Dixon v. Dixon

• Decision Date: 02 June 1982
• Docket Number: No. 81-127,81-127
• Citation: 107 Wis.2d 492,319 N.W.2d 846
• Parties: John T. DIXON, Petitioner-Respondent, v. Ethyl W. DIXON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 846

319 N.W.2d 846

107 Wis.2d 492

John T. DIXON, Petitioner-Respondent, v. Ethyl W. DIXON, Defendant-Appellant.

No. 81-127.

Supreme Court of Wisconsin.

Argued March 29, 1982.

Decided June 2, 1982.

Richard Rehm, Portage (argued), for defendant-appellant; Walker & Rehm, Portage, on briefs.

Fred D. Hollenbeck, Mauston (argued), for petitioner-respondent; Curran, Curran & Hollenbeck, Mauston, on brief.

ABRAHAMSON, Justice.

This appeal from a judgment of the circuit court for Columbia county, Andrew P. Cotter, circuit judge presiding, was accepted by this court on certification of the court of appeals. Sec. (Rule) 809.61, Stats.1979-80. The court of appeals identified two questions necessitating decision by this court: (1) Is evidence of misconduct admissible in determining maintenance payments; and (2) is an order requiring limited maintenance payments subject to later modification by the circuit court. The circuit court answered both questions in the negative. We agree with the circuit court's response to the first question but not with the response to the second. For the reasons set forth below, we vacate the judgment of the circuit court and remand the matter to the circuit court for further proceedings consistent with this opinion.

I.

The parties were married August 30, 1954, and the divorce action was commenced on May 7, 1979. At the time of the commencement of the action Mrs. Dixon was 46 years of age and Mr. Dixon, 47; one of the parties' three children was an adult and two were minors (ages 16 and 14).

Mrs. Dixon received a bachelor's degree in education in 1954. She taught during the academic years 1954-1955 and 1957-1958. Between 1958 and 1970 Mrs. Dixon was a full-time homemaker and also cared for her mother and for Mr. Dixon's mother. In 1970 Mrs. Dixon began substitute teaching, and in 1978 she sought full-time teaching employment but was unsuccessful. During the 1978 academic year she taught as a substitute teacher approximately four days per month during the nine-month academic year, earning approximately $32 a day.

Mrs. Dixon suffers from high blood pressure, hypertension and nervousness. The three physicians who testified disagreed as to the level of employment Mrs. Dixon could maintain without further impairing her health, one testifying that she could hold down a full-time job and two testifying that she could not.

Mr. Dixon has a master's degree in education. He is the general manager of Fort Dells and Wisconsin Ducks at the Wisconsin Dells. When the divorce action was commenced, his annual income was $21,700; at the time of the trial his income was $31,000 (gross monthly income of $2,583), plus fringe benefits, a company car and a $7,200 annual expense account. Neither party inherited assets or brought assets into the marriage.

The circuit court stated that it attempted to arrive at a property division which would give each party 50 percent of the estate but that because of the nature of the property an equal division was not possible. The total estate was valued at $52,554, the largest single asset being the homestead, which was appraised at $46,250 and subject to a mortgage of $19,360. The circuit court awarded the homestead to Mrs. Dixon on the basis that she was granted custody of the two minor children who were living at home. Sec. 767.255(7), Stats.1979-80. The court awarded Mr. Dixon a $11,000 lien on the homestead payable in November 1984 or upon the sale of the home, whichever occurs first.

Mr. Dixon's monthly net take-home pay at time of trial was $1,490.51. Mrs. Dixon's and the children's monthly budget was $1,047.25, and Mr. Dixon's was $1,430.31. The circuit court ordered Mr. Dixon to pay to Mrs. Dixon the sum of $500 per month as maintenance for a period of 30 months. The circuit court's conclusions of law stated that the court intended that the maintenance specified "shall be limited both in amount and as to the period of time within which the same is payable as provided herein and that said limited maintenance payments shall not be increased or decreased by virtue of any change in the economic circumstances of either of the parties hereto." The circuit court also provided that Mr. Dixon pay the sum of $50 per week per child for the support and maintenance of the parties' minor children.

II.

Mrs. Dixon contends that the circuit court erred in refusing to admit evidence of Mr. Dixon's alleged marital misconduct (adultery) in determining maintenance. According to Mrs. Dixon, marital misconduct is relevant to the determination of maintenance payments, and the statutes, specifically sec. 767.26(10), Stats.1979-80, provide that the court should, in determining maintenance payments, consider "relevant" factors. ¹

Sec. 767.26, Stats.1979-80, describes nine factors to be considered by the court in awarding maintenance. Marital misconduct is not on the list. The tenth consideration set forth in the statute, and the one upon which Mrs. Dixon relies, is a "catch-all" provision stating that the court may consider such other factors it determines to be relevant. Sec. 767.26 provides as follows:

"767.26 Maintenance payments. Upon every judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under s. 767.02(1)(g) or (j), the court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time after considering:

"(1) The length of the marriage.

"(2) The age and physical and emotional health of the parties.

"(3) The division of property made under s. 767.255.

"(4) The educational level of each party at the time of marriage and at the time the action is commenced.

"(5) The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.

"(6) The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.

"(7) The tax consequences to each party.

"(8) Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, where such repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.

"(9) The contribution by one party to the education, training or increased earning power of the other.

"(10) Such other factors as the court may in each individual case determine to be relevant." ²

The issue of law before this court is one of statutory construction, namely, is marital misconduct a relevant factor in granting maintenance under sec. 767.26(10), Stats.1979-80. Sunnyview Village v. Dept. Admin., 104 Wis.2d 396, 402, 311 N.W.2d 632 (1981).

This court has repeatedly stated that "[t]he aim of all statutory construction is to discern the intent of the legislature," Green Bay Packaging, Inc. v. ILHR Dept., 72 Wis.2d 26, 35, 240 N.W.2d 422 (1976), and that a "cardinal rule in interpreting statutes" is to favor a construction which will fulfill the purpose of the statute over a construction which defeats the manifest object of the act. Student Asso. U. of Wis.-Milw. v. Baum, 74 Wis.2d 283, 294-95, 246 N.W.2d 622 (1976). Where one of several interpretations of a statute is possible, the court must ascertain the legislative intention from the language of the statute in relation to its context, scope, history, and object intended to be accomplished. State ex rel. First Nat. Bank & Trust Co. of Racine v. Skow, 91 Wis.2d 773, 779, 284 N.W.2d 74 (1979).

A review of the legislative history of the 1977 Divorce Reform Act indicates that the legislature not only was aware of the issue of the relation of marital misconduct to maintenance but tried and failed to provide direction. Sec. 767.26 was enacted in 1977 as part of ch. 105, Laws of 1977, the 1977 Divorce Reform Act. The original bill submitted to the Assembly (1977 Assembly Bill 100) included as part of sec. 767.26 a provision expressly stating that the court may not consider the marital misconduct of either party in ordering maintenance payments. ³ An amendment to this bill deleted this provision. ⁴ Further amendment to the bill was proposed stating that in awarding maintenance payments the court shall consider "such other factors as the Court may in each individual case determine to be relevant, including the marital misconduct of either party." ⁵ This amendment was defeated. The legislature had the opportunity to make its intent perfectly clear as to whether the court must consider, may consider, or may not consider marital misconduct in ordering maintenance payments but apparently declined to do so. ⁶ In the absence of express language, we must nevertheless determine whether the legislature intended a court to exclude or include consideration of marital misconduct in awarding maintenance.

Mrs. Dixon argues that the legislature's failure to include an express direction to the court in sec. 767.26 not to consider marital misconduct means that the legislature intended to retain prior Wisconsin law allowing the court to consider marital misconduct in awarding alimony (now called maintenance). ⁷ While this argument has some merit, we find it unpersuasive for three reasons: First, the 1977 Divorce Reform Act is a sweeping reform which changed the divorce law in this state from a fault-based statute to a no-fault divorce law. With fault eliminated as a ground for divorce, we are not convinced that evidence of fault is...