Borchers v. Borchers

• Decision Date: 15 February 1949
• Citation: 36 N.W.2d 79,254 Wis. 302
• Parties: BORCHERS v. BORCHERS.
• Court: Wisconsin Supreme Court

254 Wis. 302

36 N.W.2d 79

BORCHERS

v.BORCHERS.

Supreme Court of Wisconsin.

Feb. 15, 1949.

Appeal from a judgment and order of the Circuit Court for Dane County; Roland J. Steinle, Circuit Judge.

Suit for divorce by Josephine Moe Borchers against Earl C. Borchers. From that portion of the judgment of divorce awarding alimony to the plaintiff, and requiring defendant to pay all extraordinary and dental expenses for a child of the parties in excess of $10 for any one period of illness, and from an order requiring defendant to pay plaintiff's attorney $80 for the printing and costs in appeal by defendant, and requiring defendant to pay $250 to plaintiff's attorney as attorney fees in the appeal, the defendant appeals.-[By Editorial Staff.]

Judgment and order affirmed.This is an appeal from that portion of a judgment of divorce entered July 1, 1948, awarding alimony to the plaintiff and providing that the defendant shall pay all extraordinary medical and dental expenses in excess of $10 for any one item or period of illness. The action was commenced on April 30, 1948. A separate appeal is made from the order entered on October 13, 1948, requiring the defendant, within thirty days from October 8, 1948, to pay to plaintiff's attorney the sum of $80 for printing and costs in the supreme court appeal; and requiring the defendant, within sixty days from October 8, 1948, to pay the sum of $250 to the plaintiff's attorney as attorney fees in the supreme court appeal.

Plaintiff and defendant were married September 16, 1944, and, after the marriage, lived with the defendant's parents on their eighty acre farm in the town of Westport, Dane county.

In March 1944, prior to the marriage, the defendant entered into an agreement with his father whereby the defendant would rent the farm for $600 per year and would purchase the livestock, machinery, and a small amount of grain for $4,000. Prior to the marriage the defendant paid his father the $600 rent and shortly after the marriage he paid his father $1,000 upon the agreed purchase price of the personal property. He was to pay four per cent interest on the unpaid balance of $3,000.

The parties did not get along well together. There was constant wrangling, some mild physical scuffling, and ‘in-law’ interference. They separated for about ten days shortly after Christmas in 1944, and then resumed living together again. The defendant's parents moved off the farm but the difficulties continued. In May of 1945, the parties separated and have not lived together since.

After the final separation, the defendant started a divorce action but upon the hearing, the plaintiff told the presiding judge that she was pregnant and the court refused to grant any decree at that time. The child was born January 31, 1946.

Defendant continued to operate his father's farm until March, 1946, at which time he gave the personal property back to his father. He owed his father $600 rent for the 1945-1946 season, and $3,000 plus interest on the purchase price of the personal property. Although no grain was included, the defendant estimated that the personal property turned back to his father had a value of approximately $7,000. Defendant received $300 from his father and a complete release from the rent. He then continued to work on the farm for his father at a salary of $100 per month and room and board. However, in December of 1947, the father sold the farm for $25,000, and the personal property for $12,000.

The defendant is an only child and now lives with his parents in Madison. He is presently employed by the Wadhams Oil Company. The record shows his base pay to be $184 per month. The amount is approximately $161 after deducting social security and taxes. He pays his mother $15 per week or $65 per month, for room, board, and washing. The only property he has is a 1938 Dodge automobile, and a $1,000 life insurance policy. Since the separation he has spent about $3,000 for alimony, support money, doctor bills, and attorney fees, and he owes $100 for room and board, and attorney fees for two previous hearings and attorney fees and costs in present action.

The plaintiff is thirty two years old, has completed four years of college training, and is a licensed teacher. She has a civil service rating and since the separation has worked in various state departments. During that time the plaintiff has had the child in several foster homes but the arrangement was difficult and unsatisfactory and on April 21, 1948, she quit to take care of her baby. Plaintiff has maintained a one room and bath furnished apartment that costs her about $42 per month. The record shows that she has household furniture, consisting of a rug, chair, and roll-away bed, $1,000 insurance policy, and $50. She owes approximately $250, including $134 to the Family Welfare Service. It has been necessary for her to live on her savings since April.

Plaintiff's parents are dead. She has two brothers and one sister living in the state. She cannot live with them because they do not maintain their own homes. The brothers are single, and the sister is married but lives with her foster parents.

The trial court granted plaintiff a judgment of absolute divorce on the grounds of cruel and inhuman treatment and, among other things, ordered the defendant to pay $30 per month as support money for the minor child, $25 per month permanent alimony to the plaintiff, all extraordinary medical and dental expenses for the child in excess of $10, and the sum of $113.70, attorney fees and costs to the plaintiff's attorney, to be paid within eight months of June 16, 1948.

Any other material facts will be stated in the opinion.

Randolph R. Conners, of Madison (Frederick F. Hillyer,...