Cozik v. Cozik

• Decision Date: 05 January 1968
• Docket Number: No. 40305,40305
• Citation: 279 Minn. 91,155 N.W.2d 471
• Parties: Mary L. COZIK, Respondent, v. Joseph J. COZIK, aka Joe Cozik, Appellant.
• Court: Minnesota Supreme Court

Page 471

155 N.W.2d 471

279 Minn. 91

Mary L. COZIK, Respondent, v. Joseph J. COZIK, aka Joe Cozik, Appellant.

No. 40305.

Supreme Court of Minnesota.

Jan. 5, 1968.

Syllabus by the Court

Under Minn.St. 518.58 the trial court has a broad discretion in determining what property acquired during coverture should be awarded to a wife in a divorce proceeding. Ordinarily, exercise of such discretion will not be disturbed on appeal if it is within reason, but the court's power is subject to review and is not without limitation. In this case, where husband and wife both contributed substantially toward acquisition of their joint property, it was not proper to award the wife substantially more than half of such accumulated property.

Danforth & Allen, Minneapolis, for appellant.

Pemberton, Michaels, Bishop, Seeger, & Rosenblad, Rochester, for respondent.

OPINION

KNUTSON, Chief Justice.

This is an appeal from an order denying defendant's motion for amended findings of fact, conclusions of law, and order for judgment or in the alternative for a new trial.

The action involves one for divorce. Defendant was born in Czechoslovakia and came to this country at an early age. While serving in the army he met plaintiff, who was then a USO hostess. After defendant left the army, he married plaintiff. They went to Rochester, Minnesota, to visit defendant's mother and decided to remain there. At the time of the marriage plaintiff had about $500 and defendant about $4,000. They both went to work, she as a waitress in various restaurants and he as a plumber. Later, defendant established his own plumbing business.

Four children were born of the marriage, namely, Veronica, born September 19, 1948; Joseph John, Jr., born May 19, 1950; Deborah, born August 27, 1951; and Martin, born July 20, 1953.

Between the births of these children plaintiff continued to work intermittently as a waitress. The income tax returns of the parties show that from 1950 through 1964 defendant earned as a plumber or in the plumbing business the sum of $68,471. For the same period the returns show that plaintiff earned $2,650 as a waitress, but, as the trial judge indicated in his findings, this was exclusive of tips, which were not shown on the tax returns.

Plaintiff helped defendant in the plumbing business by keeping his books, answering calls, making out checks for material, and in other ways.

In the early fifties defendant acquired a vacant lot and in his spare time built a house on it which has served as the family homestead. The family lived in the basement until the house was completed. It contains an apartment on the basement level which for some time has been rented for $125 per month and is still so rented. The house was built largely by defendant. Even plaintiff admits that he worked hard, using all of his spare time in completing it. The court found that the house now has a value of $34,000, which is about midway between plaintiff's and defendant's estimates of its worth. It is free of encumbrances, never having been mortgaged.

Sometime after the house was built the parties acquired another piece of property on which they built a motel. Here again much of the work was done by defendant, although it appears that a contractor did substantial carpentry work. Plaintiff helped out by doing some sanding and cleaning up and other incidental work of that kind. When the motel was completed, they rented it. Defendant contends that his mother operated the motel, but there is evidence that plaintiff helped by renting rooms and looking after the motel when the mother was not there. In 1962 the motel was sold for $110,000, which represented a profit on the parties' investment in it of some $53,000. The proceeds of the sale of the motel were put in a savings account in the joint names of the two parties.

Aside from the homestead and this savings account, which at the time of the divorce amounted to $92,300, the parties owned a vacant lot valued at about $5,000; some Investors Mutual stock worth about $6,000; an insurance policy having a cash value of about $2,000; furniture and household goods worth about $3,000; and two automobiles. While there is disagreement as to the value of individual items of the property owned by them, the parties agreed that the aggregate value of the property at the time of the divorce was $150,000.

Plaintiff sued defendant for divorce in July 1964, alleging cruel and inhuman treatment. Defendant interposed a countersuit, which he later withdrew with the understanding that such withdrawal would not prejudice his rights as to other issues to be litigated. Thereupon plaintiff was permitted to procure a divorce by default.

On July 6, 1964, plaintiff made application for temporary alimony and child support. The court granted this motion on July 20, giving plaintiff custody of the children and awarding her $250 per month temporary alimony and an equal amount for temporary child support. Pursuant to stipulation of the parties this order was vacated and a new order issued September 16, 1964, which required defendant to pay $125 per month temporary alimony and $200 per month temporary child support. The order of September 16 permitted defendant to withdraw $27,000 from the savings account, which had been impounded, but required him to pay plaintiff $7,000 of this, of which $1,000 was for temporary alimony and child support due under the July order.

Defendant having defaulted in making the required payments, on March 3, 1965, plaintiff moved to compel him to make them. The court heard this motion on March 5 and reaffirmed the September 16 order in so far as it pertained to alimony and support. After this hearing defendant apparently made the payments required through March 1965, but he again defaulted in subsequent months.

Trial of the divorce action was commenced on August 24, 1965, defendant contesting only the division of property and the custody of the children. On November 3, 1965, the court issued its findings and conclusions and order for judgment. It awarded plaintiff custody of the children and granted defendant rights of visitation. Defendant was required to pay $200 per month for the children's support. He preferred to pay alimony in a lump sum. The court awarded plaintiff lump-sum alimony of $12,000, which was about midway between the amounts suggested by plaintiff and defendant. It awarded her the homestead, valued by the court at $34,000, and $42,320.01 of the joint savings account less the $6,000 previously withdrawn pursuant to the order mentioned above. It gave her the household goods, the mutual fund stock, some other items of property, and attorneys' fees in the sum of $3,500. Defendant was given the balance of the property. The court made a later adjustment whereby defendant was given $3,000 on account of an error in the court's computation, so that the final adjustment left to plaintiff property valued at $88,056.81 and to defendant property worth about $62,880.

On November 9, 1965, defendant made a motion to eliminate nunc pro tunc and retroactive to April 1, 1965, all accrued temporary alimony payable under the order of September 16, 1964, and to eliminate certain of the payments for child support required by that order, due to the fact that one of the children had gone to work and was partially supporting herself and one of the other children had been cared for by defendant during part of the year. This motion was denied by the court on February 21, 1966, except for the adjustment in the sum of $3,000 given defendant due to the court's error in computation.

On November 5, 1965, a few days after the court's findings were entered in the divorce case, a hearing was held to determine whether defendant should be held in contempt for his failure to make the required alimony and support payments pending the trial of the case. At this hearing defendant endorsed a check to plaintiff which was in an amount sufficient to cover arrears in alimony and child support. In spite of this, on February 21, 1966, the court found defendant to be in contempt of court for failure to pay the alimony and support, but stayed imposition of sentence for a period not to exceed one year.

Defendant's appeal raises substantially three questions: (1) Did the court abuse its discretion in awarding plaintiff an excessive amount of the property of the parties? (2) Was it error to deny defendant's motion to amend nunc pro tunc the order relating to temporary alimony and child support? (3) Was it error to hold defendant in contempt of court after he had paid all arrears in temporary alimony and support?

The relevant statutory provisions are Minn.St. 518.58, ¹ 518.59, ² and 518.60. ³ Prior to 1951 the amount of the husband's property which the court could award to a wife in a divorce was limited to an amount not exceeding one-third thereof. Minn.St.1949, 518.22. Other provisions provided for awarding to the wife her own property, alimony, etc. This statute was amended by L.1951, c. 551. Section 5 of c. 551 contains the provision now found in Minn.St. 518.58, and we have frequently held that under this provision the court has a wide discretion in determining how much property should be awarded to the wife. We will not interfere with the exercise of such discretion if it is within reason. ⁴

However, the broad discretion granted to the trial court under these statutory provisions is not without limitation. It is subject to review. Obviously, the court could not give to the wife all the property of the parties unless there was something unusual about the case. In this case nothing appears in the record that would indicate that either of the parties was guilty of any conduct for which he or she should be penalized. There is no claim of adultery, infidelity, or other serious misconduct. At the worst it seems that ...