Opinion
September 9, 1958 —
October 7, 1958.
APPEAL from an order of the circuit court for Price county: HERBERT A. BUNDE, Circuit Judge of the Seventh circuit, Presiding. Reversed.
For the appellant there was a brief and oral argument by Arthur DeBardeleben of Park Falls.
For the respondent there was a brief by John M. Whitmer of Park Falls, and Clifford L. Curran of Medford, and oral argument by Mr. Whitmer.
APPEAL from an order of the circuit court for Price county: LEWIS J. CHARLES, Circuit Judge. Affirmed.
Application by the plaintiff husband to modify that part of a judgment of divorce relating to alimony and support payments.
On March 7, 1957, the husband commenced an action for absolute divorce against his wife, the defendant herein. The wife answered and counterclaimed for an absolute divorce. Each charged the other with cruel and inhuman treatment. Before the commencement of the trial, but on the trial date, the parties entered into a stipulation, subject to the approval of the court, that custody of the three minor children of the parties be awarded to the wife; for the payment by the husband of $150 per month for the support and maintenance of such minor children; for the payment by the husband of $75 per month alimony to the wife; for the payment by the husband of all debts, with one exception, of either of the parties up to the commencement of the action; for a division of the personal property; and for the payment by the husband of $115 for the wife's attorneys' fees and costs. Each party was represented by counsel. The stipulation was approved by the divorce counsel. The husband then withdrew his complaint and reply to the counterclaim and the wife withdrew her answer to the husband's complaint.
The stipulation was included in the findings of fact and it was held that the stipulation was reasonable. In the conclusions of law the stipulation was approved in its entirety except that the provision for the support and maintenance of the minor children was divided to award $50 for the support and maintenance of each child. On May 3, 1957, the trial court ordered judgment to be entered accordingly. The formal judgment in writing was filed on May 24, 1957, awarding judgment of absolute divorce to the wife.
The application for modification of the judgment was heard by the trial court on October 11, 1957. In his affidavit in support of his motion the plaintiff listed the amount of his income from May 10, 1957, to and including September 10, 1957, together with a statement of the payments made therefrom. He also listed debts of $1,700.97.
It is conceded that plaintiff is employed by the Flambeau Paper Division of the Kansas City Star Company at Park Falls, Wisconsin, as a sawyer. In 1956 plaintiff received more than $4,800 as wages from said employer. In August, 1957, his basic rate of pay for day work was increased from $1.66 per hour to $1.75 per hour and his basic rate of pay for night work was increased from $1.75 per hour to $1.83 1/2 per hour. His contract of employment calls for one and one-half times the base rate for hours worked in any week in excess of forty hours, double the rate for work on Sundays, and triple the rate for hours worked on holidays.
In his affidavit and oral testimony at the hearing plaintiff stated that at the time he signed the stipulation on May 3, 1957, he had anticipated supplementing his wages at the mill by cutting some pulpwood during his off hours; that during the summer of 1957 he earned $7 cutting pulp but hurt his back and was unable to continue the outside work; that he is physically able to perform his duties at the mill but because of the change of shifts at the mill he was unable to get other outside work; that after paying the alimony, support money, and making payments on his debts he had about $15 per week for his own living expenses and that his requirements for living expenses amount to $22.95 per week, which includes nothing for clothing. In reporting his income the plaintiff indicated the gross amount of his earnings less deductions for social security, withholding tax, etc. At the hearing he admitted that among the pay-roll deductions was the sum of $6.25 for each two-week period for the purchase of United States saving bonds; that he sold the bonds as he received them but that the amount thereof was not included in his statement of income. He further stated that the debts had all been incurred at the time he signed the stipulation with the exception of a loan from a bank at Phillips in the sum of $125, of which he used $115 to pay defendant's attorneys' fees. Among the debts he listed $72 as being due on the defendant's attorneys' fees at the time of the hearing and the bank loan of $125, and he admitted that there was some duplication in those two figures. In his list of disbursements he indicated that he had paid approximately $245 on his debts in the period from May 10 to September 10, 1957. There was nothing in the record to indicate how much of that was interest and how much was applied on the principal of the debts.
In opposition to his motion the defendant filed her affidavit showing that it cost her a total of $240.41 per month to live and support the children; that she has been ill and that it has been impossible for her to seek work; that she has been informed by her dentist that all of the teeth of one of the children require extraction and that said child will require dentures immediately to prevent impairment of the child's health. In addition thereto the defendant filed an affidavit executed by the comptroller of the Kansas City Star Company, Flambeau Paper Division, showing that from May 1, 1956, to September 30, 1956, inclusive, the plaintiff earned the sum of $2,068.42 from that company and that during the same period in 1957 the plaintiff's wages were $2,018.09.
The plaintiff further stated that his creditors threatened to garnishee his wages and that the rule at the mill is that if garnishment is instituted the employee will lose his job. There was no showing that any garnishment action had been started and he did not indicate what creditor or creditors had threatened garnishment. Further, there was no testimony by the employer that such was its practice.
The trial court issued an order dated November 29, 1957, reducing the alimony payments to $60 per month and the support money for the minor children to $125 per month. Thereafter counsel for the defendant drafted an order for a hearing at which the plaintiff should show cause why an order should not be made directing and requiring him to pay a reasonable sum of money for counsel fees and disbursements to enable the defendant to prosecute an appeal to the supreme court from the order modifying the judgment.
The affidavits and order were forwarded to the trial judge by mail. In correspondence between the trial court and defendant's counsel the court indicated that it could not conscientiously set a date for further hearing, and that if one were set he would have no option but to deny the motion for appeal costs. Based upon that correspondence the Honorable LEWIS J. CHARLES, circuit judge for Price county, who had disqualified himself from acting in the divorce action, signed an order dated February 14, 1958, denying defendant's motion for allowance of counsel fees and disbursements. The defendant appealed from both orders.
The defendant cites several Wisconsin cases which hold that courts may modify the provisions of a judgment in a divorce action relating to alimony and support money only where there has been a substantial or material change in the circumstances of the parties. Littig v. Littig, 229 Wis. 430, 282 N.W. 547; Baldwin v. Baldwin, 253 Wis. 200, 33 N.W.2d 198; Lerner v. Lerner, 252 Wis. 87, 31 N.W.2d 208; Romanowski v. Romanowski, 245 Wis. 199, 14 N.W.2d 23; Setzer v. Setzer, 251 Wis. 234, 29 N.W.2d 62.
This rule is of almost universal application. 2 Nelson, Divorce and Annulment (2d ed.), ch. 17, p. 393 et seq., sec. 17.01 et seq. It is there stated that in some states the judgment is based upon the situation of the parties at the time of the judgment and is res judicata as to that situation. In the Littig Case, supra, it is indicated that the rule should be strictly applied where the amount to be paid for alimony and support money has been stipulated. In this case, of course, the burden was upon the husband to show a change in his circumstances. In its memorandum decision the trial court stated:
"There appears to be no material change in circumstances upon which a reduction could be made."
The trial court was impressed with the idea that the husband might lose his job if he could not make regular payments to his creditors. That would, of course, be a most-unfortunate result. The husband failed to meet the burden of proof on that point. During the first five months he had managed to make payments each month to his creditors of approximately $49. The manager of the Thorp Finance Corporation at Park Falls was called as a witness. His testimony showed that in the short period between the date of the divorce and the date of the hearing the debt with the company had been reduced from $269.81 to $225.83. He did not indicate that his company planned any drastic steps. There was no showing by the husband that any attempt had been made to secure an extension of time from the creditors.
In this case the husband started the divorce proceedings. For reasons best known to himself he desired a divorce and alleged in his complaint that he had grounds therefor. He was charged with the knowledge at that time that a divorce could not relieve him of his duty to support his wife and his minor children. He was represented by competent attorneys and, so far as the record discloses, freely entered into the stipulation. The stipulation was approved by the divorce counsel and found to be reasonable by the trial court. The application for modification of the judgment was made about five months thereafter. Such applications, if frequently made, consume valuable time of the courts at great expense to the public. That should not be encouraged by modifications merely because the applicant is dissatisfied with his agreement. Upon the showing made the court was not justified in modifying the judgment.
The defendant cites the case of Peck v. Peck, 272 Wis. 466, 76 N.W.2d 316, in support of her contention that the mere fact that the appeal is from a discretionary order is not sufficient to justify the trial court in refusing to allow counsel fees and disbursements for an appeal to the supreme court. In the Peck Case, however, this court affirmed the order of the trial court because of other circumstances appearing from the record. In this case, in view of the financial situation of the husband, he should not in fairness be required to pay the costs on the appeal. He has a heavy burden and in equity he should not have the last straw added to his load. The second order therefore is affirmed.
By the Court. — The order modifying the judgment as to alimony and support money, dated November 29, 1957, is reversed. The order denying the motion of the defendant to require the plaintiff to pay counsel fees and disbursements in the matter of her appeal, dated February 14, 1958, is affirmed. No costs shall be taxed by either party.
MARTIN, C.J., took no part.