3 N.W.2d 376 | Wis. | 1942
Action for divorce begun March 8, 1939, by Alice Anna Gray against Donald F. Gray. Judgment of absolute divorce was granted plaintiff March 30, 1939, and a division of the property and order for alimony pursuant to an agreement of the parties was made. May 8, 1940, the original judgment was modified by reducing the amount of alimony from $50 to $25 per month. July 2, 1941, an order was issued to show cause why the previous order fixing alimony should not be vacated and set aside. Defendant's motion and application *286
for vacation of the alimony order of May 8, 1940, was denied on July 15, 1941. The appeal is from that order.
One of the questions raised arises from the fact that in the judgment of divorce the court both provided for a final division of estate between the parties and granted the wife alimony. For many years the law in this state was that when the provision made in a judgment of divorce for the wife was a division of property, such provision excluded the possibility of any allowance to her for alimony, and that any provision for alimony in addition to the final distribution of estate should be treated as a nullity.Wacker v. Wacker (1929),
The apparent inconsistency between sec. 247.26 and sec. 247.32, Stats., disappears if the restriction in the last sentence of the latter section, reading: "But when a final division of the property shall have been made under the provisions of section *287
247.26 no other provisions shall be thereafter made for the wife," is applied only to the portion of the judgment which provides for a division of estate. The two sections may then be read together and each have the effect the legislature was intending to secure in changing the structure of sec. 247.26 from the disjunctive to the conjunctive. In other words, although a judgment may now include both types of provisions, a judgment providing only for final division of property may not thereafter be modified to substitute therefor or to include. therein a provision for alimony. Riedel v. NorthwesternMut. Life Ins. Co. (1933)
The record discloses that the property assigned to respondent was property advanced by her father, and that appellant at the time of the divorce agreed that it was to be returned, and further stipulated to pay $50 a month as alimony. This allowance was reduced about a year later to the sum of $25 a month. The respondent is earning $85 a month and appellant $175. We cannot under the circumstances now before us say that the allowance of $25 a month is presently so excessive as to require a revision.
By the Court. — Order affirmed. *288