Van Wyk v. Van Wyk

• Decision Date: 28 November 1978
• Docket Number: No. 76-150,76-150
• Parties: Teunis W. VAN WYK, Respondent, v. Olive A. M. VAN WYK, Appellant.
• Court: Wisconsin Supreme Court

Page 860

271 N.W.2d 860

86 Wis.2d 100

Teunis W. VAN WYK, Respondent, v. Olive A. M. VAN WYK, Appellant.

No. 76-150.

Supreme Court of Wisconsin.

Argued Oct. 30, 1978.

Decided Nov. 28, 1978.

Teunis W. Van Wyk, respondent, commenced a divorce action against Olive A. M. Van Wyk, appellant. The appellant filed an answer and counterclaim. At the trial, the respondent presented no proof and a judgment of divorce entered on the appellant's counterclaim on September 5, 1975.

In granting the judgment of divorce the trial court reserved jurisdiction for a further hearing and trial as to property settlement, child support and alimony. May 20, 1976, an amended judgment was entered as to the division of property and alimony.

December 6, 1976, the trial court entered an order denying the appellant an allowance for expenses on this appeal and alimony during the pendency of appeal. The respondent was ordered to pay certain sums to the appellant for such purposes and the sums so paid were to be considered a portion of her distributive share of the estate when the final division of the property was effected.

L. E. Sheehan and Moen, Sheehan & Meyer, Ltd., La Crosse, and oral argument by Paul W. Henke, Jr., La Crosse, on brief, for appellant.

John H. Drew (argued), and Steele, Smyth, Klos & Flynn Chartered, La Crosse, on brief, for respondent.

HANSEN, Justice.

The issues on appeal relate to the division of the estate, the award of alimony and the allowance of counsel fees and expenses on appeal. The merits of the grounds for divorce are not before us for consideration.

The respondent, a veterinarian, and the appellant had been married twenty-four years. They had four children, and the two youngest children, ages fourteen and seventeen, were living at home at the time the divorce judgment was entered on September 5, 1975.

The appellant had worked as a clerk-typist for six years prior to the marriage. At the time they were married, the respondent had a bachelor of science degree and the appellant had completed her second year in college. For the first five years of the marriage, the respondent attended Cornell University School of Veterinary Medicine. The appellant worked as a secretary to a Cornell research scientist for almost a year, until the birth of their first child. After the birth, she taught art to faculty members' children for a couple months. Since she did not have a teaching certificate she was hired under the school's hot lunch program and was paid accordingly. While living in Ithaca she also worked for a rural radio network for five months. At one point she held three jobs, full time at the New York State Power Authority, Friday evenings and Saturdays at a dress shop and odd hours at a flower shop.

They moved to La Crosse in 1962 or 1963. In La Crosse, she worked for several summers for the Coulee Region of Fine Arts summer art show and was paid $100 for three weeks' work each summer. She also had done some decorating work, but apparently this endeavor was not profitable.

Since 1966, the appellant had been attending Viterbo College part time pursuing a degree in art education. She was a first-semester senior at the time of the hearing and estimated that at her present rate of study it would take another three to four years to earn her degree. This degree would qualify her to teach art at the primary and secondary school levels.

During the years immediately preceding the divorce the respondent had given the appellant $1,000 per month for household expenses and utilities. The temporary order for support pending the divorce required him to pay her $1,050 per month. At the time of trial she submitted an annual budget of approximately $12,000 which figure did not include her college tuition. It appears the respondent has at all times paid the mortgage payments and the taxes on the real estate owned by the parties.

The adjusted gross income of the respondent for the years immediately preceding the divorce approximated $55,000 to $60,000 per year. He expected it to decline because he had taken in an associate. A substantial portion of the assets of the parties consisted of real estate: the house, a veterinary clinic, a small animal hospital, and an undeveloped parcel of real estate. The house, clinic and hospital were subject to a mortgage of approximately $40,000.

Extensive testimony was presented as to the value of the assets and the monthly expenses of the parties. The findings of the trial court on the values of these assets and expenditures are not in dispute and therefore this evidence is not set forth in detail.

The judgment provided that the estate of the parties should be divided on a 50-50 basis; that the house would be sold; and that such a division should be fully accomplished within two years of the date of the judgment. It further provided that such a division of the estate should be in lieu of alimony.

At the time the trial court entered judgment dividing the estate on a 50-50 basis the estate was valued at $230,352.02, subject to such modification as might be necessary depending upon the net proceeds of the sale of the house. Also, at the time this judgment was entered and as a portion of the appellant's 50 percent of the total estate the trial court awarded her $23,288.90. This sum consisted of the household goods and furniture, her personal effects, an automobile, and the liquid assets of the parties in the amount of $12,788.90.

The foregoing judgment on the division of the estate was entered May 20, 1976. The respondent was to pay $125 per month for each child's support until the two children at home reached the age of eighteen years. The older of the two girls would be eighteen on July 3, 1976. The trial court also ordered the respondent to pay to the appellant $1,000 per month for each month she remained in the home from March through July, 1976. Any payments thus made by the respondent to the appellant were to be charged against her distributive share of the estate. Under the provisions of the judgment each party was responsible for the payment of their respective counsel fees and costs of trial.

Subsequent to the entry of the judgment for division of the estate, the trial court entered an order directing the respondent to pay to the appellant $2,300 toward her legal fees and expenses on this appeal and a further sum of $500 per month temporary support pending appeal. Both of these sums were to be charged against the appellant's share of the property when the specific amount of the appellant's 50 percent of the estate was finally determined and settled.

In support of the motion of the appellant for suit money, counsel fees and disbursements on this appeal and for temporary alimony during the pendency of the appeal, the appellant filed an affidavit with the trial court. The affidavit is dated November 10, 1976, and states that she would not earn her degree for at least two more years; that because of emotional distress she had been unable to follow up on a job application with the Wisconsin Employment Service; and that the house had been listed for sale but not sold.

The respondent filed a counter-affidavit stating, among other things, that the listing contract for the sale of the house had not been signed until October, 1976; that he had continued to make the mortgage payments; and that the youngest daughter was then living with him because of a disagreement between the daughter and her mother. At oral argument this court was advised the house had been sold.

The issues to be resolved on this appeal are whether the trial court abused its discretion:

1. In making a division of the property in lieu of alimony;

2. In providing that $2,300 payment of appellant's counsel fees and expenses of this appeal and $500 per month alimony pending appeal by the respondent to the appellant should be charged against her 50 percent share of the estate; and

3. In providing that full and final division of the property between the parties on the basis of 50-50 should be accomplished within two years of the May 20, 1976, judgment.

The appellant contends the trial court failed to give appropriate consideration to her needs when contrasted to the position of the respondent. She argues that by failing to consider the fact she had no income and would not be employable for at least a year, the trial court unreasonably caused her to live off her principal and therefore abused its discretion. Dr. Pauline Jackson, appellant's psychiatrist, testified as to her emotional state and employability. This testimony will be further considered in this opinion.

The respondent contends that the trial court properly considered all relevant factors, including the testimony of Dr. Jackson, and therefore did not abuse its discretion. The respondent also argues that the property division on a 50-50 basis was fair and reasonable and amply provided for the needs of the appellant. It is well established that alimony and division of property are matters within the discretion of the trial court so the trial court's decision on them will not be disturbed unless an abuse of discretion is shown. Bussewitz v. Bussewitz, 75 Wis.2d 78, 89, 90, 248 N.W.2d 417 (1977). An abuse of discretion exists where the trial court has made a mistake of fact, or an error in computation, or the property division is excessive or inadequate. Id. at 83, 84, 248 N.W.2d 417. A failure to consider the relevant factors is also an abuse of discretion. Id. at 90, 248 N.W.2d 417. The same factors are to be considered in reaching a decision on alimony and property division. Id. at 90, 248 N.W.2d 417; Tonjes v. Tonjes, 24 Wis.2d 120, 125, 128 N.W.2d 446 (1964). These factors are the length of the marriage, the age and health of the parties, the ability of the parties to support themselves, their liability for debts and the support of children, other circumstances such as misconduct, whether the property division is in lieu of or in addition to...