In Hull v. Hull (1956), 274 Wis. 140, 79 N.W.2d 653, citing Gauger v. Gauger (1914), 157 Wis. 630, 633, 147 N.W. 1075, we said that a clear third of the estate is a liberal allowance to a wife in the division of the estate, subject to be increased or decreased according to special circumstances.Summary of this case from Morris v. Morris
November 5, 1956 —
December 4, 1956.
APPEAL from parts of a judgment of the municipal court of Rock county: ARTHUR L. LUEBKE, Judge. Reversed.
For the appellant there was a brief and oral argument by Donald F. Gallagher of Evansville, and Crosby H. Summers of Janesville.
For the respondent there was a brief by Albert H. Gill of Evansville, and Geffs, Geffs, Block Geffs of Janesville, and oral argument by Mr. Jacob Geffs and Mr. Gill.
The action was commenced on July 16, 1954, by Leona G. Hull, plaintiff, against Harold W. Hull, defendant, for an absolute divorce, on the grounds of cruel and inhuman treatment. A counterclaim was interposed by defendant, alleging cruel and inhuman treatment, and subsequently there was an amended cross complaint by defendant.
The plaintiff, age forty-five, and the defendant, age forty-five, were married at Belvidere, Illinois, on July 18, 1931. Seven children, six of whom are living, were born to the parties. Two are now, adults; three, aged eighteen, eight, and six years, are dependents. At the time of the marriage neither party had any property. Defendant's father contributed a lot to the couple, and plaintiff's father helped build a house at cost. From the time they were married until March, 1944, the parties made several moves, depending upon where defendant could get work. In March, 1944, they located at Evansville, where defendant worked in a store until he went into the navy. After leaving the service, and in 1946, when he was again employed at a store in Evansville, defendant purchased an old building and four tenths of an acre of land situated about four blocks from the business district of Evansville. He worked during vacation periods and at night getting the building ready for a meat-processing plant. In 1948, he purchased an 80-acre farm, which he remodeled, setting up hog pens and other buildings suitable for a feeder operation, so that the farm was especially adapted to being used in conjunction with his meat-processing business and was located adjacent to the processing plant. The business was successful, and defendant's income-tax returns for the years 1952 to 1954 showed an annual net income of from $5,000 to $5,200.
Defendant was a hard worker; he was willing to take any kind of a job during the depression years; he was willing to work long hours, sometimes holding two jobs at one time; but it was not until after 1946 that he was able to make any progress in acquiring an estate. During the married life of the parties, Mrs. Hull's financial contributions to the estate were small. In the summer of 1933 or 1934 she worked at the Hough Shade Company. In 1942 she worked about a month or six weeks. From October to May of 1946 she earned about $900 as a bookkeeper. The rest of her time was spent raising her family.
At the commencement of the trial, the parties stipulated to the values of the following items in the amounts set forth:1. Farm ........................ $20,000.00 2. Livestock ................... 5,950.00 3. Machinery ................... 1,365.00 4. Feed ........................ 255.00 5. Truck ....................... 600.00 6. Household goods ............. 1,157.50 The value of defendant's Chrysler car was later stipulated at $1,880. The value of the meat-processing plant and equipment was in dispute at the trial. After hearing the evidence, the court placed a value of $15,000 on plant and equipment, The testimony of the defendant was that his indebtedness as of September, 1955, was $12,655.54.
This figure is according to the record, but apparently should be $47,034.00. REPORTER.
The court also found in its findings of fact that:
". . .the plaintiff in effecting the property settlement shall have the option of buying the 80-acre farm above described for twenty thousand dollars ($20,000), which option the plaintiff has exercised."
The trial court, in its conclusions of law, found:
"That the plaintiff is entitled to an absolute divorce, and to one half of the net estate of the parties; to alimony in the amount of fifteen dollars ($15) a week, and to the care and custody of the minor children and support money, together with medical expenses, in the amount of fifteen dollars ($15) per week for the three youngest children until the further order of the court; that the defendant should pay plaintiff's attorney, Jacob Geffs, fees and disbursements in the sum of one thousand six hundred sixty-nine dollars and forty cents ($1,669.40), and plaintiff's attorney Albert H. Gill the sum of eight hundred forty-seven dollars and sixty-eight cents ($847.68)."
Judgment was entered against defendant February 18, 1956. From the parts of the judgment granting alimony, and awarding a division of property, the defendant appeals.
The principal issue on this appeal, as we view it, is whether there was an abuse of discretion on the part of the trial court in awarding to Mrs. Hull one half the net estate of the parties as a division of property, as well as requiring Mr. Hull to pay alimony to her of $15 per week.
The principles which should govern a trial court in making a division of estate in divorce actions were carefully reviewed by this court in Gauger v. Gauger, 157 Wis. 630, 633, 147 N.W. 1075, and are as applicable today as when that case was decided in 1914. It was therein declared, "it has been pretty well established that a clear third of the whole is a liberal allowance to the wife, subject to be increased or decreased according to special circumstances." In the instant case, the learned trial court pointed out no special circumstances in his memorandum decision as a basis for awarding Mrs. Hull more than one third of the estate. A careful reading of the record has failed to disclose any ground which, in our opinion, would justify a property division to her in excess of one third of the net estate.
Counsel for Mrs. Hull cite Brackob v. Brackob, 262 Wis. 202, 54 N.W.2d 900, and Brackob v. Brackob, 265 Wis. 513, 61 N.W.2d 849, wherein we permitted a division of one half of the net estate to the wife. However, in that case, there were special circumstances to justify such result. The wife was awarded custody of three very young children, making it advisable that she be awarded title to the home and household furniture in the division of the estate. The net value of such assets exceeded one half of the value of the net estate, so that, in order to carry out a division of one half thereof to each party, it was necessary to give the husband a lien on such home for $3,000. The home was already incumbered by a mortgage of $7,150 and unpaid taxes of $303.30. The market value of the home was $15,500, and it, therefore, is readily apparent that if a lien greater than $3,000 was imposed thereon in favor of the husband, there would be danger that such burden would force the wife to give up the home.
It is our considered judgment that in the instant case the amount of property to be awarded to Mrs. Hull in making the division of estate should not exceed one third of the net value of the estate. The award of $15 per week alimony is approved.
The next point to be considered is the provision in the decree granting to Mrs. Hull the option to acquire the farm for $20,000, which option she has exercised. She no longer resides on the farm, which clearly indicates that such option was not necessary in order to insure that she and the younger children would be provided with a proper home in which to reside.
Since their acquisition, the farm and the processing plant have been operated as an integral unit. The farm was adapted by Mr. Hull to raise feeders for the processing plant, and, in turn, the livestock was fed from residue from the plant. If Mr. Hull were forced to buy another farm, he would have to undergo the burden of making additional investment to adapt it to use as an adjunct of his processing plant. There also would be a serious question as to whether he could acquire a suitable farm as conveniently located to the processing plant as the present farm. Any additional financial burdens cast upon Mr. Hull as a result of having to yield up the present farm and purchasing and equipping another might jeopardize his ability to pay support money and alimony, and is not in the true interest of Mrs. Hull and the children.
We, therefore, conclude that both the processing plant and the farm should be awarded to Mr. Hull in the property division, and that Mrs. Hull be given a lien on either or both as security for the amount of cash due her as part of her one-third division of estate.
The other points raised on this appeal concern valuations of assets by the trial court. Upon review of the record, we find no reason to disturb any of the findings of the trial court with respect to valuation of various items of property, part of which were stipulated by the parties.
By the Court. — That part of the judgment appealed from is reversed, and cause remanded for further proceedings consistent with this opinion. Each party to pay his or her costs on this appeal, except that the appellant shall be required to pay the amount directed to be paid as attorneys' fees and disbursements of appeal under the order of the trial court dated March 22, 1956. Defendant to pay clerk's fees.