*1 petition granted where not be .case, mandamus will right. legal completely naked has shown a trial court considered Appellants’ contention ruling making not relevant since improper facts its alleged in whether facts this case is issue support the stipulation are petition sufficient they are conclude mandamus. of a writ of We issuance trial court. the order of the not and affirm By affirmed. Court. —Order Wright, Appellant, Wright, C.
Respondent. Supreme Court September 11, Argued 1979.— No. 77-686. 6, 1979. November Decided 894.) reported (Also in 284 N.W.2d *2 appellants For the by there were briefs Robert E. Cook and & Franke, attorneys, Cook S.C., Godfrey argument & Kahn, S.C., by counsel, and oral Robert E. Cook Kahn, and Gerald J. all Milwaukee. respondent
For the by there were Bruce briefs C. Fox, O’Neill and Carpenter, Shannon, O’Neill S.C., & Milwaukee, argument by and oral Bruce C. O’Neill. DAY, by J. This petition case to the comes to review a decision appeals reversing of the court of by portion amended of a divorce appeals the cir-
circuit court. The court held that year authority ten old cuit court had no to amend a former provide divorce representing $102,840 to the former wife of husband from her on of federal due the amount taxes monthly installments $228,000 paid her him year period in accordance with one-half over ten and Appeals The Court of the divorce the terms argument pay- rejected additional the wife’s such 247.32, Stats. 1967 ment was either under sec. judgment under sec. an enforcement of the theory 247.01, Stats. 1977 on the by income taxes. be undiminished Wright were married and Jean C. action a divorce in 1948. 1967 he commenced *3 4, 1967, the- matter counterclaim. On October she filed a Foley, Jr., hearing L. came on for before Honorable J. complaint Judge. parties stipulated that his The Circuit granted her a divorce on withdrawn and that she be be Testimony taken and a default. was counterclaim as granted parties entered divorce to her. The also was providing stipulation open court into an oral property, personal maintenance of real and the division custody pay- investments, children, of of insurance attorney The ment fees and other matters. combined of hearing parties at the time of the had assets separate $269,018 $1,065,122 was the value of of which Wright pur- property to her and was awarded Jean stipulation. suant to the through part stipulation of the record
The made asking process questions of the to determine agreed they provisions. understood its whether Questions Wright by first to Jean her were directed questions relating Among were those counsel. alimony property follows: division as “Question: you denied, understand That be that? (by Wright) . “Answer: . (sic) Jean Yes. . “Question: you will That the defendant years a half $228,000.00 the next ten and within following on terms: no less ten six months $2,000.00 per than month for the next six after months entry per $1,800.00 month the sum of payment balance of the term of of that $228,000.00, you do understand that? (by Wright) Yes, “Answer: sir.” stipulation provided payment $228,000 The by would be an secured escrow account funded with unpaid If died, stock. Mr. balance of the $228,000 paid would either from his estate or from the escrow The account.
addition to other awarded her. Wright’s attorney questioned then him and
asked: “Question: you fully provi- You feel understand the
sions thereof? (by Wright) “Answer: “Question: . Mr. . . Yes. complete Full and division estate in lieu alimony upon you Wright? claim Mrs. (by Wright) “Answer: Mr. Yes.” objection given
No was made to the answers either regarding party understanding stipulation. their stipulation No statement respecting was made payment of taxes. granted on the record a divorce to Jean *4 complaint and dismissed the Wright, of William
granted custody of the children in accordance with the stipulation and “In respects stated all sipulation other the parties the acceptable. of is The court will make it a part record, findings of the the fact, of conclusions of holding judgment, open law that matter as it relates guardian ad litem fee.” parties appeared De- The next before the court on wording 8, 1967, dispute in a cember over the findings judgment, par- fact, of of law and conclusions ticularly respect $228,000 payment with to the to Jean Wright. argued Both counsel to which of the as responsible for month- would be the income on the taxes ly payments.1 1 (Counsel Wright) for Jean right, transcript speak “Mr. Loeb: All then. for itself will strenuously transcript object I would modifications of the findings stipulation or the or the at this time. Loeb, in, “The is Court: I don’t think what we are involved Mr. anything you agree a modification of the Court and I with findings modifying, question wording would not is the fact, conclusions of law There are substantial problems wording.
financial involved in the Exactly. “Mr. Loeb: “The Court: The must word that in accordance with Court findings made or conclusions was of fact and law forbid that were made at the I would never time of the trial. they person argument properly prepare or foreclose an rights intended to make in an issue substantial that has involved parties. . . . “Mr. Loeb: I want at this time so there to make this record clear is no on behalf doubt about this is considered whatsoever. It periodic payment concerned the defendant far is that as as this period. years alimony, for ten and a half not taxable to her (Counsel Wright) far as “Mrs. Shellow: We like the record to show as would plaintiff stipulation into is concerned that the which was entered period years period of the ten and a half as a the selection in this time for the to be made of the division having $228,000.00 spe- purposes sum, matter was for this cifically plaintiff mentioned, un- deductible to the and it was this derstanding which was had between counsel which enabled the being. stipulation purpose into of the selection to come establishing years purposes period to ten and a half deductibility payments. of such reply reply My that, I make a to that Loeb: do want to “Mr. time ten a half is that at the because fact each of in this Courtroom when our at the two tables mentioned *5 proposed para- that Counsel for William relating “alimony graph to the that be and $228,000 read hereby alimony and lieu of and in full is denied said therefor, complete satisfaction and of claim complete of estate and to the division of the division property parties, plaintiff pay shall to the years entry $228,000.00 defendant the sum of 10% j udgment, paid $2,000.00 said sum to be at the rate period $1,800.00 each month for months and six period years.” each month thereafter for a of 10 judge rejected The trial proposed find- husband’s ings adopted of fact and law and conclusions of instead provided those which submitted the wife counsel part: “Twenty-second. hereby alimony That be denied. « “Twenty-fourth. complete for a That as and division complete estate and to of to the division of plaintiff parties, hereby pay he shall defendant $228,000.00 sum and one-half within ten (10%) judgment; payable of this date following on $2,000.00 per No terms: less than month paid plaintiff be months; to the defendant for the first six plaintiff pay thereafter shall to the month defendant $1,800.00 no less per than the sum of present, very clients specifically I made it we clear report would not consider alimony, this as it as it estate, period. in truth fact and in a division of right. “The Court: All alimony. “Mrs. Shellow: In lieu of “Mr. Loeb: if Even it were in lieu or otherwise. only “Mrs. Shellow: contention, Our Loeb, Mr. is that this is alimony. division of estate in lieu of you so, you “Mr. now, you Loeb: If do we warn if take off as you alimony, proceed your peril. at own “Mrs. you Shellow: You fail to tax on it that’s between your client, Mr. Loeb.” *6 payment $228,000.00 of
for the balance of the term of specified herein.” Findings signed and of of fact conclusions law were by January The was the court on 1968. signed 2,1968. February and filed on party position should
Each the that other took the monthly consequences the bear the income tax federal Wright. Wright payments deducted Jean to Wright payments the return on his income tax and Jean payments to failed to made her as income. include position payments a division She took were income support than under rather federal de- tax law. The Internal Service assessed Revenue against parties. ficiencies both litigated The Tax which matter was Court2 grew his payments her ruled that made to out obligation support payments marital treated the purposes. The income to her federal appealed matter Court was then to Seventh Circuit Appeals3 payments were which determined periodic payments under of the Internal Revenue §71 Wright in the includable as income to Jean Code4 Wright year under received and deductible William of the Internal The and one- Revenue Code.5 ten §215 year payment period half a factor the decision federal courts.6 2 Wright Commissioner, 62 v. T.C. 377 3 Wright Revenue, v. Internal 593 Commissioner 543 F.2d Of (7th Cir., 1976). 4 §71. (I.R.C. 1954) 26 U.S.C.A. §215. (I.R.C. 1954) 26 U.S.C.A. Appeals noted, parties intend The “Had Federal Court payments (1) 71(e) rath ed these to installment Section easily periodic they 71(a), could er than under Section principal paid provided $228,000.00 must be sum of have Wright years.” Internal within ten Commissioner Revenue. Of 1976). (7th Cir. 543 F.2d resulting Wright to increase taxes Jean computed $102,840. to be Wright try
Jean returned the state court recoup from her former husband for the tax family assessment. The court commissioner who re- petition modify viewed her the divorce held power 247.32, that he lacked do so virtue sec. Stats.,7 during petition. dismissed her This occurred 1977, approximately ten after the divorce was granted. sought family de then novo review of the requested
court commissioner’s determination. She provide be modified to in an *7 pay amount sufficient to the additional or that her taxes husband be on theory former ordered to give $228,000. meant to her tax free obligation enforcing merely and that the court judgment provision.8 relying primarily interpretation
The circuit court
on its
Rotter,
56,
Rotter
80 Wis.2d
pay which (Jean Wright) $102,840.00, forthwith the sum of sum, court, intent this shall not be 7 (See 10), footnote 8 “247.01. Jurisdiction. jurisdiction The circuit courts have affecting marriage all actions (or and of all s. 52.10 actions under jurisdiction concurrent where other courts are with like vested jurisdiction), authority things and have to do all acts and neces sary proper carry in such actions their orders and judgments prescribed chapter. into execution as in this All such shall actions be commenced and conducted and the orders judgments according respect therein enforced these statutes court, applicable, provided to actions in except circuit as as far chapter in this and in s. 52.10.” Wright) (Jean in the
includable income of purposes (William tax nor from the income deductible purposes.” Wright) for income signed on The the clerk amended 3,1978. March appeals the trial
The held that Wisconsin court judg- authority court was without to enter the order appealed provisions of from, ment under either 247.01, Stats., 247.32, sec. or under sec. and reversed. matter now before us on review. principle questions There are two on review: authority 1. sec. Did circuit court have 247.01, additional Stats. to order of an merely $102,840 theory to Jean under the it was enforcing original judgment? divorce authority. conclude that it did
We not have such authority 2. Did the circuit court have under sec. 247.32, modify judg- 1967, to divorce Stats. provide alimony? ment to for additional conclude answer is We no.
1. DID THE CIRCUIT COURT HAVE AUTHORITY UNDER SEC. STATS. TO ORDER 24-7.01 AN
PAYMENT OF ADDITIONAL TO JEAN UNDER THE WRIGHT THEORY IT MERELY WAS THE ENFORCING ORIGINAL DIVORCE JUDGMENT? *8 supra, the of Rotter v. Rotter, case relied on the court, trial comply the had husband failed to with ex- language plicit judgment of the divorce in which he cooperate ordered to the conversion of health coverage insurance for his ex-wife. He assured her that he would do As a so. result of her on reliance promise the court order and his she incurred sub- stantial medical bills. The husband had allowed the
255 policy lapse. of insurance to The circuit ordered court the husband to the medical and this court bills authority upheld 247.01, its This court see. Stats. pointed out that that statute vests in trial the courts authority things necessary proper the do all carry judgments their orders and into execution. This give necessary court held that order was effect judgment protect to the divorce from the wife loss occasioned inaction the husband. The pointed authority pro out that without such judgment visions of the would have no effect. been of apparent But it present presents is case an en tirely set different of circumstances con than those fronting this court in Rotter. William has complied with He has made years totalling $228,000. over ten and one-half judgment complied judgment The has been with. A is entry. Callaghan’s, to be construed of the time of its Pleading Practice, (1978). And Wisconsin sec. 87.49 Judgments are to be construed manner same as other written Vaccaro, Vaccaro instruments. v. 67 477, 482, judgment 62 Wis.2d 227 N.W.2d A open is clear on its face is to construction if it ambiguous, but is construction allowed and the record, including pleadings, court will consider whole findings law, of fact and conclusion of and the Lally See, Lally, 56, itself. 152 Wis. 651 N.W. Boyd, (1913); Estate (1963). But the entered in 1967 is not ambiguous judgment provided as to its terms. The years. over ten and one-half adopted findings trial court the wife’s of facts and of law and the conclusions based thereon. wife did contend at Counsel the December hearing findings 8, 1967 submitted her adopted the trial court which would have the behalf *9 excluding legal from her effect of Wright. The United barring deduction for Circuit, as Appeals the Seventh States Court time of disagreed. at the above, trial court The cited in- findings no reference made and conclusions argues that liability. for the wife tax Counsel come presumed have meant court must be trial Wetzel, in Wetzel v. have to should not because wife (1967), this 110, 150 N.W.2d 35 Wis.2d said: in property or making think in a division of “We
granting given of both, should be alimony, or that consideration Disregarding effect consequences. tax to the unjust result. in an unrealistic taxes result adopt aas court must do not hold that trial We produces the least amount solution a method which arriving wife, tax for the or for the but husband the divorce at a side of determination the business impact permeates the tax which a consideration process. whole . . .” However, duty judge placed in Wetzel on the involved a the division contested divorce which division, property, form of both as to the amount and the by us, was made the trial court. the case before form, division, made both as to amount and findings parties by stipulation open court. fact and in the form submitted conclusions of law were Wright’s request and the court at her counsel findings adopted those conclusions. entering stipulation
Counsel when into a divorce has duty consequences consider his client. obliged to The trial court is consider income tax conse- supra. quences property stipulation. Wetzel, in a Failure consequences may of a trial court to consider tax con- appeal But time for an abuse of discretion. from stitute *10 long a expired for abuse of discretion has since in this case. The record here the trial court shows aware that taxes were a factor to be considered. (1) 71(a)
Secs.
and 215 of the Internal Revenue Code
adopted
were
clarify
1942 in
order
the treatment
property
support payments
divisions and
as a conse-
quence of
M. Chirelstein,
divorce.
Federal Income Taxa-
tion,
(1977).
any
§9.03
was silent as to
consequences.9
intended
The definition
property
under
law
division
is not
state
provisions
periodic
the same or
co-extensive
for
with
and installment
under the Internal Revenue
Seiler,
Code.
Seiler v.
48
180
sought
property
the wife
relief
a
(1970),
from
periodic payments
division which would constitute
though
sec.
Internal Revenue Code. Even
it was
a
law,
division under
and so
Wisconsin
referred
opinion,
periodic payment
this court’s
also a
Code,
under the Internal
Revenue
includable
the wife’s
purposes.
income for
income tax
federal
ambiguity
If
stipulation
there
no
is
on
face
judgment,
subjective
intent of
parties
is ir-
relevant.
a
“Because
is to be construed like
instrument,
subjective
other
. .
resort
to the
.
in-
Vaccaro,
is
tent
irrelevant.” Vaccaro
supra,
483;
Miller,
435, 441-442,
at
Miller v.
67 Wis.2d
(1975).
Because husband in us the case before had complied Stats., judgment, 247.01, with the sec. did apply. 9 “Generally speaking, payments continuing more than 10 separation agreement from the date of the divorce decree or periodic though lump payments, are considered even a sum total specified.” Graetz, Taxation, p. & Federal Income E. Griswold M. AUTHORITY HAVE DID THE CIRCUIT COURT
II. 1967, TO MODI- 24.7.32, STATS. UNDER SEC. PRO- TO FY THE ORIGINAL JUDGMENT ALIMONY? ADDITIONAL FOR VIDE on entered December In a memorandum decision judg 1977, the circuit court concluded that alimony and thus provide did certain items of ment requir provision items were: were modifiable. These Wright’s ing portion medical of Jean William Wright to main expenses; provision requiring William Wright policy life with Jean tain a life insurance on his beneficiary, provision that and a as the *11 Wright. expenses Jean investment certain incurred remarriage of death or All to terminate on the were the Wright. argues payments in these were Jean She leaving judgment alimony thereby the divorce nature of 247.82.10 open provisions of to revision under the sec. 1 0 provide a that 247.32, Stats., amended in 1972 to was Sec. alimony only grants alimony judgment or which fails to allow for may ali the as to for a limited time not thereafter be modified only mony award, provided be effective would but also that it granted judgments date of the after the effective for rendered or 1971; Chapter Act, April 12, §12, 220, effective Laws of 1972. original judgment this case April 12, of divorce the 1972. Since granted apply. Moore v. limitation does not was 1968 this Moore, provides: 247.32, Sec. Stats. providing Revision of After “247.32. children, alimony either for wife and or other allowance the them, court appointment the of trustees as aforesaid of or for the petition the may, time, of either of from time to on the commissioner, family upon and alter revise notice to court alimony judgment respecting or allow- of such amount such appropria- respecting thereof, payment ance and also and the property principal so payment of the tion of respecting any judgment trust, make held original might made in court have said matters which such have been of the shall a final But when division action. provisions thereafter made be other shall 247.26 no made under s. for the wife.”
Thus, argues that the circuit she court’s award $102,840 alimony. argued could made It also alimony on her behalf that the is or should definition periodic payment be the same as §71 Internal Revenue Code.
However, amending the order and the amended that asks counsel Jean uphold says this court specifically the ordered payment $102,840 alimony. is not appeals deciding,
The court of assumed without policy payment maintenance of a life and the insurance Wright, expenses by of medical and investment remarriage upon which were to terminate death or Wright, alimony.” Jean were “in the nature might though further have found that even these items modifiable, alimony, been thus of estate and defi- fixed amount for the division finding Implicit nition in this is that the non-modifiable. allowed, if limited to alimony, modification of would be scope award, is, medical, life in- expenses. surance and investment if it that the ordered Even to be assumed during Wright’s or until remar- to be made lifetime gen- riage alimony” it is are the nature clear “in given. support eral for the of the wife was *12 specific purposes for and under payments were These judgment, the circuit court did not re- the terms of the compensate jurisdiction an award to for tain make may income taxes. Jurisdiction loss incurred specific of limited to those items retained have been was insurance, expenses. expenses medical and investment life Wright’s of attention to case counsel calls our (1957), Burg Burg, 419, 85 356 where v. 1 N.W.2d Wis.2d alimony held to be sufficient amount of was a nominal However, general alimony. the nom- of a award later Burg express alimony made of inal award alimony retaining jurisdiction if so that purpose over 260 It in the future. need an could be made arose award being designed en- prevent a the wife from device receiving
tirely alimony. foreclosed from 65-66, v. 54, 123 Kronforst, Wis.2d 21 Kronforst (1963), said: N.W.2d 528 this Court that, judgment mod- question if the is is no “There but county jurisdiction alimony, ified over so to retain as fu- alimony jurisdiction in the court will have to award change a,n showing plaintiff upon adequate ture though alimony presently no award- circumstances even is pointed trial However, a ed. . . out that should jurisdiction ali- court mony to award should not reserve such doing. stating . . Such without its reasons for so decision, reasons be stated in the memorandum findings fact, The trial court the can or the . . alimony effectively in in jurisdictions retain to award alimony awarding the future in the meantime without amount, per a as was month, nominal such one dollar Hansen, Hansen v. done in 434 356 N.W.2d Wis. Burg (1951), (1957).” Burg, original in the case at bar entered general jurisdiction 1968 did ali- not reserve to make supra. required by Kronforst, mony Para- award as is graph twenty-second states that negatives part certainly denied and an intent on the general power the court award to reserve the to make in the future.
Thus, to the medi- insurance, extent that the award alimony, any expenses cal investment constituted con- modification of the should be specific items. If it held other- strained to those were wise, specific very provision limited for the spouse expenses of a could later of one become basis larger general alimony have the much award. This would limiting flexibility effect devising judgment provisions. court in the settlement
261 impossible It would agreement spouse to obtain the of a pick expenses up such as these if was that known gross modification occur Thus, could at later a date. original judgment in this case demonstrates that trial positions considered the relative against general decided jurisdiction a reservation of for a alimony award. The in error if judgment, there was one, is appeal not reviewable here since time long expired. has since v. An Anderson derson, 8 (1959) ; also, see N.W.2d 434 Steinkopf Steinkopf, Wis. N.W. the extent jurisdic To that the circuit court had modify alimony tion to insurance, awarded for the expenses, medical and investment it was limited those general alimony items and could not award ground. on this Wright argues
Counsel for Jean if the installment payments are they taxable the federal law then alimony argument are also under Wisconsin law. This periodic equate payments would under the Internal Reve- Although nue Code with under state law. §71 applications overlap many definitions and in cases, they clearly purposes are not for all co-extensive all events. The Internal Revenue Code addresses periodic itself payments.11 is not installment It 11 “SEC. AND 71. ALIMONY SEPARATE MAINTENANCE 71(a)] (a) (1) DE PAYMENTS. [Sec. GENERAL RULE — CREE OF a DIVORCE OR SEPARATE MAINTENANCE —if legally separated or wife is from her de divorced husband under separate gross maintenance, cree of divorce or of the wife’s periodic regular (whether includes or made at inter vals) discharge (or after attributable received such decree discharge otherwise, of) transferred, in trust or legal family obligation relationship, which because of marital imposed by the or un on or incurred husband under the decree separation. der written instrument incident to such divorce or *14 placed payments determina-
the labels on the which are is the tive under the federal law. It structure the characterization. payments of the which control effect As has been stated: “ with the number of cases deal distinction between [a] property approaching the settlements.
issue, always adopted the have not the courts [federal] given payments the the or characterization of alia, court, inter the the state have considered nature but negotiations parties, whether such of the payments the between they lump in addition sum, in are are whether support payments specified to in a other or maintenance agreement and the decree or any whether wife has released rights prior property interest her in or other held Consequences the Jr., to L. Tax divorce.” Thomas Of 71(c) “SEC. PRINCIPAL PAID IN INSTALLMENTS SUM — (1) (a), purposes in- GENERAL RULE —For of subsection prin- payments obligation discharging part stallment an cipal spec- money property, is, sum of either in terms or which decree, agreement instrument, treated ified not be or shall periodic payments. as “(2) WHERE PERIOD THAN FOR PAYMENT IS MORE If, by decree, instrument, agreement, or terms YEARS — principal (1) paid paragraph be or sum referred is to paid ending period over a than 10 the date more from para- agreement decree, instrument, (notwithstanding then such periodic graph payments (1)) the installment shall be treated any payments purposes (a), (in case of of subsection but year wife) only percent one taxable of the extent of purposes preceding sentence, principal For sum. period part principal after allocable sum which is year wife in which it is shall be treated as taxable received year it is re- taxable in which installment an ceived.” 71(d) FOR IN OF TRANS- HUSBAND CASE “SEC. RULE gross does not in- husband’s
FERRED PROPERTY —The (1) which, (a), are in- under subsection amounts received clude wife, (2) gross attributable to income of the in the cludible property.” transferred Separation
Marriage, And Divorce. ALI-ABA. Commit- Continuing- Legal On Education, tee pp. 118-119 Under the terms of the case, divorce in this required his ex-wife payments installments. The were not to on end her remarriage paid death or and the full amount was to be even if had died he before all had been made. called a division estate and division property. Under Wisconsin law this di- *15 subject vision and as such it to is modification under our circuit authority statutes. The lacked under original 247.32, Stats., modify judgment. sec. By by appeals the Court. —The decision the court of is affirmed. J.,
Coffey, part. took no (dissenting). major CALLOW, WILLIAM G. J. ity “the states was silent as to intended consequences.” Simultaneously, majority income tax recognizes obliged that trial courts are to consider income consequences property in a stipulation, Wetzel v. Wet zel, 103, 110, (1967), 35 Wis.2d 482 150 N.W.2d that trial court in this case was aware income tax con played significant role; yet majority a siderations judgment unambiguously concludes that the allocates liability payments the income tax for the agree, made I to Jean. cannot and would find ambiguous consequences to the tax as Wright. payments Accordingly, to Jean I re would mand case to the circuit court for this a determination of the intent of the
Judgments are to be construed in the
manner
same
as
instruments,
other written
Vaccaro v. Vaccaro, 67 Wis.2d
482,
(1975),
477,
227
62
and are to
be construed
entry.
184,
as of the time of
Childs v.
160
Dahlke,
Wis.
reasonably
fairly suscep
192, 151
(1915). If
or
N.W.
constructions,
instrument
is
tible
a written
to different
ambiguous.
427, 432,
Co.,
Lemke
Larsen
35 Wis.2d
Section payments to the provides periodic are income they ex-wife if are received after a decree of divorce which, discharge “legal obligation of the husband’s imposed family relationship, or because the marital on or under the decree or incurred the husband separa- or divorce written instrument incident such “contemplates made in tion.” This section obligation pursuance support and not husband’s rights former satisfaction some (7th spouse.” C.I.R., 418 F.2d Van Orman v. 1969). Cir. 71(c) Internal Revenue Code
Under Section obligation discharging an installment specified are not to principal decree be sum meaning “periodic payments” within the treated prin- provides 71(a) the decree unless Section period paid cipal paid over a to be sum “is decree,” ending date of such more than 10 from the *16 “periodic a the amount received constitutes in which case (c) meaning (2) “to the payment” with the of Section 71 percent principal sum.” extent of 10 of the in Therefore, the to under Section 71 be includable pay- wife, gross principal the sum must be income period in over a excess ten in installments able obligation discharge of an of maintenance be in and must imposed of the mari- the decree of divorce because gross relationship. If includable tal wife, payments be deducted the husband. IRC 215v Section regard judgment to
Admittedly, is silent with its equated consequences. silence cannot with But be unambiguity, especially where we have stated “it seems proper presume more to the trial court followed hold- ing of v. Wetzel Wetzel than that it did Seiler not.” v. Seiler, 48 400, (1970). analysis ambiguity Fears this allows to be found particular point whenever an instrument is silent on a are exaggerated, we support can find in the record point here, at consequences, issue the income tax stipulation open considered the statement of the court. my judgment view, fairly susceptible to dif- Although
ferent constructions. installment executing “property settlement” were to made over greater period than years, ten the trial court took the specific step denying alimony. divorce, The decree of face, imposes obligation at least on its no of maintenance. Wright Here Jean personal had a sufficient to estate ac- commodate recognized her support, and the court this in approving portion stipulation provided which alimony. there would be no Because the had been years, married nineteen Jean portion was entitled of their $228,000. accumulated estate in the sum I do not think it unreasonable view the intend- as ing Wright that Jean receive as a division of property, liability. free of entirely income tax Nor is unreasonable contemplating view di- vision parties’ on the respective basis of the property ownership divorce, plus payments at the time of for Jean’s period maintenance to be made ten over years. and one-half As noted the United States Court Appeals, Wright this is “a close difficult case.” Rev., Com’r Int. 543 F.2d ambiguity judg- I Because would find in ment, I appeals would reverse the decision of the court of remand the case the circuit normally court. While favoring the circuit court’s later *17 “great weight if should not disturbed and clear against the circuit is preponderance evidence not Rotter, conclusion,” Rotter v. hearing did (1977), the circuit court’s original ambiguity and instead address Wright’s position, financial current considered with Childs liability, That inconsistent and health. this case Accordingly, I remand supra. would Dahlke, as to court hear evidence circuit that the with directions intent of Tilg, Per Jacobs, Deceased: of Estate Matter Estate, Appellant, v. Representative of the sonal Department Revenue, Respondent.
Supreme Court Argued October 8, 1979.— No. 77-162. 6, 1979. Decided November 638.) reported (Also in 284 N.W.2d