Thorpe v. Thorpe, 80-2334

• Decision Date: 02 July 1982
• Docket Number: No. 80-2334,80-2334
• Citation: 321 N.W.2d 237,108 Wis.2d 189
• Parties: In re the Marriage of George W. THORPE, Respondent, v. Dorothy E. THORPE, Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 237

321 N.W.2d 237

108 Wis.2d 189

In re the Marriage of George W. THORPE, Respondent, v. Dorothy E. THORPE, Appellant-Petitioner.

No. 80-2334.

Supreme Court of Wisconsin.

Argued June 1, 1982.

Decided July 2, 1982.

Frank X. Kinast, Beloit, for appellant-petitioner.

James E. Welker, Janesville, argued, for respondent; Brennan, Steil, Ryan, Basting & MacDougall, S. C., Janesville, on brief.

DAY, Justice.

This case is before us on review of an unpublished decision of the court of appeals dated August 17, 1981, 104 Wis.2d 740, 313 N.W.2d 280, which affirmed an amended judgment of divorce of the circuit court for Rock county, Hon. Floyd H. Guttormsen, Reserve Judge.

The original judgment dated June 4, 1979, was appealed. The court of appeals affirmed in part, reversed in part and remanded for further proceedings. The trial court amended its findings of fact and conclusions of law. An amended judgment was filed November 12, 1980. A second appeal was taken. The Court of Appeals affirmed. This review is of the latter decision of the court of appeals.

The issue in this case is whether that part of the amended judgment of divorce between George W. Thorpe and Dorothy E. Thorpe which divided their property and made no maintenance award to her constituted an abuse of discretion by the trial court. We conclude that there was an abuse of discretion and reverse that part of the amended divorce judgment and remand the case to the trial court for further hearings and findings in light of the criteria contained in sections 247.255 and 247.26, Stats.1977.

George W. Thorpe, born March 25, 1909, and Dorothy E. Thorpe, born July 23, 1913, were married in 1959. At that time George Thorpe was fifty and Dorothy Thorpe was forty-six. George Thorpe owned a six-unit apartment building at the time of the marriage. It was subsequently sold and the proceeds used to pay for a duplex that was occupied by the parties and in which George Thorpe lived at the time of the divorce.

Dorothy Thorpe started divorce proceedings in 1964 and stipulated to a property settlement in which she received $4,500 in cash while George Thorpe received the remainder of their property. Five months after the divorce the parties reconciled, and the divorce judgment never became final. By the time of the reconciliation, Dorothy Thorpe had spent most of the $4,500 which she had received in the property settlement. There was testimony that, at the time of the reconciliation, the parties entered into an agreement whereby Dorothy Thorpe forfeited her right to any marital property should the parties subsequently divorce, but this agreement was never placed in the record and there was conflicting testimony as to its terms.

On March 4, 1978, Dorothy Thorpe went to California. On March 13, 1978, George Thorpe began this divorce action.

The trial of the matter, at which both parties appeared, was held on January 23, and February 7, 1979. Prior to the trial George Thorpe filed a disclosure of assets as required by section 247.27(1), Stats.1977. ¹ That statement set forth assets totalling $46,176.80, consisting of a home (the duplex) which Mr. Thorpe valued at $32,000, a vacant lot valued at $1,500, a 1976 Ford LTD valued at $3,200, a 1978 Ford valued at $4,000, a bank account and a credit union account, each valued at $2,000, and personal property. There were no liabilities listed. George Thorpe listed an income of $624.48 per month, composed of $326 in social security, a $178.48 pension and net rental income of $120 per month from half of the duplex. His statement listed Dorothy Thorpe's income as consisting of $138 per month from social security.

Dorothy Thorpe did not file the required disclosure form. At the hearing, testimony was taken relating to the property of the marital estate and the parties' incomes. The trial court, in its amended findings, found that the $2,000 bank account, which was in Dorothy Thorpe's name, consisted of a gift from her aunt and therefore was not part of the marital estate. The trial court also found that Dorothy Thorpe owned two rings. One ring, valued at $1,600 was an inheritance from her father and therefore not part of the marital estate. The second, valued at $350 was apparently held to be part of the marital estate.

A real estate appraiser testified on Dorothy Thorpe's behalf that, in his opinion, the duplex had a fair market value of $42,500 and the vacant lot had a value of $3,500.

Concerning her income producing capacity, Dorothy Thorpe testified that she was unable to work because of back trouble. She testified that while she was in California she had been employed as a housekeeper and earned $500 per month plus room and board but had to quit because of health problems, including her back. George Thorpe testified that he was disabled and unable to work. The parties also testified as to their expenses. He testified his came to $426.50 per month. She testified hers totaled $455 per month.

There was also testimony by a savings and loan officer that on March 6, 1978, George Thorpe transferred money from a bank account and a certificate of deposit, both of which were joint accounts listing George W. Thorpe and Dorothy E. Thorpe as owners, into new accounts which were solely in George Thorpe's name. George Thorpe then closed out the certificate of deposit on March 9, 1978, and the Golden Passbook Account on July 17, 1978, realizing a total of $11,307.86 from the accounts. Similarly, an officer of Fairbanks Morse Credit Union testified that in March, 1978 George Thorpe closed out two accounts, each valued at $2,000. One was in the name of Dorothy Thorpe or George Thorpe, the other in the names of George or Dorothy or Robert Thorpe. (Robert Thorpe is George's son by an earlier marriage). George Thorpe opened an account in his and Robert Thorpe's names with a deposit of $2,000.

On February 8, 1979, the trial court issued a memorandum decision dividing the property of the parties. He awarded Dorothy Thorpe permanent possession of the "1978 Ford automobile now in her possession," and a cash settlement of $3,600, payable in $150 monthly installments. This payment was in addition to sums which George Thorpe was obliged to pay Dorothy Thorpe because of his earlier failure to comply with a temporary maintenance order awarding Dorothy Thorpe $50 per week while the divorce was pending.

The trial court subsequently issued findings of fact and conclusions of law and granted a judgment of divorce. Both parties appealed to the court of appeals. The court of appeals, in an unpublished decision dated April 8, 1980, affirmed the decision of the trial court to give no effect to the alleged 1964 agreement by which Dorothy Thorpe renounced any claim to any marital property in the event of divorce. It also affirmed the trial court decision upholding the temporary maintenance award of $50 per week to Dorothy Thorpe and finding George Thorpe in contempt for not complying with that award. The court of appeals reversed that part of the judgment containing the property division and no maintenance award to her on the ground that the trial court did not adequately explain how it exercised its discretion, stating:

"The grant of maintenance is based on two factors, the need of the recipient spouse and the ability to pay of the potential paying spouse. Bussewitz v. Bussewitz, 75 Wis.2d 78, 248 N.W.2d 417 (1977). It seems obvious to us that Dorothy has need, so the trial court must have decided that George could not afford to pay. This conclusion seems unwarranted, however, on the record before us. Furthermore, the trial court fails to explain why even though it refused to give Dorothy maintenance, it still awarded the vast majority of the marital estate to George. This divorce has truly left Dorothy impoverished, and our review of the record indicates that this result is neither required nor appropriate." (Slip Op., page 4).

On remand, the trial court issued more detailed factual findings and a supplementary memorandum, and reaffirmed its prior property division and denial of maintenance to Dorothy Thorpe. Dorothy Thorpe appealed this amended judgment to the court of appeals which affirmed the trial court in a per curiam decision. She then petitioned this court for review. We granted that petition.

In the recent case of In Matter Of Marriage Of Jasper v. Jasper, 107 Wis.2d 59, 63-64, 318 N.W.2d 792 (1982), this court set forth the standard of review of a trial court's maintenance award and property division in a divorce judgment.

"We note at the onset that a trial court's award of family support and division of property will be overturned only if an abuse of discretion has occurred. Vander Perren v. Vander Perren, 105 Wis.2d 219, 226-27, 313 N.W.2d 813 (1982); Perrenoud v. Perrenoud, 82 Wis.2d 36, 45-46, 260 N.W.2d 658 (1978); Bussewitz v. Bussewitz, 75 Wis.2d 78, 89-90, 248 N.W.2d 417 (1977). 'An abuse of discretion occurs when the trial court has failed to consider proper factors, has made a mistake or error with respect to the facts upon which the division was made, or when the division itself was, under the circumstances, either excessive or inadequate.' Perrenoud, supra at 46 Furthermore, as we have recently stated: 'A discretionary determination, to be sustained, must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law.... [M]ost importantly, a discretionary determination must be the product of a rational mental process by which the facts of the record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination.' Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16 (1981). We would emphasize that a trial court in a proper exercise of discretion may reasonably reach a conclusion which we would not reach, and it will be upheld if a reasonable court could arrive at that conclusion using the...