Brackob v. Brackob
| Decision Date | 30 December 1953 |
| Citation | 265 Wis. 513,61 N.W.2d 849 |
| Parties | BRACKOB, v. BRACKOB (two cases). |
| Court | Wisconsin Supreme Court |
This divorce action was before this court on a prior appeal with respect to the division of property, award of support money for minor children and alimony for the plaintiff wife, and the award of attorneys' fees. That part of the prior judgment making division of property and awarding support money and alimony was reversed and the order awarding alimony and support money pending appeal was also reversed, and the cause remanded for further proceedings. Brackob v. Brackob, 1952, 262 Wis. 202, 54 N.W.2d 900.
After the remanding of the cause on the prior appeal, the trial court took further testimony under date of December 19 and 20, 1952, on the issues of division of property and award of support money and alimony, and under date of February 20, 1953, rendered a memorandum decision in which it determined the issues of property division, support money, alimony, and additional attorneys' fees to be allowed to plaintiff. Such memorandum decision contained the following computation showing the assets and liabilities of the parties as of the time of the conclusion of the first trial on December 6, 1951, the same being as follows:
Item Gross Value Deductions Net Value
Homestead $15,500 Mortgage $7,150.00 $ 8,046.70
Taxes 303.30
$7,453.30
Lot 1,000 Taxes
Sp. Assess. 105.90 894.10
Furniture 3,000 3,000.00
Car 2,000.00
Cash 2,700 Debts 1,579.79 1,120.21
Life Insurance 1,148.00
$16,209.01
In such memorandum decision the trial court pointed out that one-half of the net estate of the parties of $16,209.01 would be the sum of $8,104.45, and that it was advisable to award to the wife the homestead having a net value of $8,046.70, and furniture having a value of $3,000, or total assets of the value of $11,046.70. In order to so award said assets to the wife and not to exceed a 50 per cent allocation to her, the trial court determined to grant the defendant husband a lien against the homestead, and the memorandum opinion fixed the amount of such lien at $3,000.
The trial court further determined in the memorandum opinion that $75 per month was a reasonable amount of allow for the support of each of the minor children until each reached the age of 21 years, or completed his formal education, whichever event sooner occurs, and that $250 per month was necessary to be awarded to the plaintiff wife as alimony in order to support her fees in the sum of $150 also was provided for in the memorandum opinion.
Findings of fact, conclusions of law, and judgment were entered under date of March 31, 1953, which judgment provided for division of property, an award of support money, alimony, and additional attorneys' fees, as determined in the memorandum opinion, the judgment also granting plaintiff wife an absolute divorce. This second judgment provided that the monthly payments of alimony and support money were to be retroactive to January 1, 1952. The defendant husband thereupon served and filed a notice of appeal to this court from said judgment. Thereafter the trial court, upon the application of plaintiff, under date of May 5, 1953, entered an order awarding the plaintiff wife the sum of $250 per month alimony, and required the defendant also to pay for the benefit of the wife $225 per month support money for the three children, all pending the appeal, and further ordered the defendant to pay to plaintiff $250 suit money, counsel fees and disbursements to defend the appeal. The defendant has also appealed from this order.
Further facts will be stated in the opinion.
Eberlein & Eberlein, Shawano, for appellant.
Lloyd G. Andrews, Larson, Andrews & Milsap, Shawano, for respondent.
Counsel for the defendant husband raise the following issues on this appeal:
(1) That the trial court, in computing the net estate of the parties, should have determined the amount of defendant's debts and the equity in the cash surrender value of his life insurance as of the date of the 'second trial' instead of making such determination as of the date of the conclusion of the first trial approximately one year earlier.
(2) That if such debts and cash surrender value of life insurance were to be determined as of the conclusion of the first trial on December 6, 1951, then the defendant should have been awarded an increased percentage of the total net estate by reason of debts which he had incurred during the year intervening between the two trials.
(3) That the trial court awarded an excessive amount as support money for the minor children and alimony for the plaintiff wife.
(4) That the trial court abused its discretion in ordering payment of support money to each child until he or she had arrived at the age of 21, or completed his or her formal education, whichever should first occur.
(5) That the additional award of $150 attorneys' fees to wife's attorneys, and $250 attorneys' fees and suit money on the appeal, were excessive considering that the husband had already paid plaintiff's attorney fees and suit money in the sum of $750 for legal services rendered at the first trial and on the first appeal.
The first two of the above five contentions will be considered together.
At the conclusion of the original trial on December 6, 1951, the court from the bench granted a divorce to the plaintiff upon her complaint. The judgment of divorce, therefore, was effective as of that date. Zahorka v. Geith, 1906, 129 Wis. 498, 109 N.W. 552. In the absence of any exceptional intervening circumstances occurring in the meantime, such date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property.
The court awarded to the defendant husband, as part of his share of the division of property, the $2,700 cash on hand and life insurance policies having a cash surrender value of $1,148. As against the $2,700 cash on hand, the court deducted debts of the defendant in the sum of $1,579.79, thereby finding the net value of the cash on hand to be $1,120.21. Defendant does not dispute that $1,120.21 was the net value of the cash on hand, and $1,148 was the cash surrender value of his life insurance, as of December 6, 1951, but contends that there should be deducted from said values additional debts incurred by him in the ensuing year. Such additional debts consist of $825 which the defendant borrowed from his mother during 1952, and $1,250 which he borrowed on his life insurance under date of March 31, 1952. Defendant paid the total sum of $3,650 support money and alimony during the year period of December 1, 1951, to November 30, 1952, and, as will be hereinafter pointed out, his income in 1952 was sufficient to permit him to make such payment without the necessity of borrowing money to do so if he had practiced proper economies. Therefore, the facts that defendant lived on a scale beyond his means, or spent money in support of his mother and sister whom he was not obligated to support, thereby necessitating that he borrow money from his mother and the life insurance company, do not afford a justifiable basis for the trial court taking such additional debts into consideration in making the division of property.
By our prior decision on the first appeal we indicated that any division to the wife not exceeding 50 per cent of the net value of the total estate would not be an abuse of discretion by the trial court, and the subsequent division made by the trial court in the judgment now appealed from does not award to the wife more than 50 per cent of such net estate, and therefore will not be disturbed on this appeal.
We now turn to the contention made by the defendant that the trial court in the judgment and order appealed from has required the defendant to pay an excessive amount for the support of his three children and as alimony to the plaintiff wife. The total annual amount that the defendant is required so to pay is $5,700 per year. In referring to the matter of the amount of support money and alimony that the defendant husband should be required to pay this court, in its opinion on the first appeal, declared. 262 Wis. at page 208, 54 N.W.2d at page 904:
'The matter should be further studied in the court below with a view of determining the exact needs of the wife and children and the extent of the husband's income, which are the underlying factors in determining what allowance of alimony and support money shall be granted.'
Approaching the question from the standpoint of the needs of the children and wife, we find that during the year period beginning December 1, 1951, and ending November 30, 1952, the wife...
To continue reading
Request your trial
-
Stoner v. Stoner
...v. Williams, 175 Pa.Super. 409, 104 A.2d 499; Commonwealth ex rel. Rankin v. Rankin, 170 Pa.Super. 570, 87 A.2d 799; Brackob v. Brackob, 265 Wis. 513, 61 N.W.2d 849; note, 1 A.L.R.3d 6, 45. For the reasons hereinafter discussed, we are inclined to follow the third ' The depreciation charge ......
-
Wright v. Comm'r of Internal Revenue , Docket Nos. 830-72
...decree becoming effective when pronounced, relying on Seiler v. Seiler, 48 Wis.2d 400, 180 N.W.2d 627 (1970), and Brackob v. Brackob, 265 Wis. 513, 61 N.W.2d 849 (1953). Alternatively William contends that the portion of the judgment concerning the disputed payments became legally binding o......
-
Goninen v. Commissioner
...2d 92, 108 N.W. 2d 124 (1961); Brackob v. Brackob, 262 Wis. 202, 54 N.W. 2d 900 (1952), modified and affirmed after remand 265 Wis. 513, 61 N.W. 2d 849 (1953). Alimony and support money are, as a general rule, fixed upon the needs of the wife and children and on the ability of the husband t......
-
Lewis v. Commissioner
...the bench is the effective date of the divorce. Holschbach v. Holschbach, 30 Wis. 2d 366, 141 N.W. 2d 214 (1966); Brackob v. Brackob, 265 Wis. 513, 61 N.W. 2d 849 (1953). Further, the presiding judge in petitioner's divorce proceedings referred to the oral bench decree of December 23, 1975,......