Leighton v. Leighton
| Citation | 81 Wis.2d 620,261 N.W.2d 457 |
| Decision Date | 03 January 1978 |
| Docket Number | No. 75-545,75-545 |
| Parties | Shirley LEIGHTON, Appellant, v. Fred M. LEIGHTON, Respondent. |
| Court | United States State Supreme Court of Wisconsin |
Gerald T. Flynn, Racine, for appellant.
Matthew H. Quinn, Racine, for respondent.
FACTS.
The plaintiff-appellant, Shirley Leighton, sought and secured an uncontested judgment of absolute divorce on the ground of cruel and inhuman treatment from the defendant-respondent, Fred M. Leighton.
The plaintiff and defendant were each fifty years of age at the time of the divorce action. They had been married for thirty years. They had three children, all of whom were adults at the time of the divorce. Earlier divorce actions between them in 1970 and 1971 had been dismissed.
The appeal is solely to that portion of the divorce decree dealing with the trial court's division of the property of the parties and the denial of alimony to the plaintiff-wife. Facts relevant to financial aspects of the divorce judgment include the following:
Plaintiff-wife was employed for twenty-three years of the thirty-year marriage. She is by training a practical nurse. Approximately two years prior to the divorce she was found to have cancer and a left radical mastectomy was performed. (Plaintiff's brief on appeal states that since the divorce judgment a right radical mastectomy has been performed, and the defendant's brief does not dispute this statement.)
The defendant-husband is an instructor at Gateway Technical Institute in Racine. In the year prior to the divorce he earned $11,687. He receives a veterans' disability pension in the amount of approximately $263 per month. His testimony was that following the divorce he expected to receive only $150 per month and that the family allowance portion of the service-connected disability allowance would go to the youngest son of the parties who was still a student. The earnings of the parties were pooled for use by the family during the marriage.
At the time of the divorce proceedings the parties owned a home in Racine, a lot in Florida and a cottage in Florence county. They also owned household furniture, personal effects and certain life insurance policies.
On the day after service of the summons in this action upon the defendant the parties agreed to a stipulated division of their property and an award of permanent alimony equal to the amount of the service-connected disability pension per month, including the family allowance. Pursuant to this agreement and without the knowledge or the approval of the trial court, the parties proceeded to transfer record title to the various pieces of real property owned by them and to assume possession of items of personal property awarded to each by the agreement. The defendant-husband took out a loan on an annuity policy and transferred the amount borrowed to the plaintiff for the payment of bills. They agreed that the balance remaining after bills were paid would be split between them.
On June 29, 1974, the family court commissioner in Racine entered a temporary order granting the plaintiff $263 per month temporary alimony and enjoining her from expending the balance of the amount borrowed by defendant for the payment of bills.
On March 3, 1975, the trial was held. Six months later, on September 17, 1975, the trial court's decision was issued. On October 9, 1975, judgment was entered. The plaintiff appeals from a portion of the judgment which will be discussed infra.
This appeal of a portion of a judgment of divorce brings for review only the trial court's division of the assets of the parties and the denial of alimony to the plaintiff-wife.
THE "LACEY" APPROACH.
In his memorandum decision the trial judge stated that he sought to divide the property of the parties "as equally as I can," and under Lacey, 1 on this record, that endeavor was appropriate. Until Lacey the starting point and, often enough, the finishing point was ". . . one third of the marital estate to the wife . . . to be increased or decreased only by special circumstances." 2 In Lacey this court abandoned this "dower-type approach" and endorsed the concept that: "The division of the property of the divorced parties rests upon the concept of marriage as a shared enterprise or joint undertaking." 3 According to Lacey, in a long marriage, as we have here, particularly as to property acquired by the parties during the marriage, as we have here, ". . . a fifty-fifty division may well represent the mutuality of the enterprise." 4 Of this partnership approach, we said that it ". . . gives great leeway and also places a heavy responsibility on trial courts in divorce cases . . . ." 5 However, in Lacey this court made clear that: "If on review the equitableness of a division of property is to depend upon the material facts and factors present in the case, it follows that a firm foundation for such division must be laid by including in findings or decision the factors found relevant and considered by the judge." 6 On this appeal a principal issue is whether such firm foundation for trial court conclusions exists. So we will check the foundation laid as to each finding here challenged. It is true that in the Vier Case 7 our court held that violation of the Lacey guideline is not necessarily reversible error or even an abuse of trial court discretion 8 if this court can conclude from the record that the division of property or the award of alimony was reasonable. However Vier gives this court the option of reviewing the record de novo and is not to be read to require this court in every case to search a record to locate reasons that might have occurred to a trial judge for a result that he reached without giving any explanation of how or why he reached it.
REJECTION OF STIPULATION.
The wife argues on appeal that the trial court "should have given effect" to the stipulation of the parties as to the property division "which the parties had already carried out." 9 Reference is to the agreement of the parties reached after the commencement of the divorce proceedings dividing the marital estate. It is true that in this state parties to a divorce proceeding ". . . may enter into an agreement dividing the property, providing for alimony, and settling other matters involved." 10 However, by such stipulations in advance of trial the divorcing parties cannot ". . . subscribe, modify, or oust the court of its power to determine the disposition of property, alimony, support, custody or other matters involved in a divorce proceeding." 11 In fact, in this state a stipulation between the parties in a divorce action is no more than ". . . a recommendation jointly made by them to the court suggesting what the judgment, if granted, is to provide." 12 In this state it is not even required that the family court accept or reject the stipulation in toto for ". . . the trial court has the right to make such modifications in the suggested provisions that the interests of justice . . . may require." 13 That the parties here partially implemented their agreement by transferring title and possession did not erode or alter the authority of the trial court to approve, reject or modify their stipulation regarding the property division. All that was accomplished here was to make the determination of an equitable division of the estate more difficult because some steps taken by the parties without court approval were not easily retraced. Instead of dividing up the nest eggs, the judge was required to unscramble an omelet, never an easy undertaking.
Regardless of the difficulties created by a premature implementation of an agreement between the parties, our court has held that a trial court ". . . has the same serious duty to examine carefully such agreements or stipulations . . . as it has in making a determination without the aid of such an agreement." 14 There is in this record no evidence that the trial court made such an examination of the merits of the stipulated recommendations of the parties. Instead the trial court concluded that the joint recommendations of the parties were no longer joint at the time of trial. The trial court found ". . . that counsel for defendant and defendant by his testimony objected to the entry of the stipulation, and that the defendant testified that he did not desire to be bound by the terms of said stipulation . . . ." While it is not a point briefed or argued on this appeal, we would not find it an abuse of discretion for a court to reject a stipulation of the parties on the ground that one party to it no longer recommended it to be included in the court's judgment. Abuse of discretion is the test. 15 We find no abuse of discretion in the trial court's refusal to recognize as a stipulation of the parties an earlier agreement between them, since repudiated by one of them.
DENIAL OF ALIMONY.
The initial stipulation of the parties was that the defendant-husband would pay to plaintiff-wife $263 monthly alimony, the amount of his monthly veterans' disability benefits. Accordingly, at the request of the plaintiff, the family court commissioner set $263 per month as the amount of the temporary alimony to be paid by the defendant to the plaintiff. At the time of trial the wife requested alimony only for a limited period of time to enable her to find a suitable position as a trained nurse. She had recently undergone surgery for a radical left mastectomy, but testified that her doctor had given her a good prognosis as to the recurrence of the cancer. (In fact, the cancer did recur, and she had radical right mastectomy since the trial.) The trial court did not award alimony but stated no reason for the denial in its memorandum decision, findings of fact, or conclusions of law. Under the Lacey rule earlier discussed such failure to state any reason or basis for a denial of alimony would be grounds for reversal. Even if we exercised the option given to...
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