*1 Johnson, Appellant, Johnson, Respondent. Argued 5, 1969. April No. 191. March Decided (Also reported 230.) in 166 N. W. 2d *2 appellant by Orr, Isaksen, For there were briefs Lathrop Werner, Heaney argu- & Madison, and oral Heaney. Donald ment L. respondent
For there Hall brief & argument by Madison, and oral Laurence W. Griffith Hall. appeal,
Connor T. J. On this Hansen, makes three assertions: disregarding
1. The trial court erred in the law of *3 case, rehearing, opinion the set forth in as on this court’s by refusing to consider the facts in the demand for stated of admission facts. property
2. The percent 10 division of of the trust plaintiff assets and percent income to the and 90 to the defendant constituted an of abuse discretion the court. attorney’s
3. Plaintiff is entitled to additional un- fees der the facts this case.
Demand admission for of facts. plaintiff making The contends the division of property remand, on the trial re- court erred fusing alleged plaintiff’s to consider certain facts in the allegedly required demand for admission of as facts previous opinion court.1 The for this demand admission of facts had been served on the defendant prior to time the trial court on the heard the case merits. Johnson, supra, 312, Johnson v. 889.22, Sec. Stats. respond
The defendant did not demand He withdrew amended answer admission facts. his judgment and consented to a default on the merits plaintiff presented quantum The a minimum divorce. proof granted and a divorce. hearing date, At a later was held on the division relying property plaintiff, and related The matters. (3), Stats., on sec. 889.22 insisted that the trial court accept alleged previously true the facts set forth in the as objected plain- demand facts. The defendant ground on tiff’s demand that the of the divorce merits contested, action not were that the issue now before property. plaintiff the court was the division alleged contended in the ad- facts demand for bearing property mission had a on the division. accept trial court refused the facts in de- gave true, opportunity mand but an might concerning they prove whatever she the merits as property. This, bear on division of declined to do. appeal, plaintiff
In her first claimed the trial court failing erred in to consider the demanded to ad facts Upon denying rehearing mitted. a motion for in Johnson supra, Johnson, 314a, following at court made the this determination: apprised “In the instant case the trial court was of the While ruling. claimed error and chose not to alter its sought was error and the facts to be admitted should have evidence, been allowed in we conclude that error appeal. does not affect the results of the *4 judge “The trial stated that he concluded that entirely apparent defendant was at fault. he that upon basis, made and, course, his decision this must bearing property now make the division of in mind the culpability, though defendant’s not to the extent process property punish division is used as a club to offending spouse.” remand,
On the trial court declined to let his considera- tion of the extent defendant’s fault embrace all of plaintiff’s contained in facts demand for admission of facts: “Counsel upon have focused their attention the ele- ment of compelling fault. The has deemed it a consideration in favor of the wife. The court allowed has weigh it to urged by her favor but not to the extent her counsel. The court has considered the defendant at accordingly granted fault and plaintiff; a divorce to the however, this consideration embrace all does not plaintiff’s
facts contained in the demand for admission of facts. accept afforded It must be remembered court not did alleged the truth of the facts in the demand but opportunity prove them, which supports counsel elected not do. The record no allegation of part adulterous conduct on the of the de- fendant.”
On appeal, plaintiff this that the rule of contends from rehearing case the Johnson v. Johnson effect that the trial accept court must the facts stated in the demand to part admit facts and include them as culpability purposes defendant’s of the division of property. misinterpreted
Plaintiff has the intent of the decision rehearing. on the motion for While court did indicate this that the sought trial court erred and that the to be facts admitted should have been in evidence, allowed didwe order not the trial court to consider those facts. Eather cognizance we took of the fact that the trial had court already adjudged that the defendant was at fault and determined that the trial court should make the division property bearing in mind culpability as defendant’s the trial court had found it.
Abuse discretion. “ property, ‘The division sort, a case of this peculiarly resting a matter in the discretion of subject court, such as have rules been established guidance respect to the matter. There- *5 clearly fore, prevail the trial determination must unless respect- manifest error characterized mistake or some disregard ing of established of upon rests, it or the detail which facts amounting guides, pretty to a clear want ” judicial judgment.’ Polleck discretion or Polleck v. 295, 297, 2d 98. Wis. N. W. Nearly (98 percent) all of estate was defendant’s marriage prior vested in three trusts established to his through and and accumulated father efforts his grandparents. divorce, At the time of defendant’s $1,200,000. share the trusts was valued at over The that an to her of 10 contends award percent any proceeds, principal, whether income or otherwise, received the defendant from three percentage trusts such a an small it constitutes abuse of discretion. opinion
In this case we are of the the actual monetary significant. sums involved are also Strandberg Strandberg (1967),
In 33 Wis. 2d 207, 147 N. 2dW. this court stated: “Among the circumstances of the case which should age, ability be taken into consideration are health and parties earn, of the the manner in which the estate accumulated, length parties, was the conduct of the and marriage.” marriage In years’ case the of six duration. was There marriage. two were children born of the theAt time twenty-five years of the divorce the was twenty-eight years age. the defendant plain- good tiff health, degree was had a bachelor’s from University of gainfully Wisconsin employed and was not during marriage. appears separate she had no estate. copilot. salary defendant an airline His at the
time of the per divorce was month. He testified $550 that his first raise approximately would in- double his come and would possibly ceiling continue to increase to a $33,000 per year. entirely the defendant concluded
The trial court *6 property, of addressing the division itself to In at fault. parties, their health of the considered the the trial marriage, also and ages, respective the shortness weight the manner in which gave considerable accumulated: estate was apportionment “Among that make this the factors ac- the estate was the manner
a fair one which is by efforts the it accumulated None of was cumulated. entirely from the de- parties. was derived the It of fendant’s way of grandparents paternal father and his reaching thirty-five die before If he should inheritance. years dren, one trust chil- passes to trust age, interest the his of his Only nothing. receive [Note: and wife would his age required defendant to live to 35.] and sacri- labored case where the wife “This is not a responsibility and the ficed at her husband’s side shared plaintiff done production of an estate. The has for the nothing estate, the the it created nor to create this was prime reason for defendant, has been a and this fact judgment.” court’s Assuming pay annual income the continued to trust that, percent of plaintiff $37,000, receive will money year alimony, support $4,800 per and adjusted alimony can as minor children. The two require. In addi- parties and needs circumstances distributed, principal tion, if of the trusts when and twenty-five years old at plaintiff, who six-year marriage, receive will termination time (based $127,700 on the valuation of trusts at divorce). Roberts v. plaintiff attention to Roberts our directs 130; v. (1948), 305, Caldwell 34 N. 2d 253 Wis. W. 356; 146, (1958), Wahl 2d 92 N. W. 2d Caldwell Wis. 2d 159 W. Wahl Wis. N. which have considered. well as other we authorities property observed, however, substantial in both Roberts and Caldwell awarded to the alimony. Also, thirty- was in lieu in Wahl the wife was eight years age, parties had been married thirteen substantially years, property all of the had been during marriage. accumulated conclude that the trial court We did not abuse dis- its determining cretion in property the division of the parties in this case.
Attorney’s fees. also asks that an she receive additional attorney’s contribution from the defendant for her fees. Initially attorney’s $3,500 the trial court awarded plaintiff, plus fees to the disbursements the amount *7 remand, On the trial court $515.22. awarded an addi- $1,750 attorney’s tional plaintiff. sum fees to the alleges plaintiff Counsel for $10,000. fees in excess attorney’s The matter of allowance of in a divorce fees discretionary case is court, pointed with the trial and as Spheeris Spheeris 512, out 2dWis. 155 N. W. 2d compelled husband cannot be to pay the attorney’s entire amount either dis- fees or only required bursements. The husband “is a to make contribution Wahl, toward them.” supra, Wahl v. at given
The trial court has careful consideration attorney’s allowance of fees and we cannot find that the allowance determined constituted an abuse discretion part judge. on the of the trial appealed defendant has part also from that by the order entered denying defendant’s judgment motion for review of the on remand and mo- judgment tions after on remand wherein the trial court assignment was asked to any strike the percentage for of trust funds and to make a cash award favor of the against the defendant in such sum and amount as the trial court believed the would be entitled to receive were the trusts not involved in the case. ap- plaintiff’s
The determination of this court on the appeal. peal dispositive of defendant’s ' Judgment By No and order affirmed. Court.— taxed in court. are this costs opinion This Robert W. J. Hansen, (concurring). action of the trial court written to underscore that making provision protection present for the future rights minor children involved. of the assignment original judgment provided for clerk of circuit court for Dane of certain trusts county. judgment provision, The amended adds including purposes the assurance that court-ordered child enjoining support payments made, the defendant will be “alienating, selling, transferring, hypothecating, as- from encumbering signing, pledging, surrender, or otherwise adding disposing” trusts, . nor of such “. . shall the de- rights prejudice of . . . the fendant otherwise act to parties provi- minor children of the benefits provided by for them this court.” sions provide action affirmative the court to
Such well-being of minor children the future affected continuity more than of child divorce does insure the payments. provides support an assurance that emer- surgical gency medical, needs in the area of dental and possibility can be met in the future. It care lessens obligations marriage improvidence or successor will *8 deprive opportunity these children of the to continue beyond high equal importance their education Of school. sequestering present the fact such to assets recognizes protect the children in the that under future Family a division of in a the Wisconsin Code estate must fair children divorce action well to as as contending spouses. In the children “. . Wisconsin . are not to be buffeted controversy, in a around mere chattels divorce but 246 rather are be treated as interested affected 1
parties. ...” they parties” are
Since
“interested and affected
their
rights are to be considered in the division of the estate
spouses
custody
as well
inas
the determination of
arrangements
privileges.
question
and visitation
proposed
present
must be asked: Does the
division of
parties adequately protect
rights
assets
uninterrupted
necessary
their
support,
children to
child
expenses
opportunity
medical
and an
educa-
continue
college
tion at the
level? If there is doubt as to whether
rights
being
protected,
of the children are
so
guardian
appoint
repre-
court should
ad litem to
providing
legal
sent the children in the action.
Such
representation
rights
protect
to determine and
children
authorized,2
in divorce actions has been
recom-
3
mended,3 suggested,4
spe-
and directed
enough
cific
suggest
given
situations.
that,
here to
1
(1965),
v.
Wendland Wendland
2d
138
29 Wis.
N. W.
2d 185.
2
boy
“.
hearing
. . to confer with the
inwell
advance of the
at
testimony
may
which his
is to be taken . . .” and “. . .
make such
investigation
further
as he deems advisable after such conference.”
(1955),
Edwards v.
48, 56b,
Edwards
270 Wis.
70 W. 2d
N.
22,
Ebert Inc., Respondent.
Howell, April Argued March 1969. Decided No. 192. 169.) (Also reported in 166 N. W.