Shetney v. Shetney
| Decision Date | 01 December 1970 |
| Docket Number | Nos. 61,135,s. 61 |
| Citation | 181 N.W.2d 516,49 Wis.2d 26 |
| Parties | Greta SHETNEY, Appellant, v. Orville B. SHETNEY, Respondent. Orville B. SHETNEY, Appellant, v. Greta SHETNEY, Respondent. |
| Court | Wisconsin Supreme Court |
These are appeals from judgments of the county court of Dane county and the circuit court for Dane county.
The appeal from the county court is from a divorce judgment in which a divorce was granted to the defendant, Greta Shetney, and the appeal is taken by the plaintiff, Orville Shetney, only from the property division.
The appeal from the circuit court judgment is taken by the plaintiff, Greta Shetney. The judgment therein dismissed the plaintiff's complaint, which alleged the the parties had entered into an antenuptial contract, which contract, it was alleged, provided that Orville Shetney would assist Greta Shetney in obtaining a Ph.D. degree if she would first assist him in securing his Ph.D. degree.
Although the actions were brought separately, they are between the same parties, and some of the same evidence was introduced in each case. The appeals were therefore consolidated for argument. Although the appeals are separate, the facts are so interwoven that we deem it appropriate to dispose of the cases by a single opinion with separate mandates.
The divorce action was commenced by Orville Shetney against Greta Shetney on July 7, 1967. The wife answered the complaint and by counterclaim asked for a divorce on the grounds of cruel and inhuman treatment and for a division of property and alimony. When the case came on for trial on May 14, 1968, Orville Shetney withdrew his complaint. Testimony was taken, and the divorce was granted to Greta Shetney. Since the cause of action for Greta Shetney's divorce was not contested, the trial was substantially concerned with the matter of property division and alimony.
On July 11, 1968, the trial judge issued a memorandum decision in which he outlined a division of property in lieu of alimony. Judgment pursuant to the trial judge's memorandum and order was entered on September 16, 1968. Orville Shetney has appealed only from the property division portions of the judgment.
The circuit court case is a contract action, which was commenced by Greta Shetney against her husband, Orville Shetney, on February 5, 1968, approximately seven months after the divorce action was started and about two months before the divorce action came to trial. Initially, Orville Shetney demurred to this complaint on the grounds that the circuit court lacked jurisdiction because similar facts were being litigated in the divorce action. The demurrer was overruled, and the trial commenced on March 24, 1969, subsequent to the time that the divorce judgment had been entered. The jury found that the parties had entered into an agreement separate from their marriage relationship, that the wife had performed her part of the agreement, but that the husband had refused to perform his part of the agreement. Damages were awarded in the sum of $6,473.41.
On motions after verdict, Orville Shetney moved for a new trial. On August 6, 1969, Circuit Judge Norris Maloney, after comparing the evidence submitted by Greta Shetney at her divorce trial with that in the contract trial, concluded that for the purpose of supporting her contentions for the division of property, Greta Shetney had introduced evidence of her contributions to her husband while he was working on his doctorate degree. Similar evidence was introduced at the trial of the contract case. Judge Maloney concluded that by so doing she had elected her remedies and she was therefore foreclosed from relying on an inconsistent claim in the contract action--that the contributions were separate from the marital relationship. Judgment was entered dismissing the contract complaint on the merits.
Barsness Law offices, Madison, John G. Barsness, Madison, of counsel, for Orville Shetney.
Noreen G. Bengston, Madison, for Greta Shetney.
The divorce action (Case No. 135)
In Gauger v. Gauger (1914), 157 Wis. 630, 632, 147 N.W. 1075, 1076, we stated:
'The division of property * * * 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.'
Section 247.26, Stats., provides in part:
'* * * The court may also finally divide and distribute the estate, both real and personal, of the husband, and so much of the estate of the wife as has been derived from the husband, between the parties and divest and transfer the title of any thereof accordingly, after having given due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties and all the circumstances of the case; * * *'
In Radandt v. Radandt (1966), 30 Wis.2d 108, 113, 140 N.W.2d 293, 295, this court stated:
In Lacey v. Lacey (1970), 45 Wis.2d 378, 173 N.W.2d 142, we reviewed the earlier cases in respect to the division of property. We pointed out that what was been referred to as the 'one-third rule' is not a rule and is not 'an exact formula or mandatory measuring stick for property division in divorce cases.' Rather, we concluded that the proper approach to be followed in a particular case 'depends upon and derives from the material facts and factors present in such case.'
We therefore disagree with the contention of the appellant, Orville Shetney, who takes the position that, since the property division herein gives almost the entire estate of the parties to the wife, it ipso facto evinces an abuse of discretion by the trial judge.
There are many factors which were approved in Lacey v. Lacey, supra, which would weigh in favor of an increased award to the wife in the instant case. The marriage was a long one, lasting sixteen years. The wife earned a salary of $7,300 at the time of trial, while her husband was earning substantially more. There was, in addition, evidence that, if she were to advance in her chosen field, it would be necessary for her to return to school to update her master's degree and to earn her doctorate degree. She was forty-two years of age, and her past work record indicated a patchwork of experience, which could not be expected to provide the foundation for stable earnings in the future. In addition, she assumed the debts on the real estate and automobile in the sum of almost $11,000. There was also evidence that Greta had contributed from $15,000 to.$19,000 in earnings, as well as $1,500 in savings, to the support of the family during the period of the marital relationship. Such contributions of the wife from her separate estate may well be circumstances which the court should consider in a division of property. Ausman v. Ausman (1966), 31 Wis.2d 79, 141 N.W.2d 869.
On the other hand, there was evidence which militated against giving a higher percentage of the property to the wife. She was in good health at the time of the divorce. She was capable to earning money to support herself and was, in fact, employed at the time of the action. She had already received an education well above the average level. Since the couple was childless, she had no responsibility to any children of the marriage.
We cannot say on the record before us whether the trial judge's exercise of discretion was reasonable or unreasonable, for the simple reason that we do not know which of these considerations influenced the trial court's exercise of discretion.
Divergent appraisals of the home of the parties were in evidence. The trial judge made no finding as to the value of the property. Moreover, there was evidence from which it could have been concluded that the sum of $5,000 paid over to the couple by Orville Shetney's father as a down payment on a home was a loan which Orville was obligated to repay. There was also testimony from which it could be concluded that the $5,000 advance was a gift. The trial court failed to resolve this question. The determination of whether Orville remained liable to his father for the $5,000 advance is a factor that must be considered in the division of the property.
In Lacey v. Lacey, supra, 45 Wis.2d at page 386, 173 N.W.2d at page 146, this court stated:
In Lacey, the cause was reversed and remanded in order that proper findings could be made.
We conclude that a similar disposition of this case is necessary. There was no determination whether the sums advanced by Greta Shetney during the course of the marriage were contributions to pay expenses which were the husband's obligation and therefore arguably a portion of her separate estate or whether they represented the...
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