Trowbridge v. Trowbridge
| Decision Date | 09 March 1962 |
| Citation | 16 Wis.2d 176,114 N.W.2d 129 |
| Parties | Anne Louise Frazier TROWBRIDGE, Respondent, v. Richard TROWBRIDGE, Appellant. |
| Court | Wisconsin Supreme Court |
Action for divorce of Anne Trowbridge from Richard Trowbridge. The circuit court found Richard guilty of cruel and inhuman treatment. Custody of the three minor children, aged 14, 16, and 18 was awarded to Anne. Richard was ordered to pay alimony of $250 per month, this sum not to be raised or reduced in any future proceeding, and $200 per month support money until the youngest child reaches age 21.
Richard is 41 years old and is a newspaper executive earning approximately $18,000 per year. In 1960 he received dividends from his stock in the Milwaukee Journal by which he is employed in excess of $3,500. Anne is 40 years of age. She has no training in any trade or skill, and was not gainfully employed during the marriage. The parties were married November 15, 1941. Except for a gift of $5,000 from Richard's father, the source of all their property was Richard's earnings.
The present assets at the values found by the court and the disposition ordered are as follows:
Total Awarded to Awarded to Other
Anne Richard
Home $36,500
Mortgage 13,382 $23,118 $23,118
Lake Property 8,400 8,400
Journal Stock 59,000
Encumbrance 33,000 26,000 $26,000
Walnut Grove Stock 950
1956 Ford (wrecked) 35 35
1960 Ford 700 700
Life Insurance (cash value) 595 595
Furniture 3,600 3,600
U. S. 'E' Bonds 300 300
Totals $63,698 $35,153 $26,700 $1,845
It will be apparent that Anne was awarded 55 per cent of the total value of the present assets as listed above. The value of the 1960 Ford was not determined by the court, but the record indicates that the parties were willing to deal with it as if equal in value to an older car with a book value of $695. Anne was required to assume the mortgage on the home and Richard to pay the loan encumbering the Journal stock. The Walnut Grove stock and 'E' bonds were ordered held in Anne's custody for the education of the children. The life insurance which the record shows had a cash value of $595 amounted to $32,500 principal sum. The court ordered it kept in force by Richard with the children designated as beneficiaries.
Richard was ordered to pay all medical expense in excess of $25 in any one month incurred in the future by Anne, and all medical expense in behalf of the children in excess of $40 per month for any one child. He was also required to pay the outstanding indebtedness, including 1960 real estate taxes on the home and a portion of the current tuition for the oldest child. He was ordered to pay $1,200 toward his wife's attorney's fees.
In addition to the property described above, Richard has an interest in a trust established under the will of his father which will be further described in the opinion. If he survives his mother, aged 80, he will be entitled to the balance remaining in trust at the time of her death. The value of the trust at the time of trial was $62,351 but corpus is subject to certain depletion. The judgment awarded and transferred 30 per cent of Richard's interest in this trust to Anne.
Richard appealed from the parts of the judgment entered April 20, 1961, other than that part which granted the divorce.
Rubin, Ruppa & Wegner, Milwaukee, for appellant.
Bass & Goldstein, Milwaukee, Bernard Goldstein, Gerald L. Bass, Richard C. Weil, Milwaukee, of counsel, for respondent.
1. Alimony freeze. With respect to the alimony awarded, the judgment contained a provision that the monthly payment shall be constant and neither party 'shall be allowed, for any reason whatsoever, to come into this Court to either raise or reduce said sum of Two Hundred and Fifty ($250.00) Dollars per month.'
Sec. 247.32, Stats., provides:
At an early date this court held that a court has no power to make a final provision for alimony, nor to divest itself of authority to revise it. 1 The court stated the policy on which the statute was framed, as follows:
(p. 211)
Although it was the law for many years before 1935 that a divorce judgment could not contain both a final division of property and an award of alimony, the amendment of sec. 247.26, Stats., by ch. 379, Laws of 1935, changed that rule. Since then, a judgment may include both a final division and an award of alimony. If it provides only for a final division, it may not thereafter be modified to substitute or to add a provision for alimony. If it provides for both, the provision for alimony may be revised from time to time, but the division of the estate is fixed for all time. 2
The provision of the judgment 'freezing' the alimony is therefore a nullity, and the circuit court is directed to strike it out.
2. Division of property other than trust. Anne was awarded property having a value of $35,153, or 55 per cent of the value of the assets apart from the trust.
3
The determination of the trial court must prevail unless clearly characterized by mistake or error with respect to the facts upon which the court exercised its discretion. 4
What special circumstances may the court have properly considered in awarding 55 per cent of the estate now in hand to Anne?
(a) Alimony freeze. We have no doubt that the size of the portion awarded Anne was related to the provision freezing alimony at $250 per month, and that the circuit court would not have granted her so much if it contemplated that she might obtain an increase in alimony later on. Since the provision freezing alimony can not be effective, it follows that the award should be reduced.
(b) Health. Anne apparently has a type of leukemia. Her physician indicated that she may nevertheless survive for many years, and could not say whether or not she will be able to be employed. This condition could properly be considered as reason for a larger award. The court did, however, provide that Richard must pay her medical expenses in excess of $25 per month. Furthermore, a substantial deterioration of her health would be a circumstance to be considered if an application be made for modification of alimony.
(c) Misconduct. Misconduct of a spouse may be given weight by the trial court in making a division of property, but that spouse is not to be pilloried. 5 Where loss results from deliberate misconduct, it is reasonable that the loss be made to fall more heavily on the guilty party, but we do not view the court's power to divide property as an appropriate means of punishment. 5a
The court awarded Anne slightly less than one third of the value which may come to Richard by reason of the trust under his father's will. This fact was doubtless also considered in deciding the portion of the assets presently in hand which should be awarded to her.
We conclude that the award to Anne out of the assets other than the trust should not exceed 45 per cent of their total value, and the circuit court is directed to alter the judgment accordingly.
3. Children as beneficiaries of Richard's life insurance policies, and support provisions. The judgment provided that the life insurance policies be kept in force until further order of the court and that the children are to be designated as beneficiaries.
Richard does not object to the requirement that he maintain the life insurance for the benefit of the children during their minority, but contends that this obligation as to each child should end when the child reaches 21. The contention is correct, 6 as Anne concedes. The circuit court is directed to amend the judgment accordingly.
Richard also objects to the portion of the judgment which provides that he must pay $200 per month for support of the minor children until the youngest child reaches 21 even though the two older children reach majority. It is clear that the court has power to modify the amount at any time, and will be able to do so upon a review of the circumstances as each child reaches 21. 7 This part of the judgment provides what shall be done in the absence of such change. So construed, it need not be modified now.
4. Division of interest in testamentary trust. Richard's father was apparently a resident of Wisconsin when he...
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