Polleck v. Polleck

• Decision Date: 03 November 1959
• Citation: 8 Wis.2d 295,99 N.W.2d 98
• Parties: Esther M. POLLECK, Respondent, v. Michael M. POLLECK, Appellant.
• Court: Wisconsin Supreme Court

Page 98

99 N.W.2d 98

8 Wis.2d 295

Esther M. POLLECK, Respondent, v. Michael M. POLLECK, Appellant.

Supreme Court of Wisconsin.

Nov. 3, 1959.

Beck & Buckley by John P. Buckley, Waukesha, for appellant.

James D'Amato, Waukesha, for respondent.

DIETERICH, Justice.

The parties were married November 9, 1946. Prior to the plaintiff's marriage to the defendant she operated a rooming house at 612 Maple Street, Waukesha, Wisconsin. At the time of her marriage to the defendant her separate estate was $15,000. The husband had no estate.

The distribution of property in divorce proceedings is regulated by statute in this state, and the right of distribution in this case must be found in the statutes. Sec. 247.26, Stats., which is applicable here, provides in part:

'* * * and the court may finally divide and distribute the estate, both real and personal, of the husband and so much of the estate of the wife as shall have been derived from the husband, * * *.'

In Hartman v. Hartman, 1948, 253 Wis. 389, 34 N.W.2d 137, 139, this court said:

'The property may be the property of the wife and yet be derived from the husband so as to bring it within the operation of the statute. The estate which may be derived from the husband clearly includes property the title to which is in the wife. Martin v. Martin, 1918, 167 Wis. 255, 167 N.W. 304.'

It was stated in Gauger v. Gauger, 1914, 157 Wis. 630, 632, 147 N.W. 1075, 1076:

'The division of property, in a case of this sort, is peculiarly a matter resting in the discretion of the trial court, subject to such rules as have been established by this court for guidance in respect to the matter. Therefore, the trial determination must prevail unless clearly characterized by mistake or some manifest error respecting the detail facts upon which it rests, or disregard of established guides, amounting to a pretty clear want of judicial discretion or judgment. Newton v. Newton, 145 Wis. 261, 130 N.W. 105.'

The income tax returns disclose that the wages and tips of the wife during the years 1948 to 1957 were $23,782.77, and the husband's wages during the period from 1948 to 1954 were $18,694.77. During the years 1955, 1956, and 1957 his tax returns disclose a business loss in the operation of Mike's Cocktail Lounge of $7,417.06. The evidence further discloses that the wife received $5,000 from the estate of her son by a previous marriage.

At the time of the divorce the plaintiff's estate consisted of an apartment building that cost $30,000, subject to an existing mortgage in the sum of $6,377.89, a tavern business which in 1954 cost $19,000, a car on which $1,000 was paid, and $5,869.05 in savings accounts, her net estate being $49,531.16.

The defendant husband testified that he did various work around...