36 N.W.2d 79 | Wis. | 1949
This is an appeal from that portion of a judgment of divorce entered July 1, 1948, awarding alimony to the plaintiff and providing that the defendant shall pay all extraordinary medical and dental expenses in excess of $10 for any one item or period of illness. The action was commenced on April 30, 1948. A separate appeal is made from the order entered on October 13, 1948, requiring the defendant, within thirty days from October 8, 1948, to pay to plaintiff's attorney the sum $80 for printing and costs in the supreme court appeal; and requiring the defendant, within sixty days from October 8, 1948, to pay the sum of $250 to the plaintiff's attorney as attorney fees in the supreme court appeal.
Plaintiff and defendant were married September 16, 1944, and, after the marriage, lived with the defendant's parents on their eighty-acre farm in the town of Westport, Dane county.
In March, 1944, prior to the marriage, the defendant entered into an agreement with his father whereby the defendant would rent the farm for $600 per year and would purchase the livestock, machinery, and a small amount of grain for $4,000. Prior to the marriage the defendant paid his father the $600 rent and shortly after the marriage he paid his father $1,000 upon the agreed purchase price of the personal property. He was to pay four per cent interest on the unpaid balance of $3,000.
The parties did not get along well together. There was constant wrangling, some mild physical scuffling, and "in-law" interference. They separated for about ten days shortly after Christmas in 1944, and then resumed living together again. *304 The defendant's parents moved off the farm but the difficulties continued. In May of 1945, the parties separated and have not lived together since.
After the final separation, the defendant started a divorce action but upon the hearing, the plaintiff told the presiding judge that she was pregnant and the court refused to grant any decree at that time. The child was born January 31, 1946. Defendant continued to operate his father's farm until March, 1946, at which time he gave the personal property back to his' father. He owed his father $600 rent for the 1945-1946 season, and $3,000 plus interest on the purchase price of the personal property. Although no grain was included, the defendant estimated that the personal property turned back to his father had a value of approximately $7,000. Defendant received $300 from his father and a complete release from the rent. He then continued to work on the farm for his father at a salary of $100 per month and room and board. However, in December of 1947, the father sold the farm for $25,000, and the personal property for $12,000.
The defendant is an only child and now lives with his parents in Madison. He is presently employed by the Wadhams Oil Company. The record shows his base pay to be $184 per month. The amount is approximately $161 after deducting social security and taxes. He pays his mother $15 per week or $65 per month, for room, board, and washing. The only property he has is a 1938 Dodge automobile, and a $1,000 life insurance policy. Since the separation he has spent about $3,000 for alimony, support money, doctor bills, and attorney fees, and he owes $100 for room and board, and attorney fees for two previous hearings, and attorney fees and costs in the present action.
The plaintiff is thirty-two years old, has completed four years of college training, and is a licensed teacher. She has a civil-service rating and since the separation has worked in various State departments. During that time the plaintiff has had the child in several foster homes but the arrangement *305 was difficult and unsatisfactory and on April 21, 1948, she quit to take care of her baby. Plaintiff has maintained a one-room-and-bath furnished apartment that costs her about $42 per month. The record shows that she has household furniture, consisting of a rug, chair, and roll-away bed, $1,000 insurance policy, and $50. She owes approximately $250, including $134 to the Family Welfare Service. It has been necessary for her to live on her savings since April.
Plaintiff's parents are dead. She has two brothers, and one sister living in the state. She cannot live with them because they do not maintain their own homes. The brothers are single, and the sister is married but lives with her foster parents.
The trial court granted plaintiff a judgment of absolute divorce on the grounds of cruel and inhuman treatment and, among other things, ordered the defendant to pay $30 per month as support money for the minor child, $25 per month permanent alimony to the plaintiff, all extraordinary medical and dental expenses for the child in excess of $10, and the sum of $113.70 attorney fees and costs to the plaintiff's attorney, to be paid within eight months of June 16, 1948.
Any other material facts will be stated in the opinion.
It is well established, both in this state and elsewhere, that the husband's duty to support his wife does not cease upon their being divorced. Campbell v. Campbell
(1875),
The evidence shows the defendant's gross income to be about $185 per month, and the plaintiff's potential income from $125 to $175 per month. She is not earning that at the *306 present time, but she is capable of earning that particular amount of money.
The allowance of $25 per month permanent alimony and $30 per month support money for the child is inadequate for the support of both the plaintiff and the child. Additional income must be secured through her own efforts. It is very evident that $55 per month will not cover the cost of maintenance of plaintiff and child.
There will be deducted from the defendant's monthly income of $185, about $25 per month for income and social security taxes, and $55 permanent alimony and support money, leaving a remainder of $105 for the defendant. While the sum is not large, defendant's financial position is better than that of the plaintiff and their minor child.
Even though the burden may be onerous, the obligation of support is present and must be recognized.
It is stated in Baldwin v. Baldwin, supra (p. 204):
"The courts cannot relieve a husband of his legal obligation simply because he may find the discharge of such obligation burdensome."
It is also stated in Littig v. Littig, supra (p. 438):
"Doubtless the burden of paying alimony to the plaintiff and paying the expenses of maintaining his own home is not a light one, but that fact does not constitute a sufficient reason for relieving him. Palica v. Palica,
In Hahn v. Hahn (1947),
"The trial court put some weight upon the fact that plaintiff is a young and attractive woman with prospects of remarriage and that the parties had not been living together for *307 any great length of time. This is a speculative factor in view of the fact that plaintiff has two small children and, in any case, we think that whatever weight it is entitled to is less than that involved in the desirability of permitting plaintiff to spend at least most of her time at home taking care of her children."
The decision of the lower court was reversed and sent back for an award of alimony in conjunction with the award of support money.
We find nothing in the record in this case indicating any abuse of discretion by the trial court, or that the allowance made was manifestly unjust. See Gray, v. Gray (1942),
The requirement that the defendant shall pay extraordinary medical and dental expenses for the child which exceed $10 for any item or period of illness is reasonable because the plaintiff must also share in the payment of medical and dental expenses as to items under $10.
The defendant agreed to the determination and payment of attorney fees for plaintiff's counsel on appeal, together with the disbursements. Notice was served on the defendant for the determination of attorney fees and disbursements for plaintiff's attorney on defendant's appeal to the supreme court before the trial court at the courthouse in Milwaukee. The defendant did not appear at the hearing but filed an affidavit of prejudice against the court. The trial court in passing upon the matter stated:
"I think that the sum of $250 is very fair and reasonable, considering all the circumstances of this case, and direct the payment of that sum. That is, $250 for attorney fees and $80 for the printing costs, as heretofore directed."
The order providing for attorney fees and disbursements on the appeal is reasonable and shows no abuse of discretion by the trial court and is, therefore, affirmed.
By the Court. — Judgment and order affirmed.
HUGHES, J., took no part. *308