118 Wis. 29 | Wis. | 1903
At first view of the judgment in this case we were not certain what kind of a provision the learned court purposed therein requiring respondent to make for appellant; that is, whether alimony was decreed to her, which would be subject, necessarily, to change thereafter if the circumstances of the divorced husband should change (Bassett v. Bassett, 99 Wis. 344, 74 N. W. 780); or whether a portion of respondent’s property was decreed to her upon a final division of his estate between the parties, absolutely ending all relations between’ them of every nature. Gallager v. Gallager, 101 Wis. 202, 77 N. W. 145. Of course, it must be one thing or the other. The statute expressly so provides. Sec. 2364, Stats. 1898. The language thereof is as follows:
“The court may adjudge to the wife such alimony out of the estate of the husband for her support and maintenance . . . as it shall deem just and reasonable, or the court may finally divide and distribute the estate, both real and personal, of the husband and so much of the estate of the wife as shall have been derived from the husband, between the parties, . . . having always due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties and all the circumstances of the case.”
Alimony is given for the nourishment of the wife. Bacon v. Bacon, 43 Wis. 197. The amount thereof is only temporarily fixed by the judgment. It is subject to judicial supervision and revision during the life time of the husband upon the theory that, though the married relations may be in all respects, except duty to support the wife, ended, that duty remains a continuing burden upon the divorced husband so long as the parties both live and the wife remains in need of such
“It is ordered, adjudged and decreed that the said defendant pay to the said plaintiff the sum of $3,900 out of said defendant’s estate as alimony, support and maintenance, and as a full and final division, partition and distribution of said estate.”
That is, appellant was given $3,900 as alimony, using substantially the language of the statute, but it was given at the same time, apparently, to be deemed appellant’s share of respondent’s estate upon a full and final division thereof. The language chosen to express the idea of an award of a portion of respondent’s estate to appellant in lieu of alimony is very inappropriate for the purpose. It indicates want of understanding of the nature of alimony and of the requirements of the statute. However, appellant’s counsel treats the decree
We have carefully considered the evidence in the case and the views of appellant’s counsel in respect thereto, and are unable to come to the’ conclusion that the findings of fact are contrary to the clear preponderance of the evidence. Counsel urge upon us with much earnestness the duty, as he understands it, of examining the evidence and deciding the matters of fact involved as a court of original jurisdiction would do it. This court, of course, on appeal from a judgment in an action tried in the court below without a jury, must review the evidence to see if the findings of fact are supported thereby, if proper exceptions are taken to present such matters for such review; but that does not mean that the evidence must be examined here as a court of original jurisdiction would examine it in coming to the initial conclusions upon which the judgment should rest. That cannot be done from the very nature of things, because of the many aids which the trial court has for discovering the truth, which cannot be preserved upon the written or printed record of the trial. This court, upon proper exceptions in an action, reviews the evidence upon which the findings of fact were made by the trial court, but does so governed by established rules of appellate procedure. It is one of the unbending rules thereof that presumptions are to be indulged in favorable to the correctness of the findings of fact to the extent of precluding disturbance thereof unless the preponderance of the evidence not only appears to be against such findings but decidedly and clearly so. This court does not use judicial scales for the weighing of evidence. They are weighted "down on one side at the start by the probability that the findings of the court involved are right. The preponderance of evidence the other way must necessarily be quite significant in order to incline
Applying the rule mentioned to the record before us, after a careful review thereof, we are constrained to leave the decision of the trial court upon matters of fact undisturbed and to do so without embodying in this opinion any discussion of the evidence in detail. If the case were at all close on this branch of it such a discussion might well be indulged in and perhaps be called for, but we do not find it so. The trial court seems to have carefully considered the evidence and to have reached conclusions well supported at all points.
Assuming the facts upon which the court based the division of the property to be as found, there is little or no room for reasonable complaint that we can discover. Certainly, no ground worthy of serious consideration in face of the plain statute we have quoted, leaving the subject of bow much of the husband’s estate, upon a final division thereof, to award to the wife, to be solved by the trial judge within the broadest range which bis judgment may reasonably take upon the evidence, subject to revision on appeal only in case of clear abuse of judicial power. That is the plain purpose of the statute. The trial court is not governed in such matters by any arbitrary rules other than those found in the statute as the same has been construed by this court. True, there are indications in the decided cases, in a general way, of the boundaries beyond which a trial court may not go; but the safe field in that regard is a very broad one, in harmony with the letter and spirit of the statute, and it would have to be very plainly overstepped to warrant relief therefor here.
It has been said that for temporary relief the wife should be granted one fifth of the husband’s income. Williams v. Williams, 29 Wis. 517. Here we note that such proportion
However, the equivalent of a full third of respondent’s property was given to appellant in conformity to the precedents found in the books and referred to in Varney v. Varney, supra, and other cases. Counsel for appellant does not look at the decision of the court that way, because of an exaggerated notion, in our judgment, of what the evidence shows as regards respondent’s property, and further'because proper regard is not given to the fact that the provision for appellant is in the form of money. Several witnesses testified that the value of the Milwaukee real estate was around $9,000, which counsel seems easily to set aside in favor of witnesses who placed the value at a much higher amount, contrary to the judgment of the trial court. Counsel suggests the existence of $7,200 in money belonging to respondent’s estate, none of which was found by the trial court to exist. We are unable to find in the evidence any satisfactory proof to create even a well-grounded suspicion that there was any such sum of money as $7,200, or any property other than what was found by the trial court. Counsel makes up his amount of $7,2*00 by charging respondent with the various sums of money borrowed through a period of some nine years, and the amount received for certain real estate sold, and crediting him with payments of various accounts and a loss of $2,500. The loss testified to by respondent was from $3,500 to $4,000. No credit is given for interest payments upon loans, which was evidently very large. No credit is given for several payments made by respondent of a large amount and specifically mentioned by him, and others that it appears clearly from his evidence he must have made. Appellant’s attorney charges respondent with borrowed money to the extent of $9,700 and credits him with payments on loans with only $7,000. No credit is given for the balance of
Referring more particularly to the failure of counsel to regard the difference between property in the form of money and property measured by money in making a division of an estate consisting of real estate and merchandise, it must be kept in mind that while property must be measured in handling it and dividing it, if values are considered, in its money equivalent, fixing that upon the basis of the market value as determined from opinion evidence, that method only gives an approximation, and often times not a very close one. Common experience shows that a person may be in theory quite wealthy, looking at his possessions as valued upon opinion evidence, or even in his own judgment, and yet be poor in fact in face of a necessity to use the property presently in the form of money. It has been very plainly indicated by this court that failure to recognize the burden cast upon the husband in dividing his estate in a case like this and awarding a portion thereof to a divorced wife in the form of money, regardless of the difference we have indicated between awarding a money equivalent for real estate and goods and chattels, and awarding part of such property in specie, may well be deemed an abuse of judicial discretion. Why so ? Because it is a matter of common knowledge that the immediate money equivalent of an estate consisting of various kinds of property, especially of lands and merchandise in the form of store goods of any kind, is materially less than the market-value thereof, as that would ordinarily be determined upon
In this case the household goods, to start with, were equally-divided between the parties. That was done by agreement under some compulsion by the court pending the litigation. Exception is taken to that view by appellant’s counsel, but upon reading the evidence we are inclined to think he is wrong. The other property, as specifically valued by the court, aggregates $13,000. Appellant was awarded money to the amount of one-third of such sum less $433.33. What the real money equivalent of respondent’s estate was could not be told very definitely any other way than by actually turning the same into money. We should say that the amount awarded appellant, in all reasonable probability, was at least one third of the immediate money equivalent of the entire estate. In view of that and the fact that she got one half of the household goods, and especially in view of the fact that she got an excessive allowance for support pending the litigation, and all the other circumstances to which we have referred, and others that might be referred to, it seems that there is no reasonable ground to complain of the disposition of the property of respondent by the trial court. The division, under the circumstances, is one that should have been submitted to without further expensive litigation.
Complaint is made because the court limited the amount to be paid by respondent to compensate appellant for her expenses incurred for attorneys in this litigation in addition to the sums theretofore awarded to her for that purpose, to $150. That is the first subject treated in the argument for appellant, indicating that it is considered one of the most important matters upon the appeal. It is suggested that the allowance for attorney’s fees should be measured upon the theory that the award of property is not to be diminished at
The final conclusion reached is that this judgment must be affirmed as one awarding-appellant a portion of respondent’s estate in lieu of alimony, without costs to either party except that respondent must pay the clerk’s fees.
Appeals to this court in cases where the respondent may be required to pay the costs of both parties regardless of whether appellant prevails or not, should not be encouraged by awarding costs regardless of the merits of the appeal. Where there is no question of sufficient doubt to warrant presenting it here, looking at the matter from the standpoint of that sound judgment and fairness which should always be exercised by attorneys in such a situation in determining whether to appeal to this court or not, the respondent, upon prevailing, should not be' required to pay any considerable amount of costs in excess of such sums, at least, as may have been awarded prior to the final conclusion of the case. We do not find sufficient merit in this appeal to move us to look very favorably upon the decision to bring the case here. In that view, and in view of the fact that appellant has already been allowed in this court the sum of $125 as expenses, respondent should not be required to pay further costs other than clerk’s fees.
By the Court'. — The judgment of the circuit court is affirmed as one awarding property to the divorced wife in lieu of alimony, no costs to be allowed to either party except that respondent is to pay the clerk’s fees.