Lavota v. Lavota
| Decision Date | 19 December 1975 |
| Docket Number | No. 14,14 |
| Citation | 70 Wis.2d 971,236 N.W.2d 224 |
| Parties | Mary LAVOTA, Respondent, v. Florian LAVOTA, Appellant. (1974). |
| Court | Wisconsin Supreme Court |
Stephen J. Hajduch and John A. Udovc, Milwaukee, for appellant.
Johnson & Johnson, Waukesha, by Eugene N. Johnson, Waukesha, of counsel, for respondent.
This is an appeal by the defendant husband, Florian Lavota, from a judgment granting an absolute divorce to the plaintiff wife, Mary Lavota. We reverse and remand to the trial court.
The plaintiff wife sued for an absolute divorce on the grounds of cruel and inhuman treatment. The husband counterclaimed for an absolute divorce on the same grounds. The parties were married on July 28, 1951; and at the time of the divorce the plaintiff was forty-three years old and the defendant forty-seven years old. Four children were living at home at the time of the divorce. Their respective ages were eighteen, seventeen, fourteen, and eleven.
A judgment of absolute divorce was granted to Mary Lavota, and she was given custody of the children. The husband was ordered to provide support for the minor children; and approximately 45 percent of the joint estate of the parties, as well as all items of personal property belonging to Mary Lavota, was awarded to her. No alimony was ordered to Mary Lavota, the trial judge ordering that the question of alimony be held open.
From a perusal of the record, we find that the trial court failed to make numerous findings of fact which were essential for the support of the judgment entered. In respect to the factual foundation on which the trial judge concluded that the wife was entitled to an absolute divorce, the court made only the ultimate fact finding that 'the defendant has treated the plaintiff in a cruel and inhuman manner.' There was no finding that the cruel and inhuman treatment affected either the physical or mental health of the plaintiff.
Although the defendant in his counterclaim alleged a course of cruel and inhuman treatment by the plaintiff toward him and that this treatment adversely affected his health and well-being, the trial court made no finding in respect to the merits of the counterclaim, and no disposition of the counterclaim was made in the judgment.
Although the trial court awarded the custody of the minor children to Mary Lavota, no findings whatsoever were made in respect to the fitness of either parent to have custody, nor is there any evidence from the record that the court made any finding in respect to the best interests of the minor children.
The court held that the plaintiff was entitled to approximately 45 percent of the joint estate and the items of the estate were particularized, but it made no reference to the factors that impelled such division of the joint property.
Moreover, the trial court, although finding that the defendant had been guilty of cruel and inhuman treatment of his wife, made no findings in respect to the particulars of that conduct.
We have repeatedly held that, in an appeal from a divorce judgment which determines the marital status of the parties, provides for the division of the estate, or awards custody of the minor children, the trial court is required to make adequate findings of fact. In the absence of such findings, this court may affirm if the judgment is supported by a preponderance of the evidence, it may reverse if not so supported, or it may remand for the purpose of making appropriate findings of fact and conclusions of law. Kraemer v. Kraemer (1975), 67 Wis.2d 319, 320, 227 N.W.2d 61.
Initially, it is apparent that, under the holding of Cary v. Cary (1970), 47 Wis.2d 689, 177 N.W.2d 924, the case must be remanded for finding and disposition in respect to the merits of the defendant husband's counterclaim. As was said in the dissent to Walber v. Walber (1968), 40 Wis.2d 313, 325, 161 N.W.2d 898, 904, a dissent which has, in part, been adopted by this court:
In addition, because both the complaint and counterclaim allege cruel and inhuman treatment, the cause must be remanded under the holdings of Cary, supra, and McMurtrie v. McMurtrie (1971), 52 Wis.2d 577, 191 N.W.2d 43, for findings in respect to the facts which support, or fail to support, the divorce on the grounds of cruel and inhuman treatment.
Under Jacobs v. Jacobs (1969), 42 Wis.2d 507, 513, 167 N.W.2d 238, the...
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