Opinion
June 9, 1948. —
July 1, 1948.
APPEAL from an order of the municipal court of Kenosha county: EDWARD J. RUETZ, Judge. Reversed.
For the appellant there was a brief by George W. Taylor, attorney, and Matt Taylor of counsel, both of Kenosha, and oral argument by Matt Taylor.
For the respondent the cause was submitted on the brief of Vaudreuil Vaudreuil of Kenosha.
The order of November 8, 1947, from which plaintiff appeals, modified a judgment of divorce in so far as it provided for support money and alimony.
Pursuant to stipulation the original judgment in 1936 provided for payment by the defendant to the plaintiff of the sum of $75 per month for alimony and $30 per month for support of the infant child of the parties.
On January 8, 1947, the defendant caused to be served upon the plaintiff an order to show cause why the judgment should not be amended to discontinue alimony payments. The affidavit supporting the order stated "that this defendant feels that he has fully discharged his obligations to the plaintiff by paying the alimony for a period of ten years and that there is no further necessity for paying such alimony."
Upon the hearing in January the evidence disclosed that the plaintiff was employed and earned about $110 per month; that at the time the divorce was entered defendant had no estate, but was earning $200 per month; that in 1944 he had remarried, and that there are no children of the second marriage; that his present wife is employed teaching school; that defendant owns his home; and that he has acquired a twenty-eight and one-eighth per cent interest in the Baldwin. Coal Company, and in 1946 drew about $800 as a bonus.
The trial court thereupon entered a temporary order, effective to April 1, 1947, reducing alimony to $30 per month and increasing the support-money payments to $60 per month.
At a hearing in May, plaintiff testified that she had been ill and hospitalized in February and remained unable to work from February 15th to May 19th. She expressed doubt as to the extent to which she would be able to work in the future. Decision was deferred pending filing of memoranda by counsel.
In June plaintiff instituted contempt proceedings against defendant for failure to pay alimony and support money, and called the court's attention to his failure to furnish a brief as required by the court in May. On August 12, 1947, the court rendered its decision:
"It is the law that alimony is subject to such reduction or change as may later appear to be just in view of the changed circumstances of the parties.
"There is in this case a change in the circumstances of the parties. The defendant's income has not increased in proportion to the cost of living, and the minor child of the parties is now old enough so that she does not require the full-time attention of the plaintiff, and the plaintiff is, and has been for some time, employed. These facts, it seems to me, justify a termination of the alimony, but since the child has reached the age where the cost of supporting her has increased severalfold, it is the order of the court that the defendant pay the sum of $12 weekly for the support of said child."
On November 8, 1947, the court entered an order which recited appearances; the fact that for some time plaintiff had been employed; that it appeared to the court that $12 per week is a reasonable sum for support of the minor child; and continued:
"Now, therefore, it is ordered, that the judgment heretofore entered in the above-entitled action be, and is hereby modified so that commencing on the first day of September, 1947, the said defendant is relieved from the payment of any further alimony to the plaintiff.
"It is further ordered, that commencing on the first day of September, 1947, that the judgment heretofore entered be modified and amended so that when amended it shall require the defendant to pay to the clerk of the municipal court of Kenosha county, Wisconsin, the sum of twelve (12) dollars per week for the support of the minor child of the parties."
From that order the plaintiff appeals.
The principles of law upon this subject are thoroughly discussed in Littig v. Littig (1938), 229 Wis. 430, 437, 282 N.W. 547, where the court said:
"Ordinarily, the amount to be allowed for the support and maintenance of a divorced wife will not be disturbed unless manifestly unjust. Hooper v. Hooper, 102 Wis. 598, 78 N.W. 753; Newton v. Newton, 145 Wis. 261, 130 N.W. 105; Gauger v. Gauger, 157 Wis. 630, 147 N.W. 1075; Goerner v. Goerner, 182 Wis. 18, 195 N.W. 879; Voegeli v. Voegeli, 204 Wis. 363, 236 N.W. 123; Luedke v. Luedke, 215 Wis. 303, 254 N.W. 525. But this court may on appeal from such orders always determine whether such orders amount to an abuse of discretion or result in manifest injustice." See also Hahn v. Hahn (1947), 250 Wis. 397, 27 N.W.2d 359.
Application of those principles to the facts disclosed by the record in this case indicates clearly an abuse of discretion by the trial court.
While the record does not show the value of the defendant's interest in the Baldwin Coal Company, it is fair to assume that it must have some substantial worth, and to that extent his estate has been improved since the divorce.
The income of the plaintiff from earnings, and alimony and support payments from the defendant under the original judgment, was approximately $219 per month; and that is all she had with which to care for herself and the child.
The defendant still has his salary of $200 per month, plus a bonus of $756 in 1946, and profits of $166 for the year 1945. Respondent points out that the record is silent with respect to 1947, and that, therefore, this court must assume his earnings for 1947 to be $2,400. We do not believe that this follows in the absence of proof. The year 1946 was his best income year, and it must have been such because of his interest in the coal company by which he is employed. It is fair to presume that it is a going concern making profits, and defendant is entitled to substantially one fourth of those profits over and above his salary.
While, as the trial court points out, increased cost of living may add to the burdens of the defendant, it likewise has increased for the plaintiff.
In Thomas v. Thomas (1876), 41 Wis. 229, 233, it was said:
"The primary duty to support both mother and child remains with the defendant, notwithstanding the divorce." See Littig v. Littig, supra.
The courts cannot relieve a husband of his legal obligation simply because he may find the discharge of such obligation burdensome.
The plaintiff further contends that the trial court abused its discretion in denying her an adequate allowance with which to pay her attorneys. The motion to modify the judgment was made by the defendant. The plaintiff had the right to engage counsel to oppose that motion. Upon the return of the record to the trial court, the defendant should be ordered to pay to the plaintiff or her attorneys an amount deemed reasonable by the trial court for the services rendered. Littig v. Littig, supra; Blake v. Blake (1887), 70 Wis. 238, 35 N.W. 551.
In view of the foregoing, the Court is of the opinion that the order appealed from should be vacated without specific directions for an order in substitution therefor, which re-establishes the provisions of the original judgment.
By the Court. — Order reversed, and cause remanded with directions to vacate the order appealed from. Plaintiff to have her costs in this court.