Opinion
October 13, 1949 —
November 15, 1949.
APPEAL from part of a judgment of the circuit court for Milwaukee county: ROLAND J. STEINLE, Circuit Judge. Affirmed.
Walter Schinz, Jr., of Milwaukee, for the appellant.
Charles C. Erasmus of Milwaukee, for the respondent.
This is an appeal from that part of a judgment of divorce in favor of the plaintiff wife which made a property division and awarded alimony which the defendant considers excessive. The action was begun April 13, 1948, and the decree was entered June 7, 1949. Respecting the matters involved in the appeal, the court found that the parties jointly owned a homestead in Milwaukee, worth at the time of trial $13,500, household goods worth $500, and an automobile worth $350. Each party had life insurance of $1,000, and the defendant also had a death-benefit policy of $250. They had a joint bank account of $38, and debtors in Germany, who were relatives of the wife, owed them $2,400 with interest, the value of which debt could not be determined. The defendant is a mechanic, earning approximately $69 per week after social-security and income-tax deductions. The plaintiff has not worked outside the home recently but in earlier years she did so and contributed about $6,000 to the family funds, all of which has since been spent or absorbed. It was in evidence that the wife is fifty-four and the husband fifty-six years of age.
The judgment gave to the husband the real estate, two thirds of the German loan, his own life insurance and death benefit, and the $38 bank account. To the wife it gave $6,750 in cash to be paid within one hundred twenty days from March 2, 1949, all the household goods except defendant's bedroom furniture, one third of the German loan, and all her own life insurance. There was evidence that the wife needed surgery and the judgment commanded the husband to contribute the expense of that, not to exceed $500, if the operation for present disabilities should be performed within two years. For the six months succeeding March 2, 1949, the wife was given the right to live in the homestead rent free and heated but must vacate within ten days after she should receive the aforesaid $6,750, and to secure such payment she was given an equitable lien on the home. The husband was further commanded to pay alimony at the rate of $75 per month and plaintiff's costs and fees to her attorney in the sum of $250.
All the findings of fact are sustained by the evidence. Defendant contends that the award is excessive beyond permissible discretion of the trial judge and suggests that if the property division is allowed alimony should be cut to $35 per month, while if the alimony award is sustained the plaintiff should not receive more than $2,500 in cash or property. He is particularly aggrieved by the finding that the homestead is worth $13,500 instead of $10,500 or $11,000, as valued by one of plaintiff's witnesses. He also says that plaintiff is capable of some self-support, and so large a proportion of defendant's earnings at a time when, with reduced earning capacity, he will have to provide new security for his old age, is an injustice to him.
Defendant's counterclaim alleged the value of his home to be $15,000, free and clear of incumbrance, with the upper flat rented for $50 per month. His expert witness appraised it at $13,500. He can hardly complain to this court that the trial court held with him on this issue. The wife's contribution to the family fortunes was found to be substantial on competent evidence, and to divide the value of the homestead equally is not inequitable, particularly since the parties bought it as joint tenants and now own it as tenants in common. The division of the minor items appears to be reasonable and is not very material one way or the other. The property division should not be disturbed.
Concerning alimony, the court allowed the wife $75 per month. Defendant's gross pay is $80 per week, out of which, at present rates, $10.20 is withheld for United States income' tax and 80¢ for social security — take-home pay $69 per week or something more than $276 per month. The court allowed slightly more than twenty-five per cent of this as alimony, leaving more than $200 per month to the defendant.
The awards are high but we do not consider them excessive nor beyond the trial court's discretion considering the respondent's contribution to the estate, the physical condition and earning capacity of the respective parties, and appellant's continuing right to apply to the trial court if the alimony requirements become unduly oppressive. At present we do not consider them so great as to impose undue hardship upon the appellant or to permit the respondent to live in more than reasonable physical and mental comfort.
By the Court. — Judgment affirmed.