Burg v. Burg
| Decision Date | 08 October 1957 |
| Citation | 85 N.W.2d 356,1 Wis.2d 419 |
| Parties | George J. BURG, Appellant, v. Marinellis BURG, Respondent. |
| Court | Wisconsin Supreme Court |
Alvin L. Zelonky, Milwaukee, for appellant.
Cyril C. Foster, Milwaukee, Luke J. Kauth, West Bend, of Counsel, Divorce Counsel Wash. Co., for respondent.
Appellant complains that the division of property takes substantially everything from him and gives it to the respondent; that, contrary to sec. 247.26, Stats., the trial court did not give due regard to his legal and equitable rights. While the division would appear to be one-sided in the wife's favor, there are a number of factors in this case, which, in our opinion, justify the trial court's determination in that respect.
For a period of two years while the parties lived in Milwaukee the wife took in roomers and the room rent contributed to the improvement of their property and the family savings. On the basis of respondent's undisputed testimony it is reasonable to say that that contribution amounted to approximately $3,000. Realizing $4,500 from the sale of the Milwaukee home in 1950, the parties paid that amount down on the Newburg farm. In awarding the respondent the homestead property, the trial court undoubtedly took into account the fact that she had contributed probably more than half its net value at the time of the division.
What is the most important factor, however, is that respondent has the custody of the four children, aged 16, 13, 8 and 5 at the time of trial. She needs a home for these children; they need her care and attention and will need it for some time. Respondent is under doctor's treatment for a heart ailment; she is unable to do any work but housework, and if she got a job she would have to hire someone to look after the children. On the other hand, respondent can realize about $125 a year income from the farm, and she provides room and board to an uncle who pays her $10 a week and works the land.
We consider the allowance to the wife in this case as being to a large extent for the benefit of the children. Considering the welfare of the children, no fair and reasonable alternative to awarding respondent the homestead property was presented to the trial court; appellant suggested none either at the trial or on this appeal. In fact, it appears to us that had the trial court simply divided the property according to some theoretically equitable one-third or one-half formula, such a determination would undoubtedly have resulted in greater burdens to the appellant in the future than those of which he now complains.
'The division of property in divorce cases is a matter peculiarly within the discretion of the trial court, and depends upon the circumstances of the particular case.
"* * * the ages of the parties, their condition of health, their competency to earn money, the manner the property was acquired, the situation as to probable family burdens after the divorce, the nature of the property, and all other circumstances bearing on the question of an equitable distribution, are to be taken into consideration.' Gauger v. Gauger, 1914, 157 Wis. 630, 632, 147 N.W. 1075, 1076.' Hoffman v. Hoffman, 1955, 270 Wis. 357, 359, 71 N.W.2d 401, 402.
Considering the small size of this estate and all the other circumstances which were presented, we see no abuse of the trial court's discretion in the division made.
Nor do we see any reason to disturb the judgment in any other respect. As to the desirability of retaining jurisdiction on alimony, the record discloses a set of facts quite different from those in Hansen v. Hansen, 1951, 259 Wis. 485, 49 N.W.2d 434, relied on by appellant. There the divorce was granted to the husband because of the wife's misconduct, the husband was given custody of four of the parties' six children, and there was nothing in the record to indicate that the wife might need alimony in the future. Here the divorce is granted to the wife on the ground of the appellant's misconduct; she has custody of all four children; and there is evidence respecting her health which might give rise to a future need for alimony.
Appellant maintains that the support money award of $140 per month for the four children is excessive and arbitrary in view of the amount of his earnings. His monthly net take-home pay is about $310. It is true he has other obligations, but we cannot concur in the view that it is impossible for him to pay the support money ordered by the court. It will undoubtedly be inconvenient, even difficult, for him to do so; he may be unwilling to make the personal sacrifices necessary to do so; but the court's primary concern is the need of the children, and appellant does not suggest that the amount awarded is excessive when viewed in that light.
All of the matters on which appellant seeks reversal or modification of the judgment are matters within the discretion of the trial court and in our opinion the court exercised that discretion judiciously and with due regard to the rights of the parties under the particular circumstances of this case.
Judgment affirmed.
Granting that it is well established in this state that division of property in divorce proceedings depends upon the particular facts of the case and...
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