Husting v. Husting

• Decision Date: 02 March 1972
• Docket Number: No. 261,261
• Citation: 194 N.W.2d 801,54 Wis.2d 87
• Parties: Clare M. HUSTING, Appellant, v. Gerald J. HUSTING, Respondent.
• Court: Wisconsin Supreme Court

Page 801

194 N.W.2d 801

54 Wis.2d 87

Clare M. HUSTING, Appellant, v. Gerald J. HUSTING, Respondent.

No. 261.

Supreme Court of Wisconsin.

March 2, 1972.

September 3, 1969, plaintiff-appellant, Clare M. Husting, commenced an action against her husband, Gerald J. Husting, defendant-respondent, for a legal separation, reciting conscientious objection to divorce, and alleging cruel and inhuman treatment and adultery.

Trial was held August 12, 1970. The plaintiff was granted a decree of absolute divorce, a division of property and alimony. The counterclaim of the defendant for absolute divorce was dismissed.

September 28, 1970, plaintiff petitioned the court for review of its August 28, 1970 decision. This petition was denied October 5, 1970, and judgment was entered.

November 2, 1970, plaintiff again petitioned the trial court to review the judgment. After a hearing, this petition for review was also denied by order dated December 11, 1970.

January 11, 1971, plaintiff made application to the trial court for allowance of attorney's fees and costs for an appeal to this court. An order was entered on January 25, 1971, denying the application.

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

Meldman & Kahn, Milwaukee, for respondent; Patrick T. McMahon, Milwaukee, of counsel.

CONNOR T. HANSEN, Justice.

Appeals from the judgment, the order of December 11, 1970, denying the petition for review, and the order of January 25, 1971, denying plaintiff's application for attorney's fees and costs for appeal to this court, are properly before us for review. ¹

The parties were married October 12, 1940. One son was born to them who has reached his majority and has married. At the time this action was commenced, the plaintiff was fifty-one years of age, a housewife, and had not been employed since shortly after the parties were married. The defendant was fifty-two years of age and was employed as a sales manager of a manufacturing firm. He has been employed by the same firm for approximately thirty-five years. Prior to the commencement of this action, the defendant had engaged in an association with another woman. The record supports the finding of the trial court that the allegation of adultery had been proved by clear, satisfactory and convincing evidence.

Additional facts will be set forth in considering the five issues presented on this appeal:

(1) Was there an abuse of discretion in the judgment of property division?

(2) Was there an abuse of discretion in the amount of alimony awarded?

(3) Did the trial court abuse its discretion in failing to cite the defendant for contempt for allegedly violating the temporary order of the family court commissioner?

(4) Did the trial court abuse its discretion in granting an absolute divorce?

(5) Was there an abuse of discretion in denying plaintiff an allowance of attorney's fees to appeal to this court?

DIVISION OF PROPERTY AND AWARD OF ALIMONY.

The judgment of divorce awarded approximately one-third of the estate of the parties to the plaintiff as a property settlement and directed the defendant to pay the plaintiff $600 a month as alimony, and $208 annually so plaintiff could maintain existing life insurance policies on the life of the defendant which were awarded to her.

This court has stated many times that the division of property and the award of alimony in a divorce action is within the sound discretion of the trial court and unless an abuse thereof can be shown, the provisions of the judgment relating thereto will not be upset. Lacey v. Lacey (1970), 45 Wis.2d 378, 173 N.W.2d 142; Leeder v. Leeder (1970), 46 Wis.2d 464, 175 N.W.2d 262; Seiler v. Seiler (1970), 48 Wis.2d 400, 180 N.W.2d 627; Hirth v. Hirth (1970), 48 Wis.2d 491, 180 N.W.2d 20, Balaam v. Balaam (1971), 52 Wis.2d 20, 187 N.W.2d 867. In Lacey v. Lacey, supra, 45 Wis.2d pp. 383, 384, 173 N.W.2d p. 145, this court enumerated some of the factors to be considered in a property division:

'. . . Whatever is material and relevant in establishing a fair and equitable basis for division of the property of the parties may be considered. Such relevant factors certainly include the length of the marriage, the age and health of the parties, their ability to support themselves, liability for debts or support of children, general circumstances, including grievous misconduct, although a division is not a penalty imposed for fault. Whether the property award is in lieu of or in addition to alimony payments is a material factor. Whether the property was acquired during the marriage or brought to the marriage makes a difference. . . .'

An examination of the record supports the conclusion that the trial court considered all these factors together with the tax consequences to both parties in its findings of fact and on post-trial hearings for review.

At the first post-trial proceedings, the trial court explained that the property division and award of alimony were made in an effort to provide for the plaintiff in the manner in which she had been accustomed for the past twenty-nine years. The property awarded to the plaintiff consisted principally of the house and household goods owned by the parties, one of the automobiles, and a $3,000 cash award intended to relieve plaintiff of her present obligations so she would be able to start with a fresh slate. The property awarded to the defendant consisted primarily of stocks and bonds, and an automobile. At this post-trial hearing, and at the request of plaintiff's counsel, the court further awarded the plaintiff two life insurance policies on the life of defendant valued at $3,884.17, and directed the payment of additional alimony in the amount of $208 annually to maintain these policies, and that the defendant pay the interest on a policy loan he had made against these policies.

As was stated in Lacey v. Lacey, supra, whether the property award is in lieu of or in addition to alimony payments is a material factor. The defendant's gross salary was approximately $32,000 annually, plus a yearly bonus, dependent on the profits of the company, which was generally 10 to 16 percent of his salary. Defendant's bimonthly salary, after taxes, was approximately $890. The award of alimony was $600 per month.

Plaintiff contends the alimony award is inadequate in relation to her living expenses. The record reflects the parties had kept a detailed account and budget of all their expenses since the inception of the marriage. These figures were considered by the trial judge. At the trial, the plaintiff submitted a proposed monthly budget for herself in the amount of $789. With respect to some of the items in the budget she testified she had never previously spent $45 per month for beauty shops and that her average monthly expenditure for clothing had not been $100. She further testified about some anticipated medical needs.

In Hirth v. Hirth, supra, 48 Wis.2d p. 494, 180 N.W.2d p. 603 this court stated:

"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 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. . . .'

We find the trial court fully considered the evidence offered by the plaintiff, both at trial and in post-trial reviews. In this case the marriage was of long duration; there were no minor children; the plaintiff had no separate estate; and the dissolution of the marriage was attributable to the conduct of the defendant. The trial court awarded the plaintiff at least one-third of the estate; the portion awarded to the defendant was invested primarily in stocks and bonds. The plaintiff also received a substantial award of alimony. At the time of trial, and on review, the trial court gave thorough consideration to all relevant factors in determining the division of the property and awarding alimony. Under the facts, as revealed in the record of this case, it cannot be said that the trial court abused its discretion.

FAILURE TO CITE DEFENDANT FOR CONTEMPT.

A temporary order of the family court commissioner is on a printed form. Iten 6 of the printed form contains a general restraining order directed toward disposing of assets. Page two of the temporary order contains some typewritten provisions directly relating to specific matters in this case. Among these specific provisions is an order that the defendant '. . . make no further loans or pledges on Maccabee life insurance policy . . . Defendant to liquidate $6,000 in stocks & bonds and use proceeds as follows: (to pay certain enumerated debts) . . .' In fact, the defendant sold some securities and borrowed on the cash value of two Prudential life insurance policies to make available the funds to pay the enumerated debts.

It is the contention of the plaintiff-wife that the trial court erred in failing to find the defendant in contempt for violating the temporary order by borrowing on the cash value of the two Prudential policies. She asks that this court send the record back to the trial court with directions that the defendant specifically mentioned therein, and that in liquidating the cash values on the two policies. This we decline to do.

At the time of trial the defendant testified that he interpreted the restraining order to relate only to the Maccabee policy specifically mentioned terein, and that in addition thereto he was confronted with a failling stock market. More significantly, we observe that plaintiff asks only that we remand with directions to punish defendan...