Littig v. Littig

• Decision Date: 06 December 1938
• Citation: 282 N.W. 547,229 Wis. 430
• Parties: LITTIG v. LITTIG.
• Court: Wisconsin Supreme Court

229 Wis. 430

282 N.W. 547

LITTIG

v.LITTIG.

Supreme Court of Wisconsin.

Dec. 6, 1938.

Appeal from an Order of the Superior Court of Dane County; Roy H. Proctor, Judge.

Divorce action by Elsie Littig against Lawrence Littig. From an order modifying so much of a judgment of divorce as provided for payment of alimony to the plaintiff for support of herself and her child, the plaintiff appeals.-[By Editorial Staff.]

Reversed and remanded, with directions.

The order appealed from is dated June 30, 1938, and modified so much of a judgment of divorce, entered by the same court on June 8, 1934, as provided: “That the defendant Lawrence Littig pay to the plaintiff Elsie Littig the sum of $100 per month as a suitable allowance for her support and the support of her child until August 15, 1934; that thereafter the said defendant pay the sum of $150 a month to the plaintiff for her support and the support of her child; ***.”

The order modifying the judgment provided:

“It is the judgment of this court that there be a division of property between the parties hereto;

“That the plaintiff shall have the sole title to all the household furniture, personal effects, and the automobile which are now in her possession, free and clear from any lien or claim on the part of the defendant; and in addition thereto the defendant shall pay to the plaintiff the sum of $1200.00 in installments at the rate of $100.00 per month beginning on or about the 7th day of July, 1938 for a period of twelve months, or, in lieu, of such installment payments the defendant may, at his option, pay to the plaintiff the sum of $1000.00 cash on or before July 15, 1938, and that said sum when fully paid shall fully relieve and discharge the defendant from further payment, and the defendant shall retain title to any and all real-estate now in his possession, and household furniture and all other personal property of whatever kind and nature, including his automobile, free and clear from any lien or claim on the part of the plaintiff, and that the same shall constitute a full and final division of property in lieu of all alimony, temporary or permanent.”

From that order the plaintiff appealed.

Wm. R. Curkeet and Spencer A. Lucas, both of Madison, for appellant.

Tenney & Davis, of Madison, for respondent.

NELSON, Justice.

The facts appearing from the judgment roll and affidavits submitted on the hearing are not in dispute. The plaintiff and defendant intermarried on July 22, 1922. As a result of said marriage a son was born to the parties on June 30, 1927. On February 9, 1934, the plaintiff commenced an action of divorce against the defendant, asserting as grounds therefor the cruel and inhuman treatment of the plaintiff by the defendant. On June 6, 1934, the parties entered into a written stipulation which among other things provided: “That during the time that plaintiff occupies the home defendant will pay her the sum of $100.00 per month as alimony and support for the child; that thereafter he shall pay the sum of $150.00 per month for alimony and support money.”

A judgment of divorce was thereafter entered, which provided “that the defendant Lawrence Littig pay to the plaintiff, Elsie Littig, the sum of $100 per month as a suitable allowance for her support and the support of her child until August 15, 1934 (when she was to vacate the home); that thereafter said defendant pay the sum of $150 per month to the plaintiff for her support and the support of her child.” The allowances for the support of the plaintiff and the minor child, whose custody was awarded to her, were paid by the defendant up to the time that the order appealed from was entered. On October 28, 1937, upon defendant's motion, an order was issued out of said court requiring the plaintiff to show cause why the judgment entered June 8, 1934, should not be modified in respect to the matter of alimony, the custody of the minor child and other matters in relation thereto, as to the court might seem just and equitable. After due hearing, the court denied the defendant's motion to modify the judgment. The court, in its decision, said:

“The next question then is whether or not the request of the defendant to be relieved of what he alleges to be an unjust burden with reference to the support of Mrs. Littig, in view of his present situation, should be granted.

“An examination of the affidavit marked Exhibit 1, indicates that the defendant's financial condition, as far as actual assets and liabilities are concerned, is not a great deal different from what it was at the time of the divorce. Of course, it is true that his income has increased over what it was at the time of the divorce action, but it is also true that his expenses have increased with the rise in prices, cost of living and so forth. It is a matter of serious consideration to determine just how long one should be required to support his ex-wife after a divorce. There is no hard and fast rule that I know of, and none has ever been cited to this court, and I think if there was, one would have been cited during the numerous cases that this court has had to decide involving such question. There is no slide rule to guide the court. It is indeed difficult to determine just how long the support should continue. The parties here have been divorced three years and over. From the set-up as now put forth by the defendant, it would appear that while he is growing older every year his net worth does not seem to increase very much. Whether he should be required to maintain his status quo year after year,-I mean by that that he should use up all of his income so that he would be dependent entirely upon the social security program of the government in years to come, of course, is a question. I, personally, do not believe that a man should be required to contribute to the support of his wife where the circumstances are as they are here indefinitely.

“With all this in mind the court, at this time, is not going to make any change in the order heretofore entered with referenceto the payment of support and alimony, but the court will entertain a motion about six months from now by either party for a division of property. By that time the parties will have been divorced and separated for about four years. If the parties, through their counsel, can meet on some common ground and arrange for a division and submit the same to the court and the court feels it is satisfactory, the court will approve it; but, in the event that they cannot get together, then as I said before the court will entertain an application from either party for a request of a division of property in May or June, 1938.”

An order was entered which dismissed the defendant's motion but which ordered that either party might, after June 8, 1938, apply to the court for an order modifying the judgment. On June 1, 1938, an order was issued requiring the plaintiff to show cause on June 17, 1938, why the judgment entered on June 8, 1934, should not be modified as to the matter of alimony, and a final division of property made in lieu thereof. Due hearings were thereafter had in pursuance of said order. From the affidavits submitted it appeared that the defendant had married again; that his financial condition was substantially the same as when the divorce was entered; that his net worth was less than $1,000; that his salary at the time of the entry of judgment was $4,800 per year and that his salary and earnings at the time the order to show cause was heard amounted to $6,000 per year. An order modifying the judgment as hereinbefore recited was entered June 30, 1938. The order contains the following recitation: “A review of the evidence...