Wetzel v. Wetzel
| Decision Date | 09 May 1967 |
| Citation | 150 N.W.2d 482,35 Wis.2d 103 |
| Parties | Marguerite H. WETZEL, Respondent, v. Arthur A. WETZEL, Appellant. |
| Court | Wisconsin Supreme Court |
Ray T. McCann, Milwaukee, Leonard L. Loeb, Milwaukee, of counsel, for appellant.
Burke & Schoetz, Milwaukee, for respondent.
On this appeal the defendant does not quarrel with the granting of one third of the property to the plaintiff but contends the manner in which the one third is made available to the plaintiff is an abuse of discretion by the trial court primarily for two reasons: (1) The tax consequences to the defendant arising from the in specie division of assets was not considered by the court, and (2) the plaintiff should have no interest in the stock of the printing and realty companies, which are closed corporations. The defendant further complains the trial court did not follow any of the recommendations of the family court commissioner and suggests an award of one third of the net estate of the parties should be made in cash or liquidable form payable absolutely over some reasonable period of time by the defendant. And, if invested prudently the trust would have liquidity and produce an income of approximately $16,000 a year, which would adequately support the plaintiff in the manner to which she had become accustomed during marriage. The proposal is claimed to be of an advantage to both the plaintiff and to the defendant in that the defendant would not incur any tax liability on the division of the property because he could borrow to satisfy the liquidated amount awarded to the plaintiff and thus avoid a capital gains tax, and in addition the interest on the loan would actually be a tax deduction to him. He claims under the award as made in kind that he will be liable for approximately $75,000 in taxes based on the appreciation in the value of the assets to be transferred to the plaintiff over his cost basis under the rule of United States v. Davis (1962), 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335. See also Department of Taxation v. Siegman (1964), 24 Wis.2d 92, 128 N.W.2d 658, where the court refused to follow the Davis rationale, but quaere if this case is applicable in view of recent legislative changes in Wisconsin income tax laws.
While there is some confusion in the record whether the family court commissioner was acting as a referee, hearing officer or court commissioner in making findings and recommendations, it is clear that no matter in what capacity the family court commissioner was acting, his findings and recommendations were not binding upon the trial court and no error or abuse of discretion can be predicated upon the court's failure to follow any of his recommendations.
While this court has approved an award of one third of the net estate as a starting point in the division of property, whether or not alimony is given in addition thereto, this court has not required the one-third share or any share of a division to be in specie or in kind and applicable to each item comprising the estate to be divided. In small estates it may be that such a division is the only possible division, but when there are sufficient assets as in the instant case it would seem that any form of joint control or ownership of assets by divorced persons should be avoided. The elimination of the source of strife and friction is to be sought and the financial affairs of the divorced parties separated as far as possible. If the parties cannot get along as husband and wife it is not likely they will get along as partners in business. Especially in this case, because of the plaintiff's health, the defendant should be free in his business affairs from the interference of his wife whether she is represented by a trustee or not. We think therefore the plaintiff's share of the assets should not include the allocation to her of any shares of stock in the Wetzel Brothers Printing Company or the Wetzel Brothers Realty Company or in the debt due from the realty company to the defendant.
Aside from the tax problem, we think Mrs. Wetzel's share of the estate should consist of the home, household items other than those owned by the company and the items in the defendant's apartment, the investment portfolio, and her personal effects. We find no abuse of...
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Theuerkauf v. Sutton
...when entering into a divorce stipulation has a duty to consider tax consequences to his client." See also: Wetzel v. Wetzel, 35 Wis.2d 103, 110, 150 N.W.2d 482 (1967), where this court imposed a duty on judges in contested divorces to consider the tax consequences of property divisions in t......
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Perrenoud v. Perrenoud
...or income other than the sale of antiques."18 See Seiler v. Seiler, 48 Wis.2d 400, 406, 180 N.W.2d 627 (1970); Wetzel v. Wetzel, 35 Wis.2d 103, 110, 111, 150 N.W.2d 482 (1967).19 See Wahl v. Wahl, 39 Wis.2d 510, 515, 159 N.W.2d 651 (1968); Whitman v. Whitman, 34 Wis.2d 341, 149 N.W.2d 529 (......
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Clark v. Clark
...and potentially unjust, result. The great weight of authority in other jurisdictions supports our position. E. g., Wetzel v. Wetzel, 35 Wis.2d 103, 150 N.W.2d 482 (1967); see generally Annot., 51 A.L.R.3d 461 While it is true that the trial court made no specific finding of fact concerning ......
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Wright v. Wright, 77-686
...wife argues that the trial court must be presumed to have meant that the wife should not have to pay because in Wetzel v. Wetzel, 35 Wis.2d 103, 110, 150 N.W.2d 482, 485 (1967) this court "We think in making a division of property or in granting alimony or both that consideration should be ......