Hirth v. Hirth, 187

• Decision Date: 03 November 1970
• Docket Number: No. 187,187
• Citation: 180 N.W.2d 601,48 Wis.2d 491
• Parties: Marie HIRTH, Respondent, v. Harold W. HIRTH, Appellant.
• Court: Wisconsin Supreme Court

Page 601

180 N.W.2d 601

48 Wis.2d 491

Marie HIRTH, Respondent, v. Harold W. HIRTH, Appellant.

No. 187.

Supreme Court of Wisconsin.

Nov. 3, 1970.

This is an appeal by the defendant-husband from an order of the county court requiring him to pay plaintiff-wife $420.00 per month as alimony and $950.00 as contribution to the wife's attorney fees. The judgment of legal separation, upon which this order is based, was entered February 21, 1967. This judgment left the matters of alimony and division of estate open, jurisdiction having been obtained by publication only. On July 8, 1966, defendant secured an ex parte decree of divorce in Washoe county, Nevada. The wife made no appearance in that action. On July 18, 1969, following a hearing, the county court ordered defendant to pay alimony and contribution to attorney's fee as above set forth. Defendant appeals.

Ruppa & Wegner, Milwaukee, for appellant.

McDonald, Purcell, Piper & Boettcher, Madison, for respondent.

ROBERT W. HANSEN, Justice.

Issues are here raised to two related orders of a trial court in an action for legal separation: (1) The order awarding alimony to the wife; and (2) the order requiring the husband to contribute to payment of the wife's attorney fees. Relatedness derives from the fact that both orders require an rest upon specific trial court findings of fact establishing: (1) The need of the wife; and (2) the ability to pay of the husband. Here the trial court made detailed findings as to facts established and factors considered in determining (1) need, and (2) ability to pay, and justifying the orders entered.

NEEDS OF THE WIFE.

Facts found relevant to the test of need of the wife, and, therefore, factors properly considered by the trial court, included:

ASSETS OF WIFE. The total financial resources or assets owned by the wife are material on the issue of her needs. Here the trial court found that the wife had a 'separate estate' of $11,408 in July of 1968, a modest enough 'nest egg' or reserve for emergencies.

INCOME OF WIFE. Important to any finding of need on the part of the wife is her separate income and earning capacity. Here the trial court found that the wife had no regular income except 'nominal stock dividends.'

AGE AND HEALTH. The age and physical and mental health of the wife has relevance to the possibility of her entering or reentering the employment market. Additionally, health can involve required and continuing medical, surgical or dental expenses. Here the wife is now sixty-six years of age. There is no indication of special health problems.

LENGTH OF MARRIAGE. Payments for wife maintenance are not reparations for years spent as spouse. However, the length of the marriage can affect employability, and does reflect the established standard and mode of living of the parties. Here the wife was a full-time housewife during the marriage. The parties were married in 1927.

'STATION IN LIFE'. The mode and standard of living of the parties during their marriage is one, but only one, of the factors that may be considered by the court. This is not to imply any entitlement of the wife to live, after divorce or separation, at same socio-economic level that marked the years of living together. Ordinarily this is not possible. Whether or not two can live as cheaply as one, two persons living under two roofs cannot live as well as the same two persons living under one roof. Court concern must be given to entitling both to live separately as reasonably well as is possible under the circumstances. Here the court referred only to the 'station in life' of the wife, but it is evidence that the court concern was with the standard of living of both parties, not the wife alone.

ABILITY TO PAY OF HUSBAND.

Facts found and factors considered in determining the ability to pay of the husband included:

ASSETS OF HUSBAND. The financial resources and assets of the husband have an obvious relatedness to his ability to make payments of alimony. Here the trial court found that the husband owned property as follows: (1) 94% of the stock of Harold Hirth, Inc., the corporation's net worth being $49,500; (2) real estate in Prospect Heights, Illinois, valued at $43,000, subject to a mortgage of $3,400, the wife claiming a joint interest therein; (3) real estate in Cornucopia, Wisconsin, valued at $47,300, the wife claiming a joint interest therein; (4) life insurance of undetermined cash surrender value; (5) $8,000 loans receivable.

INCOME OF HUSBAND. Income of every kind from any source is a basic factor in establishing ability to pay. Here the trial court found that the husband's 1968 income was $13,455.16, including net rents from the Prospect Heights property. This finding is sharply disputed, but it appears that the husband considers not a part of his annual income his right to use without cost to him (under an arrangement with his...