Opinion
September 5, 1962 —
October 2, 1962.
APPEAL from an order of the circuit court for Waukesha county: ALLEN D. YOUNG, Reserve Circuit Judge, Presiding. Affirmed.
For the appellant there were briefs and oral argument by Roland J. Steinle, Sr., attorney, and Gregory Gramling, Jr., of counsel, both of Milwaukee.
For the respondent there was a brief by Eisenberg Kletzke, attorneys, and Edwin A. Star of counsel, all of Milwaukee, and oral argument by Mr. Star.
Motion by defendant Paul J. Ford for an order directing that a divorce judgment providing for payment of a property division in instalments in lieu of alimony be satisfied by his tender to plaintiff Irma D. Ford of stock securing the payment. In its judgment, the court incorporated the provisions of a stipulation between the parties which read in part:
"3. That the defendant is to pay the plaintiff the sum of Fifty-Six Thousand Dollars ($56,000) as follows: Five Thousand Five Hundred Dollars ($5,500) within thirty (30) days from date and Five Thousand Five Hundred Dollars ($5,500) within sixty (60) days from date and Five Thousand Dollars ($5,000) on the 1st day of March, 1961, and Five Thousand Dollars ($5,000) on the 1st day of March of each year thereafter until the full sum of Fifty-Six Thousand Dollars ($56,000) is paid, and the same is to constitute a full, final, and complete settlement between the parties and in lieu of all alimony.
"4. The alimony is to be held open until the full Fifty-Six Thousand Dollars ($56,000) is paid and at that time alimony shall be terminated. In the event of default in the aforementioned payment of Fifty-Six Thousand Dollars ($56,000) as previously related, the plaintiff may apply to the court for permanent alimony.
"5. It is further understood and agreed between the parties to this action that the defendant may not dispose of one hundred and seventy (170) shares of stock owned by him in the Product Miniature Company, which stock is herewith considered as additional security for the payment of the aforementioned property division, without first securing approval of the court. It is further agreed that said one hundred and seventy (170) shares of stock shall be valued at Forty-Eight Thousand Dollars ($48,000) for the purpose of this stipulation."
On March 1, 1961, a balance of $44,250 remained unpaid. Thereupon defendant tendered to plaintiff the 170 shares of stock referred to in the judgment. On August 29, 1961, the court denied defendant's petition for cancellation of the property settlement and setting of alimony. Thereafter, defendant began the instant proceeding, by affidavit and order to show cause, to compel satisfaction of the judgment. After a hearing, the circuit court denied defendant's motion by order entered January 2, 1962. Defendant has appealed this order.
The sole issue on this appeal is whether plaintiff wife was required to accept defendant's tender of the 170 shares of stock in satisfaction of the balance of $44,250 owing to her under the judgment.
In our opinion, the aforequoted provisions of the judgment, under which defendant is to pay $56,000 to plaintiff, do not grant an option to defendant permitting him to discharge the balance due of $44,250 by tendering to plaintiff the 170 shares of stock. The record is obscure as to why the stipulation and judgment made reference to the value of the stock. Nevertheless, the statement placing a value upon the stock is an insufficient basis for a finding that the judgment grants defendant the option which he now claims.
The judgment provided that the 170 shares of stock were to serve as additional security for defendant's payment of the $56,000 to plaintiff. The general rule is that a creditor need not resort to the security, provided by the debtor for payment of his debt, before bringing action upon the debt. Bank of Sheboygan v. Fessler (1935), 218 Wis. 244, 246, 260 N.W. 441; Herro v. Heating Plumbing Finance Corp. (1931), 206 Wis. 256, 261, 239 N.W. 413.
Even if defendant's motion were to be construed as one to amend or modify the division of estate, the circuit court would have been without jurisdiction to act in the matter, because such motion was not timely made. Anderson v. Anderson (1959), 8 Wis.2d 133, 98 N.W.2d 434.
By the Court. — Order affirmed.