Dittberner v. Dittberner, 113
| Decision Date | 02 May 1972 |
| Docket Number | No. 113,113 |
| Citation | 54 Wis.2d 671,196 N.W.2d 643 |
| Parties | Della M. DITTBERNER, Respondent, v. George W. DITTBERNER, Appellant. |
| Court | Wisconsin Supreme Court |
Della M. Dittberner, plaintiff-respondent (hereinafter plaintiff), was granted an absolute divorce from George W. Dittberner, defendant-appellant (hereinafter defendant). The judgment of divorce awarded the plaintiff custody of the four children born of the marriage, and provided for their support and maintenance. This is an appeal from the order denying defendant's motion to review and modify that portion of the judgment providing for the support and maintenance of the children. 1
Lueck & Skupniewitz, Beaver Dam, for appellant.
Brenner & Brenner, Waukesha, for respondent.
The sole issue on this appeal is whether the trial court abused its discretion in directing the defendant to pay $450 a month for the support and maintenance of the children.
If appears from the record that the plaintiff was thirty-six years of age. She was employed as a machine operator and part-time waitress. Her net weekly income from both jobs was $66.72. The defendant was forty years of age. He operated a gasoline service station and had a gross income of approximately $54,000 a year and a net income in excess of $13,000. Among the assets of the parties was a homestead owned in joint tenancy with an appraised value of $17,800, subject to an unpaid balance on a mortgage in the amount of approximately $6,600 requiring monthly payments in the amount of $124.
During the divorce proceedings, an extended conference took place in chambers which resulted in an agreement and stipulation between the parties. The stipulation was read into the record by plaintiff's counsel and approved by the plaintiff, the defendant, and the trial court, and made a part of the judgment. The stipulation provided that the plaintiff be awarded custody of the children. She was to receive $8,500 as a full and final property settlement, awarded as an equitable lien on the homestead premises until the sum was paid. The defendant was awarded the homestead premises, subject to the equitable lien and plaintiff's right of possession until the youngest child became emancipated, reached the age of twenty-one, or until the plaintiff remarried. The defendant was obligated to pay the major medical and dental expenses of each child (over $15) and major repairs on the homestead premises (over $10). He was also to pay the mortgage installments, insurance and real estate taxes on the homestead. Alimony was held open, reviewable only in the event plaintiff became a public charge. We consider the other provisions of the stipulation and judgment not pertinent to the issue presented on this appeal.
At the conclusion of the divorce trial and immediately following the trial court's advertisement to the parties as to the effect of the divorce decree, plaintiff's attorney stated he had neglected to read into the record the provisions for child support. Whereupon, the court stated: The defendant answered yes.
Findings of fact and conclusions of law were made by the trial court after having been approved as to form by both counsel. However, the judgment that was entered was not approved as to form by the defendant's attorney.
Thereafter, defendant petitioned the trial court to amend the judgment, alleging he did not agree to the entry of judgment of $450 support money, and that all he could afford to pay was $232 per month, the amount directed by the Family Court Commissioner in his temporary order. At the outset of the hearing on the petition, the trial court stated it was satisfied that the judgment reflected the understanding of the parties in regard to the amount defendant was obligated to pay for support of the minor children. The court then allowed defendant to present testimony on a motion to amend the judgment based on a change in circumstances.
Defendant presented various budgeted items of personal and business expenses. These expenses totaled $3,183.31 per month, exclusive of personal federal and state taxes and social security payments. Defendant then testified that at the trial, nothing was said in chambers in regard to the amount of support money he would be required to pay but that judgment was simply entered for $450 per month. Plaintiff's counsel interposed an objection, but the court allowed the testimony stating, The court then stated its own recollection to be that defendant had a net income of approximately $1,000 per month and used this figure in calculating the amount of support money which, in addition to the monthly payment on the house, left the defendant with over $100 per week for his own personal living expenses. Following a discussion concerning defendant's gross and net income, the court affirmed the order as reasonable. Defendant then stated, The court again pointed out to the defendant that he had ordered him to pay approximately one-half his income to his family which after deducting his budgeted expenses, left him $100 per week. Defendant indicated he didn't think it cost him more than $100 per week to live.
On cross-examination, defendant denied being asked in chambers by the trial court if he could afford to pay $450 per month for support. He acknowledged, however, that the in-chambers conference dealt extensively with a consideration of his income and the needs of the plaintiff and children. Counsel then stipulated that plaintiff could present evidence of what transpired at the conference. The trial court, however, stated it would be unnecessary for plaintiff to present evidence at that time and affirmed the judgment as both reasonable and equitable. Accordingly, an order was entered affirming the judgment and denying the defendant's motion to amend the same.
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