sum required to be paid the wife in installments, in lieu of awarding her assets in kind, had exceeded in value the total estate subject to division, such a provision would constitute one for alimony and not a division of estate. If the amount so required to be paid to the wife is excessive in amount, there would seem to be justification for holding that it constituted an irregularity which could only be attacked by a motion to modify made within the term, or by a timely appeal. On this point, ...
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