Anderson v. Anderson

• Decision Date: 02 June 1976
• Docket Number: No. 674,674
• Citation: 242 N.W.2d 165,72 Wis.2d 631
• Parties: Kathryn M. ANDERSON, Respondent, v. Arthur M. ANDERSON, Appellant. (1974).
• Court: Wisconsin Supreme Court

Page 165

242 N.W.2d 165

72 Wis.2d 631

Kathryn M. ANDERSON, Respondent, v. Arthur M. ANDERSON, Appellant.

No. 674 (1974).

Supreme Court of Wisconsin.

Submitted May 5, 1976.

Decided June 2, 1976.

Charles P. Dykman, Dykman Law Offices, Madison, on the briefs, for appellant.

Hamilton & Mueller, Dodgeville, on the brief, for respondent.

BEILFUSS, Chief Justice.

The plaintiff, Kathryn M. Anderson, and the defendant, Arthur M. Anderson, were married on August 25, 1951. On February 18, 1974, the plaintiff was granted an absolute divorce on the grounds of cruel and inhuman treatment.

At the time of the trial the plaintiff-wife was fifty-five years old and the defendant-husband was forty-nine. The parties had been married for twenty-two years and had five children, three of whom were still residing at home. The oldest of the three was eighteen and a senior in high school. The other two were minors, ages thirteen and fifteen. Mrs. Anderson had been employed part-time as a bookkeeper for several years and earned between $85 and $90 a week. Mr. Anderson had held a number of jobs during the couple's marriage and was employed as a manager of a farm implement business at the time of the divorce. His net income from that job was $733.96 per month.

The major asset of the parties was a farm which had a value of $44,000 with the parties' equity fixed at $24.035. Their net worth was $35,604.32. Five acres of the farm, including the residence, was set aside and awarded to the wife. The value of the five acres was $22,000. The balance of the land was awarded to the husband. The total amount the wife received in the division of estate was $23,675.50, but she was required to assume some bills and to give to the husband her note and real estate mortgage on the residence in the amount of $5,000 with interest at six percent payable in five years. Her net in the division was $18,431 and the husband's $17,173.32.

The wife was given the custody of the two minor children and awarded $100 per month alimony for a period of fifteen years and $200 per month support money.

The judgment also provided for a contribution by the husband of $300 for attorneys' fees, plus $150 previously awarded.

The first issue we reach is the wife's challenge to the husband's right to appeal.

At the time this divorce action was commenced the parties were vendors on a land contract with one Robert Bachner as the vendee. As a part of the property division portion of the divorce judgment the husband was awarded the full vendor's interest under that contract. The defendant was also ordered to assume and discharge certain liabilities of the parties. In order to fulfill those obligations he borrowed money from his father. The husband assigned his interest under the land contract to his father as security for that loan. The wife argues that this constitutes an acceptance of the benefits of the divorce judgment and that the defendant should therefore be held to have waived his right to appeal from that judgment.

As a general rule, one who accepts the benefits or fruits of an order or judgment may not maintain an appeal therefrom. ^{1 1} This rule has been held to apply to the property settlement provisions of a divorce judgment. ² However, certain exceptions to the rule have been recognized.

To preclude appeal by the acceptance of the benefits of a divorce judgment the acceptance of benefits must be of such a nature as to clearly indicate an intention to be bound by the divorce decree. Where, as here, the purpose of the appeal is to seek a more favorable award, the acceptance or use of that property actually awarded should not be held to constitute a waiver of the right to appeal. ³

The principal issue before us is the husband's contention that the trial court erred in granting more than one-half of the family property to the wife.

The division of the marital estate in a divorce action is subject to review on the ground that it is excessive as to one party or the other. However, the division of property is a matter within the sound discretion of the trial court and will not be upset unless an abuse of discretion can be shown. The trial court's division must be upheld in the absence of some mistake or error respecting the facts upon which it rests or unless, under all the circumstances, the amount is either clearly excessive or inadequate. ⁴

In Lacey v. Lacey (1970), 45 Wis.2d 378, 173 N.W.2d 142, this court concluded that the division of the property of divorced parties rests on the concept of a marriage as a shared enterprise or joint undertaking. The court recognized that the contributions of the parties to the marriage and to the accumulation of the property differs from case to case, making it extremely difficult to establish any fixed rules for the division of the property. However, the court reiterated some of the factors which a trial court, in exercising its discretion, should consider relevant to the property division question. They include: (1) The length of the marriage; (2) the age and health of the parties: (3) the ability of the parties to support themselves; (4) the liability of the parties for debts or for the support of minor children; (5) misconduct, if any, on the part of the parties; (6) whether the property division is in lieu of or in addition to alimony; (7) whether the property was acquired during the marriage or brought to it; (8) the amount of the spouses' separate estates; (9) the necessity of sequestering property to care for the needs of minor children.

The following factors have been considered particularly relevant in determining whether the trial court has erred in awarding a substantial share (generally considered to be more than one-third) of the marital estate to the wife: (1) A long period of marriage; (2) complete lack of any separate estate in the wife coupled with her inability to support herself; (3) the misconduct of the husband contributing to the breakup of the marriage; and (4) amount of permanent alimony awarded to the wife. ⁵

In this case the trial court concluded that 'each of the parties should receive one-half of the net estate or an amount as close to that figure as is reasonably possible.' That decision, the trial court stated, was based upon a consideration of the factors set forth in Lacey, supra. Specifically the trial court noted that the parties had been married over twenty-two years. It also took note of the fact that both parties were in good health and that the plaintiff-wife was employed at a job in which her earnings had increased each year. However, the court stated:

'In allowing the plaintiff a division of the estate of approximately 50%, considered liberal by our Supreme Court, this Court has taken into consideration the plaintiff's age of 55 years, the probability that she has only about 10 years during which she will be able to support herself, and the fact that she has no separate estate of her own. Also considered was the fact that she has worked consistently since 1957 and contributed all of her earnings to the family unit.'

The trial court further considered the fact that the divorce had been granted on the ground of cruel and inhuman treatment by the husband. The court noted that neither party had brought assets to the marriage of more than a nominal value and that all the marital property was acquired through a joint effort of the parties and a pooling of income. Finally, the court recognized that the husband had contributed more in dollar amounts than the wife, but noted that the wife's 'efforts in raising a family of five children and keeping a household equalize the defendant's financial efforts.'

The husband argues on appeal that the court failed to effectuate its intention of dividing the property equally. He points out that the wife received $23,431 in assets less a note for $5,000 payable to him in five years and bearing interest at only six percent per annum. He contends that the note was an inadequate method of equalizing the division of assets because '$5,000 today is worth considerably more than $5,000 and six percent interest per year five years from now,' and because the devise resulted in the award of about 51 percent of the estate to the wife.

It is true that the trial court's division did not result in an award of precisely 50 percent of the marital property of each party. However, the parties' assets were not liquid, making a precise division difficult. Furthermore, the trial court was of the opinion that the requirement that the wife pay interest on the $5,000 note would result in an approximate equalization. Under these circumstances there was no abuse of discretion in employing the promissory note device to effectuate the intended division.

The husband also contends that the trial court's equal division of the property must be set aside in light of its concurrent decision to award permanent alimony to the plaintiff in the sum of $100.

It is true that the amount of permanent alimony is a factor to be considered in making a division of property. In many cases, a substantial award to the wife is made in lieu of alimony. In the Kronforst Case, supra, this court characterized an award of permanent alimony in the amount of $100 per month as 'substantial.'

However, the amount of alimony is only one of many factors to be considered in the division of property. Clearly, an award of $100 per month is not as 'substantial' an award today as it was in 1963 when Kronforst was decided. While the alimony award cannot be considered low, it is not so substantial so as to require a lesser award of property to the wife under the circumstances of this case.

The defendant alleges no error or mistake of fact on the part of the trial court which would require a finding that the trial court abused its discretion with respect to the division of property. The court's decision demonstrates a consideration of all the factors while are considered relevant to the division of...