Opinion
January 10, 1963 —
February 5, 1963.
APPEAL from a judgment of the county court of Douglas county: DONALD A. ROCK, Judge. Affirmed.
For the appellant there was a brief and oral argument by Rodney J. Edwards of Superior.
For the respondents there was a brief by Johnson, Fritschler, Barstow Witkin of Superior, for Lyman T. Powell, Jr., Executor, and Bonita V. Rooney; James C. McKay of Superior, guardian ad litem, for Robert E. Rooney, Jr., and Darling Rooney; and Maynard Berglund of Superior, guardian ad litem, for Patricia Lou Rooney, and oral argument by Barney B. Barstow.
Appellant filed a claim of $24,000 against the estate of her ex-husband. The county court, by judgment, denied the claim and the claimant has appealed. The present worth of the claim, if allowed, would be $13,396.80.
Mr. and Mrs. Rooney were married December 25, 1935. They were divorced on Mrs. Rooney's complaint on August 9, 1946. Each party was then about thirty-seven years old and were parents of a daughter about three and one-half years old. Respecting the property owned by the parties, there is only a statement that Mr. Rooney owned one third of a liquor-distributing enterprise and was employed as manager. In joint ownership they had real estate at Lake Nebagamon and at Spider lake in Douglas county, and an automobile. No value was placed on any of these possessions either separately or in total. Mr. Rooney had previously given his wife all the household goods. By the divorce judgment Mrs. Rooney was given custody of the child, Patricia. The judgment ordered Mr. Rooney to pay $75 a month for Patricia's support and maintenance, together with any medical, surgical, and hospital bills or medical services that might be required until she reached her majority, subject to order of the court. The parties also entered into a stipulation which was then incorporated in the judgment whose material provisions are as follows:
"2. For the use, support, and maintenance of the plaintiff, by way of alimony or support money, the defendant agrees to pay to the clerk of the above-entitled court, the sum of $75 a month; the first payment of the said sum of $75 is to be so paid on the 1st day of August, 1946, or on the first day of September, 1946, depending upon when the decree of divorce is taken, and monthly thereafter, and on the first day of each and every ensuing month thereafter, a further payment of $75 is to be similarly paid.
"3. The defendant further agrees to pay the sum of $13.38 each month to the clerk of the above-entitled court for the use of the plaintiff in paying certain insurance premiums which aggregate, monthly, the sum of $13.38. The defendant further agrees to pay the said sum of $13.38 to the clerk of the above-entitled court on the 1st day of August, 1946, or on the first day of September, 1946, depending upon when the decree of divorce is taken, and monthly thereafter, and on the 1st day of each and every ensuing month thereafter, a further payment of $13.38, until all premiums are paid on each of the said policies respectively.
"4. It is understood and agreed that these payments are to be made by the defendant subject to the further order of the court, and that for so long as he maintains them, and the court does not order otherwise, the plaintiff agrees not to press any further claims or demands in or upon any business enterprise with which the defendant is associated or connected, or any and all personal or real property of the defendant.
"5. The plaintiff agrees not to press any further claims or demands in or upon that certain realty in which the parties hereto have a joint interest at Lake Nebagamon and at Spider lake in Douglas county, and in the state of Wisconsin, and the plaintiff further agrees to quitclaim any interest she might have to the said realty to the said defendant.
"6. The plaintiff agrees not to press any further claims or demand in or upon that certain motor car or vehicle in which the parties hereto have a joint interest, and the plaintiff further agrees to give an appropriate quitclaim conveyance of any such interest she might have in and to the said motor car or vehicle."
On petition of Mrs. Rooney, and on stipulation by the parties, on May 6, 1959, the circuit court for Douglas county ordered the monthly payments for Patricia to be increased to $137.50 until her majority and the alimony to Mrs. Rooney be increased to $100 per month. In her petition to revise the judgment as to alimony and support allowances appellant stated:
". . . that in the event of the decease of defendant prior to the time when the child of the parties is able to be self-supporting, your petitioner would be without adequate funds to educate the child and maintain herself and that there is presently no provision made for such a contingency though your petitioner believes the defendant is financially able to provide for such contingencies and is required by the station in life of the petitioner, the defendant, and the child of the parties."
On July 16, 1961, Robert Rooney died while the divorce judgment as amended was in full force and effect. The value of his estate was appraised at $115,404.63. The present worth of Mrs. Rooney's claim against the estate by appellant for future alimony payments is $13,396.80. This amount is based on her life expectancy in accordance with secs. 314.06 and 314.07, Stats.
The issue presented upon appeal is whether the judgment and stipulation provide for alimony payments to appellant after the death of her former husband in view of the language of the judgment and stipulation and the circumstances surrounding the divorce.
The general principle is well established that alimony payments to the divorced wife cease upon the death of the divorced husband. Estate of Traver (1958), 2 Wis.2d 509, 87 N.W.2d 269; Kuether v. State (1921), 174 Wis. 538, 183 N.W. 695; Yates v. Yates (1917), 165 Wis. 250, 161 N.W. 743. However, this principle is subject to the rule that alimony can be given after the death of the husband if the spouses so agree by stipulation. Traver, supra, page 518. Where ambiguity exists, view may be had to the surrounding circumstances in interpreting the judgment and stipulation as well as their express language. Traver, supra, page 516.
As in the Traver Case, the present judgment and stipulation do not contain an express statement that alimony shall continue after the death of the divorced husband. However, in Traver the judgment provided, in part:
". . . in par. 5 (b), that the alimony payments shall continue until the further order of the court `but in no case after the death of the defendant, Ayleen N. Traver.' The provisions of sub. (f), `to make defendant secure in the alimony payments,' require the husband to convey the Broad street property to the trustee, `such conveyance to be for the term of the life of defendant.' From this language it would appear that the allowance of alimony was for the life of Ayleen Traver. There is nothing in the judgment to indicate otherwise. The contingencies specifically provided for are: (1) If the wife died during the husband's lifetime, the title to the Broad street property was to revert to the husband, — in other words, the alimony secured to the wife by the trust was to cease at her death. (2) On the death of the wife the remainder in the trust property was to go to the children of the parties, — the implication being that if the husband preceded the wife in death, the trust would remain in effect to secure the alimony payments until she should die." Estate of Traver, supra, page 515.
Appellant points to paragraph 4 of the present stipulation in support of her contention that there is express language stating that alimony should continue after the death of Mr. Rooney. This provision secures the payments of alimony, and by it appellant could not press any claims against her former husband's property or business as long as he maintains payments unless the court orders otherwise.
In the case at bar, neither stipulation nor judgment contained a statement that alimony would continue until further order of the court but in no case not after the death of the wife, nor was there a trust set up for the life of the wife to secure these payments, thus differing from the recitations in Traver. The mere security of alimony payments by giving the wife the right to make a claim on the husband's property or business if he does not maintain payments without any further provision for the contingency of his death cannot be interpreted to mean that it expressly provides for the continuance of alimony payments after the death of the husband.
The circumstances surrounding the divorce do not indicate, as appellant urges us to believe, that the parties intended the stipulation to provide for alimony after Mr. Rooney's death. The similarities in the situation of the Traver Case to those of the present case are that the wife had no sizeable estate, could not support herself, and could not manage property
In the present case, however, the spouses were around thirty-seven years of age at the time of the divorce. The record does not show the value of the property owned jointly by the parties or the value of Mr. rooney's one-third interest in the liquor-distributing company. To make estimates in that regard without further facts would be mere speculation. We cannot hold here as we did in the Traver Case that the value of the husband's property at the time of the divorce was substantially the same as at his death. On the contrary, the record indicates there was a substantial change in the value of Mr. Rooney's estate. The monthly income of Mr. Rooney according to appellant's complaint for divorce, was in excess of $300. Confronted with her own inability to be self-supporting, and with the age of her husband and the value of his property and monthly wage, appellant chose to divest herself of her ownership in the joint property in return for monthly payments of alimony.
Several years after the divorce the financial status of Mr. Rooney had substantially changed. He no longer was earning in excess of $300 per month as appellant had alleged in her complaint, but was earning in excess of $15,000 per year according to her petition to revise the judgment. It is significant that in her petition she indicated that there was no provision in the judgment or stipulation allowing for alimony or for support of the child if her former husband predecease them. No mention was made in this petition or in the subsequent stipulation approved by the court, that to continue the alimony and support payment after the death of the husband would meet this contingency. On the contrary, these circumstances served as reasons for appellant to obtain an increase in her alimony and in the support payments.
Therefore, we cannot hold that the judgment and stipulation expressly provided for alimony to continue after the death of Mr. Rooney, nor can we hold that the circumstances surrounding the divorce indicate there was this intention.
By The Court. — Judgment affirmed.