Yasulis v. Yasulis

• Decision Date: 03 February 1959
• Citation: 6 Wis.2d 249,94 N.W.2d 649
• Parties: Tekla YASULIS, Appellant, v. John YASULIS, Respondent.
• Court: Wisconsin Supreme Court

Page 649

94 N.W.2d 649

6 Wis.2d 249

Tekla YASULIS, Appellant, v. John YASULIS, Respondent.

Supreme Court of Wisconsin.

Feb. 3, 1959.

Lepp & Lepp, Kenosha, for appellant.

David L. Phillips, Kenosha, Charles J. Richards, Kenosha, of counsel, for respondent.

MARTIN, Chief Justice.

It is well established that:

'The division of property, in a case of this sort, 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. Therefore, the trial determination must prevail unless clearly characterized by mistake or some manifest error respecting the detail facts upon which it rests, or disregard of established guides, amounting to a pretty clear want of judicial discretion or judgment.' Gauger v. Gauger, 1914, 157 Wis. 630, 632, 147 N.W. 1075, 1076.

Appellant maintains that the division made by the court is prejudicial to her and constitutes a want of judicial discretion. It is conceded that the circumstances to be considered in determining the propriety of a property division in a divorce action are the ability to earn and the earnings of the parties; the special estate of the wife; the nature of the property and the manner of its acquisition; and the behavior of the parties. Sec. 247.26, Stats.; Hull v. Hull, 1956, 274 Wis. 140, 79 N.W.2d 653; Barrock v. Barrock, 1950, 257 Wis. 565, 44 N.W.2d 527.

Appellant's monthly income includes $48.70 social security, gross rents of $100, probably reduced to $50 by use of one flat for her own living quarters, and $40 from her work. In addition, she has savings, investments and the $3,500 cash awarded in the property division, all of which should yield about $40 per month, bringing her total monthly income to about $180. Respondent receives pensions of $137.99 and $60 rent (assuming he will live in one flat of the homestead property), a total of $198. This represents no great disparity in the monthly incomes of the parties.

The record shows that the wife's estate, after the property division decreed by the court, will amount to over $18,500, whereas respondent will have an estate of approximately $9,200.

Appellant's main contention seems to be that the court should have awarded the homestead to her. For the ten years of their marriage it was home to the respondent as well as the appellant. It was purchased by respondent prior to the marriage with his own money and money borrowed from appellant on a promissory note bearing four per cent interest. Both parties worked on improvements to the property. While both desire to live in the home, the fact is that this is the only home which the respondent owns, while appellant owns another two-family dwelling in which she could make her home. If appellant were given the homestead, respondent would be faced with the alternative of living in a rooming house or spending all his estate in the purchase of another home.

As to the behavior of the parties, it is true that the divorce was given to appellant upon evidence, not disputed in the record, of cruel and inhuman treatment of her by respondent. While his behavior cannot be condoned, the evidence regarding his conduct is not such as would justify a division of property in his disfavor. Behavior of the parties is one of the...