Balaam v. Balaam

• Decision Date: 25 June 1971
• Docket Number: No. 285,285
• Parties: Robert F. BALAAM, Appellant, v. Carol Lyn BALAAM, Respondent.
• Court: Wisconsin Supreme Court

Page 867

187 N.W.2d 867

52 Wis.2d 20

Robert F. BALAAM, Appellant, v. Carol Lyn BALAAM, Respondent.

No. 285.

Supreme Court of Wisconsin.

June 25, 1971.

The issues before us arise out of a divorce action and are concerned with the amount of alimony and support money, contempt of the husband for nonpayment of alimony and support money, and the attorneys' fees awarded to the wife.

The action was commenced by the husband, Robert Balaam, against his wife, Carol Balaam, on September 30, 1969. The parties were married in February of 1965, and one daughter was born of the marriage on January 27, 1967. At the time the action was commenced Robert Balaam was twenty-seven years of age, and Carol Balaam was twenty-five years of age. The defendant-wife's answer and counterclaim were withdrawn and on May 13, 1970, a divorce was granted to the plaintiff-husband on the grounds of cruel and inhuman treatment. Custody of the daughter was awarded to the defendant.

On May 15, 1970, the trial court rendered a memorandum decision providing for the division of property, alimony, support, and contribution toward the defendant's attorneys' fees. The property was divided primarily on the basis of present possession. Carol Balaam was awarded a 1966 Buick, subject to a lien, all household furniture and furnishings, and all her personal effects. Robert Balaam was awarded a 1961 Ford automobile, several insurance policies, and a 'moral equity' in his father's mink farm business. The decision also provided that the plaintiff pay the defendant the sum of $50 per week in alimony, and $22 per week for support, commencing on June 1, 1970. The plaintiff was ordered to contribute $125 toward his wife's attorneys' fees. This was in addition to the $125 already paid pursuant to a prior order.

At the time of the hearing on May 13, 1969, the plaintiff was current on temporary alimony and support payments of $60 per week, paid pursuant to an order of the family court commissioner dated October 9, 1969. On May 28, 1970, he was served with an order to show cause why he should not be held in contempt for failing to make temporary alimony and support payments. A hearing was held on June 8, at which time the plaintiff was $92 in arrears on alimony and support payments. He was found guilty of contempt and sentenced to six months in the county jail, subject to an opportunity to purge the contempt. The divorce judgment incorporating the support and alimony order was filed on June 15, 1970. An order denying the plaintiff's petition for a revision of the divorce judgment relating to alimony and support was filed on June 25, 1970.

Notice of appeal was filed June 25, 1970, by the plaintiff. The sentence for contempt was stayed pending this appeal on the condition that the plaintiff pay not less than $50 per week for alimony and support while the appeal was pending. On August 6, 1970, an order was filed requiring that the plaintiff contribute $700 toward defendant's attorneys' fees for defending this appeal.

The plaintiff has appealed from that portion of the divorce judgment entered on June 15, 1970, relating to the property division, and alimony and support; from the order denying his petition for revision of the divorce judgment; and from the contempt sentence. Defendant-wife has appealed from that portion of the divorce judgment relating to the plaintiff's contribution toward her attorneys' fees, and from the order of August 6, 1970, relating to the plaintiff's contribution toward her attorneys' fees for this appeal.

Additional facts will be stated in the opinion.

Eberhardt & McMurry, Lake Mills, for appellant.

Smith & Miller, Jefferson, for respondent.

BEILFUSS, Justice.

At the oral argument counsel for the plaintiff-husband conceded that the division of estate was within legal rules and that the division as made by the trial court did not reflect an abuse of discretion. This portion of the judgment is therefore affirmed and will not be discussed except to note that the parties owned no real estate and only a limited amount of personal property. The wife, who was awarded custody of the minor child, was rightfully given the household goods and furnishings, her personal effects, and her 1966 automobile. The husband received his 1961 automobile, the interest in life insurance policies, and a small investment fund account.

The issues to be considered as raised by the appeal of the plaintiff-husband are: (1) The amount of alimony and support money payments, and (2) the finding and order of contempt for failure to make alimony and support money payments.

The issue to be considered as raised by the appeal of the defendant-wife is the amount of attorneys' fees awarded to her for the trial and for this appeal.

The plaintiff-husband contends the trial court erred in that it used the wrong basis to determine his earnings or earning capacity, and that an award of $50 per week alimony and $22 per week support money, in view of his actual present earnings of $400 per month plus his board and room, was an abuse of discretion.

We start with the rule stated in Jordan v. Jordan (1969), 44 Wis.2d 471, 474, 171 N.W.2d 385, 387:

'This court has often recognized that both the award of alimony and the division of property are within the peculiar discretion of the trial court. This discretion '* * * must prevail in the absence of some mistake or error respecting the facts upon which it rests which would amount to an abuse of discretion.' Horel v. Horel (1952), 260 Wis. 336, 340, 50 N.W.2d 673, 676; Morris v. Morris (1961), 13 Wis.2d 92, 93, 108 N.W.2d 124.'

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. The needs of the wife are ordinarily determined by her assets and income, her earning capacity, age and health of herself and the children, her special needs and the special needs of the children, if any, and their customary station in life. The ability of the husband to pay is usually determined by his income, assets and debts, and his age and health. ¹

In this case the trial court found that the plaintiff-husband had an earning capacity of $725 per month. The evidence established that at the time of the trial he earned a gross salary of $400 per month, plus room and board furnished by his parents. The value of the room and board was calculated to be $175 per month. His wife had an earning capacity of $325 per month, but had custody of the child, then three years old, and was not employed at the time of the trial. The trial court found that the wife's expenses for herself and the child totaled $312 per month. At the trial the plaintiff testified that, in addition to his room and board, his monthly expenses were approximately $180 per month, including federal and state income taxes, social security, automobile expenses, and insurance and medical insurance premiums.

The plaintiff-husband contends that the trial court erred in not using his income at the time of the trial as a basis for the award of alimony and support.

This court has held that the husband's ability to pay is determined at the time of the trial, subject to revision if his income decreases or increases. ²

Sec. 247.26, Stats., provides for the payment of alimony and support out of the property and income of the husband. The plaintiff argues this statute requires that the trial court award support and alimony out of existing property and current income of the husband, and not out of past or average income.

In Knutson v. Knutson (1961), 15 Wis.2d 115, 111 N.W.2d 905, the court allowed alimony to be determined on the basis of the husband's earning capacity or future earnings. In that case the husband earned $46,000 as a practicing physician the year prior to the divorce. He then left the state and took employment earning $400 per month. The trial court found that he willfully left his practice in Wisconsin for the express purpose of decreasing his earnings in order to attempt to prevent the plaintiff from obtaining a substantial allowance for alimony. The Court stated at pages 117, 118, 111 N.W.2d at page 907:

'* * * In such a situation, a court is not required to determine alimony on the basis of the husband's present income. In a proper case the amount of alimony may be based upon earning capacity or prospective earnings. Gordon v. Gordon (1955), 270 Wis. 332, 346, 71 N.W.2d 386. We approve of the holding of the Pennsylvania Superior Court in Appleton v. Appleton (1959), 191 Pa.Super. 95, (100), 155 A.2d 394, 396, when it stated: 'This appellee cannot wilfully now choose to retire from gainful employment and deny his wife the alimony it is his duty to attempt to supply."

In this case the evidence shows that the plaintiff's parents own and operate a substantial mink ranch in the vicinity of Lake Mills. As a high school and college student the plaintiff had worked on the mink ranch during off hours and vacations for several years. He completed three and one-half years of college, working toward a degree in sociology. He did not graduate and has no special skills acquired in college. He quit college to work on his father's mink ranch.

The plaintiff-husband was paid $725 per month in 1968. His salary for the first nine and one-half months of 1969 was $600 per month, plus the use of a two-bedroom dwelling with a rental value of $75 per month. The parties separated on October 1, 1969. On October 15, 1969, the plaintiff's salary was reduced to $400 per month. The testimony was uncontradicted that the plaintiff's salary was not reduced for the purpose of decreasing his ability to pay alimony and support money. The evidence established that the mink business throughout the United States was experiencing a recession in 1969. The Balaams' mink business deteriorated in 1969, with some mink pelts which cost $13 to raise selling for $6. The Balaam mink business was faced with an annual operating loss...