Radandt v. Radandt

• Citation: 30 Wis.2d 108,140 N.W.2d 293
• Parties: Lydamae RADANDT, Respondent, v. Edward J. RADANDT, Jr., Appellant.
• Decision Date: 01 March 1966
• Court: United States State Supreme Court of Wisconsin

Page 293

140 N.W.2d 293

30 Wis.2d 108

Lydamae RADANDT, Respondent, v. Edward J. RADANDT, Jr., Appellant.

Supreme Court of Wisconsin.

March 1, 1966.

Joseph A. Van Susteren, Appleton, for appellant.

Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, Richard J. Weber, Wausau, of counsel, for respondent.

CURRIE, Chief Justice.

The defendant contends on appeal that both the permanent alimony and the provision made for plaintiff wife by way of property division are excessive and constitute an abuse of discretion.

Permanent Alimony.

At time of trial plaintiff was fifty-six years of age and defendant was fifty-two. Plaintiff has never been employed for wages or salary and is in reasonably good health. She has no separate estate of her own. Defendant's business is that of conducting furniture close-out sales and sales promotions in Wisconsin and neighboring states and his annual net income is $8,000 to $9,000 per year. He has a heart condition which causes chest pains when he overly exerts himself, and at all times carries nitroglycerin pills to relieve these pains. Defendant also has a double hernia for which his physicians have recommended an operation.

For a considerable period prior to the institution of the instant action defendant had given plaintiff an allowance of $35 per week, which is approximately $150 per month. He had also paid all utility bills and paid for other items such as a dental bill. Additionally, defendant had been making monthly payments of $160 to the bank, the mortgagee of their home. The bank applied $125 of each payment to principal and interest due on the mortgage debt and $35 for taxes. Plaintiff will now have to assume these payments, for in dividing the estate the trial court awarded her the home, subject to the mortgage. Thus defendant had been paying more than $310 a month for items that plaintiff will now have to pay for out of the $350 a month alimony awarded by the judgment.

Defendant contends that because of his heart condition his future earning capacity has been impaired. However, prior to time of trial the heart condition had not impaired his earnings. The trial court properly determined the amount of alimony awarded as of time of trial. Whether his earnings will be less in the future is not material because if this does occur defendant can then move the court for a reduction based on such a change in circumstance. ¹

On a number of occasions this court has made it clear that upon termination of the marriage relationship, the husband has a continuing obligation to support his wife in the manner to which she was accustomed. ² The trial court found that the parties were accustomed to a high standard, as evidenced by this statement:

'The Court believes that this couple have led a good life. That they are accustomed to moving in the higher circles of society. The Court believes that the plaintiff should not be unduly hampered in living, if that is possible.'

Upon our review of the pertinent facts, as herein related, we do not find the award of permanent alimony to be excessive, and thus it does not constitute an abuse of discretion.

Division of Estate.

The total property owned by the parties at the time of the trial consisted of:

(1) A commercial building in Wausau valued at $230,000, but encumbered by a first mortgage of $170,000, a second mortgage of $67,000, and a third mortgage of $15,000. The building is under a 12-year-lease to the Johnson Hill Co., at a monthly rental of $1,890. The rentals are paid directly to the bank, the holder of the $170,000 mortgage.

(2) The home held in joint tenancy, valued at $14,000, but subject to an $8,723 mortgage.

(3) Household furniture not valued.

(4) Land in the Horicon marsh that defendant and others owned for hunting purposes. There was no testimony as to the value of this property, but plaintiff admitted such value was trivial.

(5) A $400 check from a condemnation award.

(6) An undisclosed amount in a checking account.

(7) Two automobiles--a 1951 Pontiac valued at $100 and a late model Cadillac not valued.

The judgment awarded to plaintiff the home and its furnishings, the $400 check, the 1951 Pontiac, and a money judgment of $25,000 against the defendant, which, if not paid, is to bear no interest until three years from the date of the judgment, and after that period is to draw interest at five percent per annum. Defendant was awarded the commercial building, the hunting property, the checking account, and the late model Cadillac.

While the division of estate in a divorce action is peculiarly within the discretion of the trial court, this court has repeatedly laid down the guideline that in general a third of the estate is a liberal allowance to the wife subject to be increased or decreased according to special circumstances. ³ In Kronforst v. Kronforst ⁴ we set forth four factors which would warrant granting an award of more than one-third to the wife. These are a long period of marriage, complete lack of any separate estate in the wife coupled with her inability to support herself, low award of permanent alimony, and break-up of marriage due to husband's wrongful conduct. ⁵

In the instant case three of these four factors are present which would justify granting a more favorable division to plaintiff than one-third, i. e., long marriage, no separate estate and inability to support herself by her own efforts, and...