Bahr v. Bahr

• Decision Date: 27 April 1982
• Docket Number: No. 80-1394,80-1394
• Citation: 318 N.W.2d 391,107 Wis.2d 72
• Parties: Darlene E. BAHR, Plaintiff-Appellant-Petitioner, v. Robert D. BAHR, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 391

318 N.W.2d 391

107 Wis.2d 72

Darlene E. BAHR, Plaintiff-Appellant-Petitioner, v. Robert D. BAHR, Defendant-Respondent.

No. 80-1394.

Supreme Court of Wisconsin.

Argued March 29, 1982.

Decided April 27, 1982.

Clifford K. Meldman (argued), and Meldman & Meldman, S.C., Milwaukee, on brief, for plaintiff-appellant-petitioner.

Jack C. Horth, Milwaukee, for defendant-respondent.

CALLOW, Justice.

This is a review of a July 8, 1981, unpublished decision of the court of appeals, 104 Wis.2d 737, 313 N.W.2d 278, which reversed and remanded the July 2, 1980, decision of Waukesha county circuit court, Judge Robert T. McGraw, awarding the plaintiff, Mrs. Darlene Bahr, certain cash, securities, $1,250 per month for fifteen years in property division, and $1,500 per month permanent maintenance in this divorce action. While we agree with the decision of the court of appeals directing the trial court to reconsider the division of estate and the maintenance award in light of the errors in computation and omissions, we disagree with the court of appeals' conclusion that the maintenance award was not so inadequate as to constitute an abuse of discretion. Under the facts and circumstances of this case, we conclude the maintenance award was unreasonably low, and, therefore, constitutes an abuse of discretion.

The parties to the present action were married twenty-four years prior to their divorce on July 30, 1979. They have four adult daughters who live outside of the home. Mrs. Bahr was fifty years of age at the time of the divorce, and she testified she was having medical problems, including arthritis and back ailments, which have allegedly interfered with her present ability to work for extended periods of time. Dr. Bahr was fifty-one years of age at the time of the divorce, and he testified he was in good health. Mrs. Bahr is currently living in California, and Dr. Bahr continues to reside in this state.

Mrs. Bahr has a college degree from the University of Minnesota, qualifying her to obtain employment as a dietician. She was employed part time as a dietary consultant between 1973 and 1979, earning up to $5,000 annually. She has not been employed since May of 1979. Except for the dietary consultant work, Mrs. Bahr devoted her time to caring for the children and home during the marriage.

Dr. Bahr is a physician specializing in the field of radiology. He is associated with Radiologist Association Limited, a service corporation owned by the participating physicians. Dr. Bahr's gross income for the year 1978 was $331,888 and in 1979 was $313,155. In addition, his service corporation paid the maximum statutorily allowed amount into his pension fund. The trial court found that in September of 1979, Dr. Bahr had a vested interest of approximately $400,000 in the fund.

The trial court valued the marital estate at $1,108,024. Out of this gross estate the trial court awarded Mrs. Bahr: $254,500 in cash and securities; $225,000 to be paid at a rate of $1,250 per month for a period of fifteen years; and $33,779.40 as contribution toward attorney fees. The trial court determined that "[t]otal division of estate would then amount to $513,279.40 which represents approximately 46 percent of the net estate."

In awarding Mrs. Bahr $1,500 per month permanent maintenance, the trial court concluded:

"ALIMONY: The Court in addressing the question of alimony has considered the length of the marriage, the age and physical health of the parties and the distribution of estate between the parties and the budgetary needs of the plaintiff to enable her to live in the manner consistent with her past state in life and the earning capacity or lack thereof of the plaintiff and the defendant, and the tax consequences to each of the parties herein. Having that in mind the Court will direct that ... the defendant is to pay to the plaintiff the sum of $1500 per month as and for permanent alimony.

"The Court notes that this would give to the plaintiff a combination monthly income of alimony and property division payments, the total sum of $2750. The plaintiff had asked the monthly payment to meet a budget of $5,750 per month of which $2500 per month was asked to establish a retirement fund.

"The Court has examined the proposed budget and feels that the present awards herein will be adequate to properly maintain the plaintiff."

On appeal, Mrs. Bahr challenged the propriety of the division of the marital estate ¹ and the adequacy of the maintenance award. The court of appeals agreed with Mrs. Bahr's arguments and reversed and remanded the case for a reconsideration of division of the marital estate. In response to Mrs. Bahr's allegation that the maintenance award was inadequate and an abuse of discretion, the court of appeals concluded:

"We do not believe this award is, under the circumstances, so inadequate as to constitute an abuse of discretion. Nevertheless, we direct the trial court to consider whether the alimony award should be modified to reflect the changes in the division of property. While division of the estate and alimony are separate and distinct awards, they cannot be made in a vacuum, and the division of property will affect the need and amount of alimony."

The principal issue before us on this review is whether, under the facts and circumstances of this case, the trial court's maintenance award was so inadequate as to constitute an abuse of discretion. Although the court of appeals held it was not, we disagree and hold that the trial court's award of maintenance in the amount of $1,500 per month was unconscionably low and an abuse of discretion.

We recognize at the outset that the award of maintenance and division of property are within the sound discretion of the trial court. Vander Perren v. Vander Perren, 105 Wis.2d 219, 226-27, 313 N.W.2d 813 (1982); Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16 (1981); Dean v. Dean, 87 Wis.2d 854, 877, 275 N.W.2d 902 (1979); Bussewitz v. Bussewitz, 75 Wis.2d 78, 89-90, 248 N.W.2d 417 (1977). This court has repeatedly endorsed this sound legal principle because the weight of the evidence and credibility of the witnesses is best measured by the trial court. See: Perrenoud v. Perrenoud, 82 Wis.2d 36, 42, 260 N.W.2d 658 (1978). As we have recently cautioned, however, "the exercise of discretion is not the equivalent of unfettered decision- making .... [A] discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination." Hartung, 102 Wis.2d at 66, 306 N.W.2d 16. Based upon the record before us, we conclude that the trial court, while stating the sec. 247.26, Stats.1977, factors in awarding maintenance, did not properly illuminate the reasoning which produced the resulting award.

The trial court in its findings of fact and conclusions of law noted that this action arose prior to the legislature's adoption of the Divorce Reform Act. The trial court's conclusion that the factors enumerated in the 1977 statutes for maintenance and property division were applicable to the action is not challenged. ² While maintenance and property division are separate and distinct awards, we agree with the court of appeals that they cannot be made in a vacuum. Dean, 87 Wis.2d at 878, 275 N.W.2d 902. See: Sec. 247.26(1)(c), Stats.1977. Thus, although the concepts of maintenance and property division are analytically severable, they are closely related, and the court of appeals was correct in concluding that a substantial error in the property division necessitated reconsideration of the maintenance award in this case.

While we are dealing here with maintenance, a review of the historical development of the division of property serves as a guide in our analysis of the maintenance award. We note that in the 1914 decision in Gauger v. Gauger, 157 Wis. 630, 147 N.W. 1075 (1914), the court was of the opinion that "a clear third of the whole [property division] is a liberal allowance to the wife, subject to be increased or decreased according to special circumstances." Id. at 633, 147 N.W. 1075. Accord, Kronforst v. Kronforst, 21 Wis.2d 54, 61, 123 N.W.2d 528 (1963). Justice Robert W. Hansen, commenting on the full text of the Gauger decision, fifty-six years later in Lacey v. Lacey, 45 Wis.2d 378, 381, 173 N.W.2d 142 (1970), stated that the oft-repeated one-third dower-type property division allowance to the wife was neither a minimum nor maximum. Justice Hansen cautioned that "the 1914 fountainhead decision seems to us now to stress the starting point too much, the finishing point too little. It is the equitableness of the result reached that must stand the test of fairness on review." Id. at 382, 173 N.W.2d 142. Justice Hansen went on to define marriage as a true partnership:

"The division of the property of the divorced parties rests upon the concept of marriage as a shared enterprise or joint undertaking. It is literally a partnership, although a partnership in which contributions and equities of the partners may and do differ from individual case to individual case. In a brief marriage, particularly as to property which the husband brought to the marriage, one third to the wife may be too liberal an allowance. In a long marriage, particularly as to property acquired by the parties during the marriage, a fifty-fifty division may well represent the mutuality of the enterprise. In determining the proportion of contribution by husband and by wife in the acquisition of property, more than economic factors are involved. We do not deal with two people with no more in common than two strangers or business associates. The contribution of a full-time homemaker-housewife to the marriage may well be greater or at least as great as those of the wife required by circumstances or electing by preference to seek and secure outside...