Besaw v. Besaw
| Decision Date | 30 May 1979 |
| Docket Number | No. 76-648,76-648 |
| Citation | 279 N.W.2d 192,89 Wis.2d 509 |
| Parties | Terrance BESAW, Plaintiff-Appellant, v. La Verne BESAW, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
James F. Pressentin and Berk, Pressentin, Hoida & Berk, Green Bay, on brief, for plaintiff-appellant.
John M. Williamson and Van Laanen & Williamson, Green Bay, on brief, for defendant-respondent.
This is an appeal from an order of the county court entered October 20, 1976 nunc pro tunc to September 27, 1976, finding Terrance Besaw, the appellant, in contempt of court for failure to pay alimony and attorney fees pursuant to a judgment of divorce entered June 5, 1975. Notice of appeal was filed October 21, 1976.
The question on appeal is: In determining ability to pay as a defense to contempt for failure to pay alimony, did the court commit error in refusing to take account of the husband's obligation to support a minor child of the second marriage?
Terrance and La Verne Besaw were divorced pursuant to a judgment granted June 5, 1975 by the county court for Brown County. The parties were married in 1941. Terrance Besaw who was fifty-seven at the time of the divorce works for American Can Company in Green Bay, taking home an average of $335. every two weeks. La Verne Besaw, age fifty-five at the time of the divorce, has never worked, has no training or skills, does not drive, and has made no attempt to find work. Her monthly living expenses are $326.57. The parties have no minor children.
Mrs. Besaw was granted a legal separation on April 24, 1975 nunc pro tunc April 6, 1970, by the family court branch of the county court for Brown County. Under this judgment, Mr. Besaw was ordered to pay her alimony of $137. every two weeks. Mrs. Besaw received the household furnishings and appliances as well as a $3,351. lien on the homestead. He received the automobile, his retirement fund, and the homestead, subject to the wife's lien. He was to make the mortgage payment of $128. per month including taxes and to pay off the lien at the rate of fifty dollars per month. He was also ordered to contribute $300. toward his wife's attorney fees in the action.
Mr. Besaw then sought a divorce on the ground of separation for one year pursuant to the legal separation. The divorce judgment was granted on June 5, 1975 nunc pro tunc December 5, 1974. Under the judgment of divorce, he was ordered to pay alimony of $327. per month to her until she was eligible to collect social security on his account. He was also ordered to contribute $300. toward his wife's attorney fees.
Mr. Besaw fathered a child born to Vera Bockin on August 20, 1966. After his divorce, he married the mother of his child. The trial court was aware of the existence of the child at the time of the divorce.
Mr. Besaw was found in contempt of court for an arrearage of $277. representing alimony due on the legal separation judgment, following a hearing on June 6, 1975. Following a hearing held July 14, 1975, he was also found in contempt for an arrearage of $301. under the divorce judgment.
On July 26, 1976, Mr. Besaw made a motion to reduce the amount of alimony under the divorce judgment. In his affidavit, he stated that his obligations had increased and that he was unable to meet the payments. At the hearing, held August 23, 1976, he testified that he had been transferred to a new position at American Can Company and that he no longer had the opportunity to work overtime. However, his take home pay at that time was approximately $335. every two weeks, slightly higher that at the time of the earlier contempt proceedings. He testified that he had remarried on July 6, 1976 and had a minor child and a second wife to support. This child was born prior to the divorce and was known to the trial court.
Vera Besaw, Mr. Besaw's second wife, has two minor children. She receives $163. per month in social security for Ronald, age sixteen, who is not Mr. Besaw's child. The social security payments cease when Ronald reaches age eighteen unless he goes on to school. Vera Besaw received Aid to Families With Dependent Children (AFDC) for the children up to June or July, 1975. She works as a part-time babysitter in a bowling alley during the season from September to May each year. She makes thirty to thirty five dollars per week. She had had back surgery in the past, and may require future surgery to alleviate her back problem. She has no other property or source of income, other than what she receives from her husband.
There was testimony that Mr. Besaw holds the homestead in joint tenancy with Mr. Burton Kainz. The home, which was awarded to Mr. Besaw in the property settlement, is a duplex. There was also testimony that there was little market for the property unless the whole duplex was put up for sale. Mr. Kainz testified that he had offered to purchase Mr. Besaw's interest at the time of the divorce, and that he would currently purchase it for $14,000. to $15,000. over and above the mortgage. The record indicates that Mr. Besaw had $10,000 net equity in the duplex at the time of the divorce.
The court found that there was no substantial change of circumstances and denied the motion to reduce alimony. The court said that it could give no consideration to Mr. Besaw's obligations to his new wife and child in judging ability to pay alimony to the first wife. The court said that it could only leave Mr. Besaw enough money to live on as a single man.
On September 27, 1976, the court again found Mr. Besaw in contempt for failure to pay alimony of $425. and attorney fees of $300. The order was entered October 20, 1976, but the court stayed execution pending appeal.
The only order before the court on appeal is the order of October 20, 1976 finding Mr. Besaw in contempt for failure to pay alimony and attorney fees. The trial court consistently took the position that it could give no consideration to the fact that he had an obligation to support a minor child of the second marriage. Although the transcript of the divorce proceedings was not made part of the record on appeal, it is apparent that the trial court believed it was precluded as a matter of law from taking into account the existence of this child for purposes of determining ability of the husband to pay alimony. At the hearing on the motion to reduce alimony, the following exchange took place:
We conclude that the trial court was in error when it stated that as a matter of law it could not consider as an element of ability to pay, the obligation that the law imposes on Mr. Besaw to support his child. On the contrary, we hold that is one of the factors that must be considered. From the record before us it appears that obligation existed before the original judgment of legal separation was entered since the obligation to support a child born in or out of wedlock is made clear by sec. 52.05(1) and by sec. 52.055, Stats., created by Ch. 595, Laws of 1959. 1
This court stated in Balaam v. Balaam, 52 Wis.2d 20, 29, 187 N.W.2d 867, 872 (1971) that a person may be held in contempt of court for failure to pay money only where the failure is willful and not the result of inability to pay:
In a contempt proceeding, the burden of proof is on the person against whom the contempt is charged to show his conduct is not contemptuous. In re Adam's Rib, Inc., (Kaminsky), 39 Wis.2d 741, 747, 159 N.W.2d 643 (1968). The findings of fact in a civil contempt will be sustained on appeal unless they are against the great weight and clear preponderance of the evidence. State v. Balistrieri, 55 Wis.2d 513, 524, 201 N.W.2d 18 (1972).
In this case, the trial court made the finding that Terrance Besaw's failure to make payments was the result of his willful disobedience.
This court has recognized that as a generalization alimony and...
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