Foregger v. Foregger
| Decision Date | 26 November 1968 |
| Citation | 162 N.W.2d 553,40 Wis.2d 632 |
| Parties | Eleanor H. FOREGGER, Respondent, v. Richard FOREGGER, Appellant. |
| Court | Wisconsin Supreme Court |
Ruppa & Wegner, Norman W. Wegner, Milwaukee, of counsel, for appellant.
Ray T. McCann, Leonard L. Loeb, Milwaukee, of counsel, for respondent.
Three issues are presented on this appeal:
(1) Did the trial court err in entering duplicitous orders and in retroactively increasing support payments for 1966 and 1967?
(2) Did the trial court err in the manner in which it enforced its initial judgment concerning the sale of real estate?
(3) Did the trial court abuse its discretion in ordering the defendant's share of the proceeds of the sale of real estate to be held in trust as a penalty for contempt in failing to keep a $100,000 life insurance policy in force as required by the judgment of divorce?
Appellant objects to that portion of the order of the trial court which provided that the support payment arrearage was $5,125. This figure was computed as follows:
Arrearage shown on alimony
card as of 12/67 $6,232.00
Retroactive increase for 1966-
1967 2,000.00
---------
$8,232.00
Less
Equitable credits--duplication
of food costs $3,107.00
---------
Total arrearage $5,125.00
[40 Wis.2d 641] Equitable Credits
Appellant is responsible for the educational and medical expenses incurred by his children. Thus, he contends that for the period of time when the children were away at school or in the hospital it was improper for him to be charged with support payments. It is his contention that when paying for the children's expenses away from home he is, in effect, paying double if he is also required to make support payments to the wife.
From the time the trial court made its initial order requiring appellant to pay for educational expenses, the trial court recognized the possibility of a duplication in the various orders. However, the court deferred any final determination on this matter until after it received the recommendations of the court commissioner.
The proper method for revising or modifying a judgment in a divorce case is set forth in sec. 247.25, Stats., which provides:
The appellant never petitioned the trial court pursuant to the above statute to have the support payments reduced on the ground of duplication. Rather, appellant unilaterally reduced his support payments and the matter came before the court only when the defendant was brought in for possible contempt of the court's 1964 divorce judgment; in these proceedings appellant claimed that he was entitled to certain equitable offsets against the alleged arrearage in support payments due to the fact that educational, medical, and support orders required him to pay double for room and board expenses. The court ruled that even though there had been no petition to the court under sec. 247.25, Stats., it was proper for the court to consider equitable offsets in the contempt proceeding. The court stated:
Also, in its order of June 6, 1967, the court stated:
'* * * there has been no motion on behalf of the defendant to reduce the support payment however there is an assertion of offsets construed as equitable in nature against this arrearage in support payments which is contested on behalf of the plaintiff, and this referred to offset, if any, referred to the family court commissioner for determination and recommendation as to offset on the arrearage and what amount child support should be set in the future as to the children based upon present circumstances; said family court commissioner shall make its recommendations to the court promptly so that a final determination in this respect may be had, at the hearing hereinafter scheduled by this court.'
In late 1967, Court Commissioner Moskowitz determined that the only item of duplication was the cost of food which he computed at $52 per month per child. He found that items such as shelter, pocket money, laundry, clothing, telephone, continued regardless of whether the children were at home or away. At the hearing before Judge HANSEN, Court Commissioner Moskowitz testified:
'* * * when the child leaves the home, the clothing, the laundry, utilities, children's recreational expenses, and the shelter, including taxes, insurance, mortgage, contingency for maintenance and repairs, those all continue, so the child being away from home the only relief the mother has is the relief of supplying the food, * * *.'
The food credits computed for the period that the children were away from the home totaled $3,107. The court adopted this finding.
In Chandler v. Chandler 2 this court set out two tests for reviewing a trial court's modification of a divorce judgment Where the modification rests entirely on a factual determination, the test is whether the determination is contrary to the great weight of the evidence. However, where the modification rests primarily on an exercise of discretion, the test is whether there was an abuse of discretion by the trial court.
On this issue the court is dealing entirely with a factual determination. The trial court adopted the finding of the court commissioner that only food costs at $52 per month per child were duplicated. The appellant does not appear to dispute the particular findings of the commissioner, but simply argues that the appellant should make no support payments for the period of time when the children were away from home. Such an argument cannot prevail. There is no showing that the findings adopted by the trial court are against the great weight of the evidence.
Retroactive Support Increase.
When the matter of appellant's claim for equitable offsets came before the court commissioner, the respondent argued that if the support question was open for one purpose it was open for all purposes. Thus respondent contended that the court commissioner should look to the actual costs involved in supporting the children for the period covering the arrearage and if costs exceeded $500 per month, the support payments should be raised retroactively.
The court commissioner recommended that support payments be increased $2,000 for both 1966 and 1967. The trial court reduced the increase to $1,000 per year.
But did the trial court (and the court commissioner) have authority to enter such a retroactive support order?
There is no question but that plaintiff did not petition the court to revise and modify the support judgment under sec. 247.25, Stats. That statute provides:
The whole tenor of the statute seems to envision prospective relief. Thus, when a change of circumstances arises which requires a change in support payments, the statute requires the party seeking the change to petition the court for relief.
Holschbach v. Holschbach 3 lends support to the view that sec. 247.25, Stats., grants only prospective power to the trial court. In that case a legal separation was pronounced on August 5, 1963. However, the court indicated that a number of matters including alimony and support money were to be determined at a later time. These determinations were made on June 29, 1964, at which time the defendant was ordered to pay $74 per week support money, $1 per week alimony, and $500 in attorney fees. On appeal, however, counsel for defendant called this court's attention to the fact that between the oral pronouncement of legal separation on August 5, 1963, and the entry of judgment on June 29, 1964, the trial court had determined that the parties were to be governed by an order of the family court commissioner dated December 20, 1962. This order required defendant to pay $50 per week support money and did not require temporary alimony. Thus this court concluded that because the judgment of June 29, 1964, was entered as of August 5, 1963, 'it retroactively increased the payments he had been required to make.' 4 The court concluded that the judgment should be modified to eliminate that retroactive effect.
In Chandler v. Chandler, 5 where the court was dealing with a prospective modification requiring the defendant to pay an additional $20 per month for a child to attend summer camp, this court noted, in response to the defendant's argument that the child might not even go to camp, that 'the circuit court would have the power to grant retroactive relief by reducing future support payments until the amount of any overpayments on defendant's part had been recouped.' 6
Thus, we conclude that...
To continue reading
Request your trial
-
Paternity of Roberta Jo W., In re, 96-2753
...Schmitz, 70 Wis.2d 882, 891, 236 N.W.2d 657 (1975); Miller v. Miller, 67 Wis.2d 435, 439, 227 N.W.2d 626 (1975); Foregger v. Foregger, 40 Wis.2d 632, 645, 162 N.W.2d 553 (1968); Greenwood v. Greenwood, 129 Wis.2d 388, 391, 385 N.W.2d 213 (Ct.App.1986); Strawser v. Strawser, 126 Wis.2d 485, ......
-
Robinson v. Coppala
...(1995) (holding that trial court had authority to secure the child support with decreasing term life insurance); Foregger v. Foregger, 40 Wis.2d 632, 162 N.W.2d 553, 561 (1969) (finding that trial court has the power to order a father to continue in force life insurance policies for the ben......
-
Grotsky v. Grotsky
...age of twenty-one.' 108 N.W.2d at 126. See Trowbridge v. Trowbridge, 16 Wis.2d 176, 114 N.W.2d 129, 133 (1962); Foregger v. Foregger, 40 Wis.2d 632, 162 N.W.2d 553, 561 (1968). In Riley v. Riley, 131 So.2d 491 (Fla.App.1961), the District Court of Appeals upheld, as a proper security measur......
-
In re Paternity of John RB
...cancellation of arrearages because the findings in the underlying child support order had been incomplete); Foregger v. Foregger, 40 Wis. 2d 632, 641-43, 162 N.W.2d 553 (1968)5 (upholding offset of duplicative child support payments against arrearages). Subsequent to 1983, when the oral mod......