Foregger v. Foregger

• Decision Date: 03 November 1970
• Docket Number: No. 196,196
• Citation: 48 Wis.2d 512,180 N.W.2d 578
• Parties: Eleanor H. FOREGGER, Respondent, v. Richard FOREGGER, Appellant.
• Court: Wisconsin Supreme Court

Page 578

180 N.W.2d 578

48 Wis.2d 512

Eleanor H. FOREGGER, Respondent, v. Richard FOREGGER, Appellant.

No. 196.

Supreme Court of Wisconsin.

Nov. 3, 1970.

This is the third appeal in this troublesome case. ¹

A judgment of absolute divorce was granted to the plaintiff-respondent wife in 1964. At the time the divorce was granted the parties were in their late forties or early fifties; they had been married about twenty-two years; the wife was well educated and was occupied as a housewife; the husband was a physician and surgeon with his practice limited to anesthesiology; his reported net income was slightly in excess of $20,000; they had four minor children, Thomas, born in 1946, Joseph, born in 1947, Michael, born in 1950, and Jane, born in 1955.

Pursuant to the judgment the custody of the children was awarded to the wife; the stocks and bonds were divided,--60 percent to the husband, 40 percent to the wife; the homestead was awarded to the parties as tenants in common,--60 percent to the husband, 40 percent to the wife; the wife was given the household furniture and effects and the right of possession; the husband was obligated to pay taxes, insurance and major maintenance expenses; the home was to be sold within two years by the parties if they could agree and, if not, the court would fix an upset price and order a sale; $200 alimony and $500 support money per month was awarded to the wife; the husband was ordred to pay the necessary medical and dental expenses of the minor children, and to pay for their educational expenses, including college, until they reached the age of twenty-one; in the event the wife purchased the home and was thereby required to pay taxes, insurance and upkeep costs, the alimony and support money were both to be increased $100 per month; and the husband was ordered to deposit with the clerk of court any pay the premiums on three insurance policies on his life, totaling $125,000, until each child reached twenty-one years of age as a 'trust fund or reserve fund.'

Many things of a litigious nature have transpired between the parties since the entry of the judgment in 1964. They will not be repeated except as they are necessary for a determination of the issue.

Because the plaintiff-wife had obtained employment at a substantial salary the trial court suspended alimony. This order was appealed by the wife. This court was evenly divided on the question and the order was affirmed without opinion in 1965. ²

The house was not sold as contemplated by the judgment; in fact it was not sold until April of 1969. It was sold to the wife at an upset price of $54,000.

Contempt proceedings were instituted and heard because of the defendant's failure to pay the education expenses, and the court ordered support money for the minor children.

The defendant-husband allowed the $100,000 policy to lpase and was found in contempt by the trial court in an order dated February 22, 1967. The penalty for such contempt was determined in an order dated December 29, 1967. It provided that defendant's share of the proceeds of a sale of real estate by the defendant to the plaintiff were to be deposited with the clerk of court and invested as a trust fund for the protection of the minor children. It further provided that these funds were to be retained until: (1) the $100,000 policy was reinstated; (2) substitute insurance for the same coverage was obtained, or (3) the defendant died and the proceeds would be turned over to a trustee.

The order of December 29, 1967, also provided that the support be increased to $150 per month for each of the two remaining minor children.

The defendant-husband appealed. Prior to that appeal the trial court entered an order dated April 4, 1968, which provided in part that defendant was to tender to the clerk of court $1,500 toward plaintiff's contemplated appellate fees.

On that appeal this court affirmed that part of the order providing the contempt penalty, holding that the trial court did not abuse its discretion in making such an order. This court also modified and affirmed other portions of the order appealed from and granted one-half the costs to defendant. Foregger v. Foregger (1968), 40 Wis.2d 632, 162 N.W.2d 553, 164 N.W.2d 226.

The sale of the home was completed about April 7, 1969, and defendant's net share of the proceeds, approximately $27,000, were deposited witht he clerk of court pursuant to the contempt order of December 29, 1967.

Subsequent to the appeal the defendant taxed his costs and received them from the plaintiff. On April 10, 1969, defendant received a letter from plaintiff's attorney setting forth the total costs, disbursements, and attorney's fees as $4,026.26. Over and above the $1,500 already deposited pursuant to the court's order, plaintiff's attorney sought an additional $1,263.13 contribution toward the costs of the appeal.

On May 5, 1969, plaintiff-wife obtained an order to show cause seeking among other things:

That defendant be required to deposit $5,370.83 with the clerk of court to comply with the contempt penalty requiring the deposit of $32,400 as his share of the real estate sale proceeds in lieu of the insurance policy which he had allowed to lapse;

That the plaintiff be allowed an increase in alimony and support pursuant to the original judgment of divorce;

That defendant be required to pay plaintiff the sum of $3,596.40 claimed as increased interest costs on the mortgage loan on the home which she purchased in April of 1969 as compared to the interest rate available to her in June of 1967;

That defendant be ordered to deposit in trust sufficient sums to guarantee performance of his financial obligations until they were terminated; and That defendant be required to contribute toward her attorney's fees and disbursements on the appeal and for proceedings subsequent to the appeal.

On July 11, 1969, defendant filed a petition tendering a substitute insurance policy in the amount of $100,000 which he had obtained, and seeking the return of the funds then held in the trust pursuant to the contempt provisions, and further petitioning for the return of a substantial part of the $1,500 which he had advanced toward defendant's appellate fees pursuant to the court order prior to the appeal.

Hearings on these motions were held on July 11 and September 26, 1969. The trial court filed a memorandum decision and entered an order amending the judgment on November 3, 1969. That order provided, in substance, among other things:

That because of a substantial change in the circumstances the $100,000 life insurance policy was no longer needed as a guarantee for the performance of defendant's obligations in the event of his death and that he could discontinue and cancel the policy;

That the $27,000 on deposit with the clerk of court was no longer needed for the support for which it was deposited, but that $20,000 of it should be retained in a trust pursuant to sec. 247.30, Stats., as security for the performance of defendant's obligations;

That plaintiff's motion for alimony was denied but that the question of permanent alimony was held open;

That the support for the two remaining minor children be increased to $250 for each of them;

That plaintiff's claim for increased interest costs on the mortgage loan was denied; and

That defendant's claim for a return of a part of the $1,500 deposited toward plaintiff's fees and disbursements on the appeal be denied.

The defendant-husband has now appealed from portions of the order of November 3, 1969, allowing him to cancel the life insurance policy and creating the $20,000 trust fund, increasing the support payments, and denying a return of part of the $1,500 deposited toward plaintiff's appellate fees. Plaintiff-wife has filed a notice to review the rulings of the trial court denying alimony and denying her claim for increased interest payments.

Ruppa & Wegner, Milwaukee, for appellant; Norman W. Wegner, Milwaukee, of counsel.

Ray T. McCann, Milwaukee, for respondent; Leonard L. Loeb, Milwaukee, of counsel.

BEILFUSS, Justice.

The appeal and the notice to review raise five issues which we deem to be as follows:

1. Did the trial court err in entering the order canceling the insurance policy and creating the trust pursuant to sec. 247.30, Stats.?

2. Did the trial court abuse its discretion in increasing the child support?

3. Did the trial court err in refusing to order a return of part of the $1,500 deposited toward plaintiff-respondent's appellate fees on the previous appeal?

4. Did the trial court err in refusing to allow alimony to plaintiff-respondent?

5. Did the trial court err in refusing to allow plaintiff-respondent's claim for increased interest costs?

The defendant-husband's first argument is that the trial court erred in failing to follow this court's mandate on the previous appeal. He argued on that appeal that the court had abused its discretion by ordering the contempt penalty since his children were not prejudiced by the lapse of the insurance policy. This court squarely framed that issue in terms of whether or not there had been an abuse of discretion. Foregger, supra, (1968).

The defendant's contention now is that this court's decision in 1968 has the effect of res judicata on the terms of the penalty order and that the trial court now must accept the substituted insurance policy. We believe the defendant expands the effect of that mandate. It did not hold, as a matter of law, that he was entitled to receive his money when he procured the policy but rather established only that the trust created as a penalty was not an abuse of discretion. The prior holding of this court should be limited to the narrow question which it decided, and that appellant shoudl not be allowed to invoke it as 'the law of the case' to deprive the trial court of the power to modify the provisions of the judgment granted in 1964 as to support and alimony upon an adequate showing of a...