DeWitt v. DeWitt, 78-925
Decision Date | 20 June 1980 |
Docket Number | No. 78-925,78-925 |
Citation | 296 N.W.2d 761,98 Wis.2d 44 |
Parties | John R. DeWITT, Plaintiff-Appellant, v. Janice M. DeWITT, Defendant-Respondent. |
Court | Wisconsin Court of Appeals |
Daphne Webb and Easton & Harms, S. C., of counsel, Madison, for plaintiff-appellant.
Cheryl Rosen Weston, Madison, for defendant-respondent.
Before GARTZKE, P. J., and BABLITCH, and DYKMAN, JJ.
This case presents a question of first impression in Wisconsin; whether a professional education, or the increased earning capacity which it confers on the spouse who holds it, may properly be considered an "asset" of a marital estate, subject to division in a divorce action, where the acquisition of the degree is in part attributable to the earnings and efforts of the other spouse.
John R. DeWitt (plaintiff) appeals from a judgment entered November 10, 1978, awarding a divorce to Janice M. DeWitt (defendant) on the grounds of cruel and inhuman treatment pursuant to former ch. 247, Stats. (1975). The plaintiff makes the following contentions on appeal:
(1) That granting the divorce to the defendant was against the great weight and clear preponderance of the evidence.
(2) That the trial court erred in considering his law degree as an asset for distribution in dividing the marital estate.
The parties were married in 1968. The couple's only child, Justin, was born in December of that year. The defendant had just completed her first year of college and the plaintiff had completed one semester of college at the time of the marriage.
The plaintiff resumed college in the fall of 1968, and continued as a fulltime student until he obtained his law degree in 1975. He joined his father's law firm until May 1978, when he entered his own practice with two other attorneys. He also taught parttime at the University of Wisconsin business school. The trial court's finding that the plaintiff's practice had no net value at the time of the trial is not challenged on appeal.
During the years of the plaintiff's schooling, the defendant worked fulltime at several jobs, predominantly as a legal secretary. She also worked parttime assisting her husband in several business ventures, including the management of two apartment buildings, providing commercial janitorial services, running a restaurant, and developing a legal audio-visual recording service. She testified that she performed most of the household tasks, handled the family finances, and provided most of the care for the child during this time.
The plaintiff worked at various jobs, usually on a parttime basis, during the years he attended school. He also did extensive remodeling work on an apartment building the couple purchased in 1969, and in which they lived rent-free for more than a year. The downpayment of $1,000 was obtained from the sale of some stocks the plaintiff owned prior to the marriage. The building was sold at a profit in 1973, and a portion of the sales proceeds was used to purchase a home upon which the plaintiff also performed substantial work. The parties subsequently purchased a second home, which the defendant was in the process of remodeling at the time of trial.
After the plaintiff graduated from law school, the defendant quit her fulltime employment and returned to college on a parttime basis. She completed seven credits at the University of Wisconsin-Madison in the 1975 fall semester and then enrolled in the Madison Area Technical College, where she completed an associate degree in accounting during the following year. She testified that she intended to return to the university as a fulltime student in the fall of 1978, and that she wished to obtain her bachelor's degree there. The defendant also testified that at the time of the marriage she and the plaintiff agreed that it would be financially preferable for the plaintiff to attend school and complete his law degree first, and that she would then complete her college education. The plaintiff testified that there was no such understanding at the time of the marriage. He said that he would not have had to rely on his wife's financial support for his education because his family would have helped him through school, had he requested.
The parties experienced marital difficulties and separated for a short time in 1976. An attempted reconciliation failed and the plaintiff commenced this action in January 1977, on grounds of cruel and inhuman treatment under former ch. 247, Stats. (1975). 1 The defendant counterclaimed for divorce on the same grounds.
The trial court found that both parties were guilty of cruel and inhuman treatment during the marriage. It awarded the divorce to the defendant under the doctrine of comparative rectitude, 2 finding that the "scope and effects of the acts of cruel and inhuman treatment perpetrated by the plaintiff are greater than those acts on the part (of the defendant) directed towards the plaintiff."
The court's findings of fact recite that it was "impossible to trace the assets and contributions of the parties within the context of the joint venture of the marriage" because of the variety of investments and reinvestments made by the parties from earnings, loans, and a personal injury settlement received by the defendant. The court found, however, that "their contributions were by no means equal," and that the defendant contributed a total of $21,226 more than the plaintiff to the support of the family during 1968 through 1975. Since the trial court's computations are not of record, it is not possible for this court to determine which exhibits or testimony the trial court relied on in arriving at this figure. 3 It is also unclear why the trial court considered the comparative contributions of the parties only during the years the plaintiff attended school, and not their contributions during the following year when the defendant was in school and the plaintiff's income was substantially higher than in prior years. 4
The trial court found that the parties owned assets of $80,047 5 and owed debts totaling $55,245, for a net marital estate of $25,802. It found that the plaintiff had an earning capacity of $20,000 per year, that the defendant's earning capacity was $9,000 per year, and that neither party was entitled to alimony. 6
The court awarded the defendant the homestead subject to an outstanding mortgage of $18,021, together with personal effects and cash resulting in a gross award to her of $45,172 and a net award of $37,151. The plaintiff was awarded the other home and personal property totaling $34,875. 7 He was ordered to assume the land contract on that home and to pay all the remaining debts of the parties in the total amount of $37,224. This resulted in a negative net award to the plaintiff of $3,349.
The trial court further found that the defendant temporarily gave up her own education in order to care for the parties' child and to support the family while her husband obtained his law degree. It found that while the law degree had no "market value," it had "the intrinsic potential for deriving future and substantial income so as to be considered an asset in the distribution of property in the present case." It made the following conclusions of law, which present the core of the controversy on appeal: 8
13. The Court concludes that under the terms of this property division, if the property is to be divided on a 50-50 basis the defendant would owe plaintiff the sum of $15,660. The Court subtracts from this sum the support arrearages of the plaintiff in the amount of $1,344 giving a difference of $14,316.
14. In considering and valuing the worth of said law degree as an asset of the parties, the Court is in agreement with the opinion of the Supreme Court of Iowa in the case entitled, "In re the Marriage of . . . Horstmann," 263 N.W.2d 885 (Iowa 1978).
15. The Court further concludes that the value of the plaintiff's law degree is not less than $14,316 and, therefore, requires no cash contribution from the defendant to the plaintiff.
The plaintiff concedes on appeal that the question of which party takes a divorce against the other is of "very little significance" except to the extent that the property division may favor one party on the basis of a finding that the other party was guilty of more egregious conduct during the marriage. Under former ch. 247, Stats. (1975), which is applicable to this action, fault was a proper consideration in dividing marital estates, 9 although it could not be used to punish a guilty spouse. 10 The plaintiff's brief indicates that he raises the issue of grounds because the final judgment is "so totally against him that it appears that the divorce was given to the defendant to rationalize the judgment which so much favored her."
We find no reason to believe that the trial court's award to the defendant of more than 100 percent of the net marital estate, excluding the value assigned to the law degree, was based upon a comparison of the relative fault of the parties. Rather, it is apparent from the court's conclusions of law, quoted above, that it intended to divided the estate equally, and then to award the defendant an additional sum to recompense her for her financial contribution to the support of the family and for the postponement of her education while the plaintiff obtained his law degree.
We find it unnecessary to detail in this opinion the specific instances of cruel and inhuman treatment claimed by each party. We have examined the record, and conclude that both parties engaged in conduct which contributed to the dissolution of their marriage. While we might have reached a different result on this issue, the trial court was entitled to balance the equities as it saw them, and its findings must be upheld unless they are against the great weight and clear preponderance of the evidence. Heiting v. Heiting, 64...
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