Hartung v. Hartung, 79-1635

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: HEFFERNAN
• Citation: 306 N.W.2d 16,102 Wis.2d 58
• Parties: Stephen W. HARTUNG, Plaintiff-Respondent, v. Eleanor Ann HARTUNG, Defendant-Appellant-Petitioner.
• Docket Number: No. 79-1635,79-1635
• Decision Date: 02 June 1981

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306 N.W.2d 16 102 Wis.2d 58 Stephen W. HARTUNG, Plaintiff-Respondent,
v.
Eleanor Ann HARTUNG, Defendant-Appellant-Petitioner. No. 79-1635. Supreme Court of Wisconsin. Argued April 27, 1981.
Decided June 2, 1981.

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[102 Wis.2d 59] Hugh R. Braun (argued), and Godfrey & Trump, Milwaukee, on brief, for appellant-petitioner.

Milton R. Bordow, Milwaukee, for respondent.

REVIEW of a decision of the Court of Appeals. Reversed, and remanded to circuit court.

HEFFERNAN, Justice.

This is a review of an unpublished decision of the court of appeals dated July 16, 1980, 98 Wis.2d 747, 297 N.W.2d 514, affirming a divorce judgment of the circuit court for Milwaukee county. Although the notice of appeal placed in issue all portions of the judgment except that which granted Eleanor Ann Hartung a divorce on the grounds of a voluntary separation of the parties for a period of one year, the only question pursued by the parties is the propriety of the award of maintenance and the period for which payments are to be made.

[102 Wis.2d 60] As in the court of appeals, the principal issue on this review is whether the trial court abused its discretion when it ordered Stephen Hartung to pay Eleanor Hartung maintenance in the amount of $200 a month

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and provided that those payments would cease after eighteen months. We conclude that, in so ordering, the trial court abused its discretion; and we, therefore, vacate that portion of the judgment and remand the cause to the trial court for further consideration and for the exercise of discretion pursuant to the standards of sec. 247.26(1), Stats.1977. ¹

[102 Wis.2d 61] The record shows that the parties were married in 1966, and at the time of the divorce hearing on May 15, 1979, the couple had three children, aged nine, seven, and three. The marital estate of approximately $90,000 was divided equally. Neither party objects to that division. The wife was awarded the home, with an equity of approximately $40,000, and received $1,100 in cash, a sum which was determined to be her portion of a federal income tax refund. Stephen was awarded title to a rental duplex in Milwaukee and a lake lot in Oneida county. He also was awarded $7,600 in cash. Items of personal property were also awarded to Stephen and Eleanor; and, as a result, the marital property was divided with approximate equality. Eleanor was given custody of the children.

Eleanor's expenses to maintain the household and to care for the children were found to be $1,064.12 per month. Two hundred seven dollars of this sum was needed to pay the mortgage, taxes, insurance, and related expenses on the homestead awarded to her. The reasonableness of her expenses was not disputed.

Prior to the marriage in 1966, Eleanor had two years of college education and worked for a short time as a clerk-typist. She earned $3,000 the year they were married. However, she has not been employed since, and the record shows that, if she were able to get a job, her present earning capacity would be limited. In addition, she wishes to remain at home to take care of the children while they are small.

Stephen is an electrician, who earned $36,000 in 1977 and $28,000 in 1978. In 1979, his final earning figure [102 Wis.2d 62] was not available, but it was estimated to be about $29,000, or a current net pay of $1,678 per month.

Support for the children was set at $450 per month and is not challenged on review. Maintenance payments were awarded to Eleanor in the amount of $200 per month for a period limited to eighteen months.

Under the judgment filed with the clerk of court on September 13, 1979, the maintenance award was to terminate on November 1, 1980. Although the judgment recited that the division of estate was in "consideration of a full and final division of marital

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estate of the parties and in lieu of maintenance," maintenance was in fact ordered.

Eleanor Hartung's attorney asserted in the court of appeals that the meager and limited maintenance award would require Eleanor Hartung to immediately go to work full time and would deprive very young children of a mother's care. He points out the inequitableness of the maintenance award when that sum, $200, plus the $450 for child support, amounts to only $650, while it is undisputed that the reasonable living expenses for Eleanor and the children at the time of the divorce were $1,064.12 per month. Other than the award of $1,100 the income tax refund, Eleanor has no cash assets whatsoever. It is undisputed that ordered support and maintenance payments do not cover the minimum expenses of maintaining the household and supporting the children. The trial judge was fully apprised of this shortfall in income for Eleanor and the children. However, his only recognition of the problem appears in his oral statement from the bench. He said:

"Now we have the question which, I think, really brought everybody here today more than anything, of what to do with alimony or maintenance, as it is now known. We have a recommendation from the guardian ad litem that maintenance of some kind be instituted [102 Wis.2d 63] for a limited period until, I think she said, August of 1981, the theory being that Mrs. Hartung with children the children would all be older then and she can start thinking about being employed, and I think she certainly should. I don't think she would want to sit around the rest of her life. My God, she will turn into a vegetable if she did that anyhow. So she ought to start thinking about some kind of a retraining program. But in order to facilitate that I am going to provide that there be limited maintenance for a period of 18 months at the sum of $200 a month commencing with this month, May of 1979, and running for eighteen months thereafter, and it will be terminated at the expiration of eighteen months. And this will all be in consideration of a full and final division of the marital estate of these parties which the court has attempted to make as close as possible with a 50-50 division ...."

The court of appeals recognized in its opinion that, under the maintenance and support order, Eleanor Hartung would have to immediately seek employment to meet her acknowledged monthly expenses. The court of appeals correctly observed that, as a matter of law:

"(A)n important consideration of maintenance is that custodial mothers should be free to give primary attention to their maternal responsibilities, and a corollary duty of divorced husbands is that they support the family in the manner to which the family is accustomed according to their ability to pay."

The court of appeals asserted, however, that there was no support in the law for the proposition that a...