Klipstein v. Klipstein

• Decision Date: 02 June 1970
• Docket Number: No. 246,246
• Parties: Carol KLIPSTEIN, Respondent, v. Donald KLIPSTEIN, Appellant.
• Court: Wisconsin Supreme Court

Page 57

177 N.W.2d 57

47 Wis.2d 314

Carol KLIPSTEIN, Respondent, v. Donald KLIPSTEIN, Appellant.

No. 246.

Supreme Court of Wisconsin.

June 2, 1970.

On October 8, 1965, Carol Klipstein was granted a judgment of absolute divorce from her husband Donald by the Walworth county court. Such judgment approved a stipulation between the parties in which Carol was granted a property settlement ¹ in lieu of alimony and custody of her then two year old son Corey. In addition, the judgment required that Donald pay $15 per week for support of the child.

In December of 1966, Carol Klipstein petitioned the county court for permission to remove her child to Denver, Colorado, where she desired to live with her parents. The petition indicated inter alia that her son was suffering from a lung condition and that her parents would, except for the support payments then being received, accept responsibility for the child's maintenance and support. By order, dated December 16, 1966, The Hon. Erwin C. Zastrow removed from the original judgment the restriction against removing the child from the state and granted the petition.

On December 27, 1966, this order was amended so as to grant the child's father reasonable visitation rights and to allow him to have two weeks every summer in which to bring the child back to Wisconsin.

The following year Donald Klipstein petitioned the Walworth county court to transfer custody of the child to him, or, in the alternative, to set specific times at which visitation was permissible. This petition alleged that the child was not receiving proper care, that the child's mother was not a fit and proper person to have custody of the child and that the child's mother had caused him continuous difficulty in regard to visiting, corresponding and communicating with the child.

Shortly thereafter Carol Klipstein responded to this petition and then requested that support payments for the child be increased from $15 to $25 per week. In addition, she requested $250 toward attorney's fees necessitated by the hearing on these matters.

On January 27, 1969, the hearing was held before The Hon. Erwin C. Zastrow. Following this hearing, an order, dated March 6, 1969, was entered wherein Donald Klipstein's visitation rights were expanded and specifically defined. In addition, the order increased the required support payments from $15 to $25 per week and awarded Carol $250 for attorney's fees connected with the proceedings. Later Donald moved the county court to review its order in respect to the increase in support payments but the motion was denied by order dated July 17, 1969.

Donald Klipstein then filed a notice of appeal from the orders dated March 6, 1969, and July 17, 1969. Upon motion of Carol the court ordered Donald (hereinafter the appellant) to pay $500 as contribution toward attorney's fees which she would incur on this appeal. By stipulation of the parties, it was agreed that the order awarding such fees be submitted for the review of this court.

Eugene A. Kershek, Milwaukee, for appellant.

Kenney, Korf & Pfeil, East Troy, for respondent.

HANLEY, Justice.

Two issues are presented on this appeal:

(1) Was there sufficient change in the circumstances to warrant an increase in the amount of support payments to be made by the appellant; and

(2) Did the trial court abuse its discretion in requiring the appellant to pay $500 for respondent's attorney's fees on this appeal?

Support Payments.

This court has established two tests for reviewing a trial court's modification of a divorce judgment. Chandler v. Chandler (1964), 25 Wis.2d 587, 131 N.W.2d 336. As stated in Foregger v. Foregger (1968), 40 Wis.2d 632, 643, 162 N.W.2d 553, 558, 164 N.W.2d 226:

'* * * 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.'

As to whether the instant case involves sufficient change of circumstances to warrant increased support payments, the trial court was here faced with a factual determination.

Although the appellant concedes that what constitutes a change in circumstances sufficient to justify increased support payments varies from case to case, it is his contention that the instant case involves no such circumstances.

In support of this contention appellant draws this court's attention to the fact that the respondent is now earning approximately $320 per month while originally she was unemployed and receiving aid from the county. He also notes that the respondent has sold the residence granted her by the divorce and that in addition she now owns her own automobile. As to his own position, appellant asserts that his income is substantially the same as that received at the time the divorce was granted and that his expenses have increased due to the necessity of traveling to Colorado to see his son. In short, it is the appellant's position that while the respondent's position in life has been enhanced since the granting of the divorce, his has remained substantially unaltered.

Among the factors urged upon this court for consideration by the respondent is the fact that it is simply more expensive to feed, clothe and maintain the child now that he is six, rather than two years of age.

In Kritzik v. Kritzik (1963), 21 Wis.2d 442, 124 N.W.2d 581, a mother, who had been awarded custody of the children, sought funds with which to send them to summer...