January 6, 1959 —
February 3, 1959.
APPEAL from part of a judgment of the municipal court of Kenosha county: HARRY V. CARLSON, Judge. Affirmed.
For the appellant there was a brief by Lepp Lepp of Kenosha, and oral argument by Burton Lepp.
For the respondent there was a brief by David L. Phillips, attorney, and Charles J. Richards of counsel, both of Kenosha, and oral argument by Mr. Richards.
Action for divorce commenced by plaintiff Tekla Yasulis against defendant John Yasulis. The judgment awarded the plaintiff an absolute divorce and decreed a property division in lieu of alimony. From that portion of the judgment setting the terms of the property division, plaintiff appeals.
The parties were married September 12, 1947, when plaintiff was fifty-eight years old and defendant sixty-three. It was the second marriage for both. There were no children born of this marriage; plaintiff had six children by her first marriage, defendant had three.
This action for divorce was commenced in September of 1957, and the divorce was granted the plaintiff on the ground of cruel and inhuman treatment of her by the defendant.
Each of the parties had a separate estate when they were married. Plaintiff owned a bank account amounting to $775, which was enhanced during the marriage to $1,249. She also owned a two-family dwelling in Kenosha valued at $7,500 and from which she derives $100 per month in rents. She receives social security of $48.70 per month. During the marriage she did housework for two of her sons, for which she was paid $40 per month. In December of 1956, she loaned one of her daughters $4,000 for which she holds a mortgage. She also loaned this daughter $1,200 on a personal note, on which there was $900 owing at the time of trial. She also holds a promissory note in amount of $1,400 from the defendant, that sum having been given him by the plaintiff some nine months prior to the marriage and used by him in the purchase of a house which later became the homestead of the parties.
At the time of their marriage defendant owned the homestead property for which he had paid $4,000 of his own money, the $1,400 advanced by plaintiff, and given a mortgage of $1,600 to one John Ditkus. The mortgage was satisfied within a year after the property was purchased. Defendant was then working at the Simmons plant in Kenosha, earning about $60 per week. He owned two vacant lots in the city, one of which he sold during the marriage for $600, of which he gave the plaintiff $300.
For three years during the marriage a daughter of the plaintiff lived with the parties and paid $20 a month rent to the plaintiff. There is a dispute in the testimony as to whether or not she shared any of this money with the defendant.
At the time of trial defendant was retired, receiving retirement and social-security pensions totaling $137.99 per month. The parties owned an automobile valued at $700.
While there is some dispute in the testimony, it appears that both parties contributed to their living expenses and to the purchase of their furniture and cars. Both worked on improvements to the homestead. Defendant paid the taxes. The upper flat of the homestead is rented at $60 per month.
The property of the parties subject to division consisted of the homestead valued at $12,000, household furniture valued at $1,500, and the automobile valued at $700, or a total of $14,200. The trial court awarded the homestead and the car to the defendant. It awarded the furniture and the sum of $3,500 to the plaintiff, which sum included the repayment of the $1,400 advance which she made in the purchase of the homestead "plus any interest together with such share of increase in value as the wife shall be entitled to."
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.
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 elements for the trial court to consider in making a division of property, but the court's authority in such a matter should not be exercised as a means of punishment to the "guilty party." See Barrock v. Barrock, supra.
Since the trial court's award of $3,500 to the wife includes repayment of the $1,400 note plus interest, appellant argues that the award is largely restitution of her separate property; that the amount of the note and interest thereon should be deducted from the property subject to division, which results in the share of the appellant amounting to but 24 per cent of the property. A situation somewhat similar to this was presented in Kalbakken v. Kalbakken (1929), 199 Wis. 501, 502, 227 N.W. 11, where this court said:
"It is of course the estate of the husband and so much of the wife's estate as has been derived from the husband that is to be divided. But in making the award `the special estate of the wife' is to be considered. Sec. 247.26, Stats. It follows, generally speaking, that the larger the separate estate of the wife is, the less will be her share of the husband's estate on division, and the less her estate is the larger her portion of his estate will be. Adding interest to the wife's loan would increase her separate estate and decrease the estate of her husband. So it perhaps makes little, if any, difference whether interest be allowed as such."
One important factor which the trial court had to deal with here is the age of the parties. At the time of trial appellant was sixty-nine years old and respondent seventy-four. Obviously, neither will be able to substantially enhance his or her economic state in the future, and it would be improper for the trial court to so divide the property as to impoverish either one. Another factor in the case is the sizable separate estate of the wife, particularly as compared with that of the respondent.
Considering the particular circumstances involved, it is our opinion that the trial court exercised a sound discretion in making the property division and that the interests of both parties are adequately served thereby.
Appellant also contends that the trial court abused its discretion in ordering her to vacate the homestead within four days. It is our understanding that appellant did not vacate, but has occupied the premises during the pendency of this appeal, and we are not therefore concerned with that question. However, if appellant is still in possession she should be ordered to vacate upon return of this record to the trial court.
By the Court. — Judgment affirmed.