Perrenoud v. Perrenoud
| Decision Date | 03 January 1978 |
| Docket Number | No. 75-721,75-721 |
| Citation | 260 N.W.2d 658,82 Wis.2d 36 |
| Parties | Stephen A. PERRENOUD, Respondent, v. Doris J. PERRENOUD, Appellant. |
| Court | Wisconsin Supreme Court |
Russell R. Falkenberg, Thomas J. Sazama and Falkenberg & Sazama, Cadott, on briefs, for appellant.
Darrell O. Hibbard and Hibbard, Proctor & Schrage, Eau Claire, on briefs, for respondent.
Two issues are presented in this appeal:
1. Did the trial court abuse its discretion by granting an absolute divorce to the husband rather than to the wife?
2. Did the trial court abuse its discretion in its division of the marital estate between the parties?
Doris and Stephen were married in Chippewa Falls, Wisconsin, on April 14, 1955. At the time of the marriage, Stephen was employed in his father's construction business, and Doris worked at a local shoe factory. She resigned shortly after the marriage. The parties' first son was born in 1957, and a second son was born in 1960. Both sons were minors at the commencement of this divorce action in February, 1975; one son is still a minor.
The early years of the marriage were, in Doris' words, "fairly normal." However, after the birth of the younger son and for the next fifteen years the marriage deteriorated. During this time Stephen became more and more involved in his father's business. He purchased the business in 1965, incorporated it in 1967, and is today president and sole shareholder in the corporation, Perrenoud, Inc. The business grew in volume, the number of employees rose from 10 in 1965 to between 50 and 70 in 1975. The corporation's taxable income in 1974 was $155,797.34, with after tax earnings of about $94,700. Stephen personally grossed $55,000 in 1974 and $50,000 in both 1972 and 1973. Stephen testified at trial that he often worked up to fifteen hours a day; that his hours were irregular; and that he frequently missed dinner and would arrive home late in the evening.
During the marriage, Doris assumed the duties of housewife and mother. She is in her mid-forties and has arthritis. She has not been employed outside the home since leaving the job market over twenty years ago. She has devoted her life to maintaining her family and has raised their two sons.
In 1975, Stephen initiated this action for divorce on the grounds of cruel and inhuman treatment. This action stems from an incident in which Doris allegedly pointed a gun at Stephen and threatened his life. In addition, Stephen asserted that Doris regularly abused him verbally, has struck him on numerous occasions, often absented herself from home, failed to keep the house neatly and failed to prepare regular meals. At trial, he testified that his health has been adversely affected as a result of the marital strife.
Doris counterclaimed for divorce, also on grounds of cruel and inhuman treatment. She charged Stephen with being away from home, drunkenness, infidelity, and failure to perform his marital duties. At the trial, Stephen admitted that in their twenty years of marriage, the couple took only one vacation lasting one night.
The trial court granted an absolute divorce to Stephen and made specific findings that Doris' actions constituted cruel and inhuman treatment and that her treatment resulted in an impairment of Stephen's health. As to her cause of action, however, the trial court stated only that "the allegations of (Doris) of cruel and inhuman treatment by (Stephen) are insufficient to support the cause of action." 1
Under sec. 247.07, Stats., cruel and inhuman treatment is one of several grounds for divorce in Wisconsin. Although we have not attempted to define cruel and inhuman treatment, we have described it as "treatment which does or is well calculated to impair the health of a party, makes the marriage state intolerable and renders a party incapable of performing his or her duties in married life . . . ." 2 The party asserting the cause of action must prove three elements: (a) unreasonable and unwarranted conduct by the offending spouse; (b) inability of the parties to perform their marital duties; and (c) a detrimental effect on the physical or mental health of the offended spouse. 3 In arriving at its decision, the trial court must look to the totality of circumstances surrounding the case. 4
The weight of the evidence and the credibility of the witnesses are matters within the province of the trial court as the trier of facts. It is settled law in this state that the findings of fact of a trial court on appeal from a divorce judgment must be affirmed unless contrary to the great weight and clear preponderance of the evidence. 5
This court has consistently held that the trial court must make specific findings of fact, both as to the facts constituting cruel and inhuman treatment and the effect upon the health of the complaining spouse. 6 The trial court must consider all facts raised by the parties, and a "mere holding that there has not been established the cruel and inhuman treatment alleged falls short of meeting the statutory requirements of adequate findings of fact." 7
This court, when confronted with inadequate findings of fact, may affirm the judgment of the trial court if supported by the great weight and clear preponderance of the evidence; it may reverse the judgment if not so supported; or it may remand the cause for the purpose of making appropriate findings of fact and conclusions of law. 8
In the case at bar, each party has made numerous allegations. The trial court, in its findings of fact, made a specific finding supporting Stephen's cause of action, but not Doris'. According to the record, each party appears to have provided sufficient evidence to support a claim of cruel and inhuman treatment. Thus the decisive factor for the trial court must have been the credibility of the various witnesses, which is a matter peculiarly within the province of the trier of fact. Under these circumstances, remanding this case to the trial court for more specific findings and a fuller explanation would be a futile exercise.
Since the record supports the judgment granting the divorce to Stephen, that portion of the judgment is affirmed.
The parties were unable to stipulate as to the property division, and the trial court valued the assets and then divided them between the parties. No alimony was awarded to Doris. The custody of the younger son was left in both parents. The trial court did not value the property as divided, and on appeal the parties disagree as to the value of the property each acquired. The trial court's division of the property, and each party's evaluation thereof is as follows:
To Mrs. Perrenoud: Value according Value according
-------------------------------------- to Doris to Stephen
------------------- ---------------
1. All her personal effects, etc. no value no value
2. The dwelling house and one acre
of land with 1975 taxes paid $28,500.00 9 $37,000.00
3. 1974 Chevrolet automobile 4,000.00 4,025.00
4. New Holland garden tractor not valued by 1,200.00
trial court
5. Household furnishings 6,000.00 6,000.00
6. Antique collection 3,500.00 3,500.00
7. Cash payable on or before
January 1, 1976 20,000.00 20,000.00
8. Account at The American
National Bank & Trust Co. of
Eau Claire--checking account 6,087.59 10
9. Attorney fees for Doris not included 3,500.00
10. Installment payments of $750
per month for 144 months,
guaranteed by life insurance
policies on Stephen's life 108,000.00 108,000.00
------------------- ---------------
Total $170,000.00 $189,312.59
To Mr. Perrenoud: Value according Value according
----------------------------------- to Doris to Stephen
--------------- ---------------
1. 7 acres of real estate $11,500.00 $7,000.00
2. 500 units Nuveen Tax
Exempt Bonds 44,225.00 44,225.00
3. Cash 102,910.63 96,633.91
4. Loans payable to Stephen 64,685.70 62,800.00
5. Cash value of life insurance 10,245.00 10,209.00
6. 700 shares of stock in
Perrenoud, Inc., with
adjusted book value of 480,316.54 480,316.54
7. Personal effects, etc. no value no value
--------------- ---------------
Total $713,891.87 $701,184.45
Less attorney fees to
Mrs. Perrenoud 3,500.00 3,500.00
--------------- ---------------
Total $710,391.87 $697,684.45
Doris claims that in distributing the marital estate, the trial court abused its discretion, in that (a) the award to her is inadequate, (b) the trial court failed to consider all relevant factors, and (c) the trial court failed to make adequate findings of fact on which to base the award. Stephen's position is that the award is fair. It enables Doris to maintain herself in like or better circumstances than she had experienced during the marriage, and it gives him "the business which he had developed and managed without help or assistance" from Doris.
This court has long held that a division of property in divorce is within the sound discretion of the trial court and that the division will not be disturbed unless an abuse...
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