Opinion
April 6, 1961 —
May 2, 1961.
APPEAL from parts of an order of the circuit court for Milwaukee county: ROBERT W. HANSEN, Circuit Judge. Modified and, as modified, affirmed.
For the appellant there was a brief by Rubin, Ruppa Wegner of Milwaukee, and oral argument by Nathan Ruppa.
For the respondent there was a brief and oral argument by Walter J. Steininger of Milwaukee.
Application by the defendant to modify the provisions of a judgment of divorce requiring the payment of alimony and support money for minor children. Plaintiff and defendant were married in 1948. Judgment of absolute divorce was granted to the plaintiff on July 29, 1959. On that date the parties were the parents of three children, nine, seven, and three years of age. Pursuant to the provisions of a stipulation the judgment required the defendant to pay the sum of $140 per month as permanent alimony for the plaintiff and $180 per month as support for the children.
On August 2, 1960, the defendant applied to the family court commissioner for Milwaukee county for a reduction in the required payments because of changed financial circumstances. On September 14, 1960, the family court commissioner denied defendant's application. The defendant requested a review of the order of the family court commissioner refusing to modify the judgment and the matter was set for hearing before the above-named circuit judge.
The defendant moved in circuit court for an order canceling the amounts due for alimony and support money that he alleged he had been unable to pay because of his changed financial circumstances. The plaintiff moved to have the defendant adjudged in contempt of court for his wilful and contumacious failure to pay the alimony and support money pursuant to the judgment.
On October 18, 1960, the court entered an order denying the motion of the defendant for a reduction of the monthly amount of alimony and support money required to be paid by him pursuant to the terms of the judgment of divorce, and affirming the order of the family court commissioner. The order further directed that the sum of $320 of the amount due for alimony and support money be canceled leaving the amount thereof as of October 15, 1960, as $1,205, which the defendant was ordered to pay at the rate of $10 per week. It was further ordered that the plaintiff's motion to have the defendant adjudged in contempt of court be denied.
The defendant appealed from all of said order except that portion thereof which denied plaintiff's motion to hold him in contempt.
The record discloses that at the time of the divorce neither of the parties owned any real estate and their personal property consisted of household furnishings and an automobile. Pursuant to the written stipulation, the judgment of divorce awarded all of the household furniture in possession of the plaintiff to her, and the automobile to the defendant.
At the time of the divorce the defendant was earning approximately $9,000 per year as a transportation specialist. He testified that he lost this employment on March 29, 1960; that he was unemployed in April and was in a hospital for approximately a week during that month; that on May 1st he obtained employment selling automobiles; that he earned $406.46 in May, $460.14 in June, $310 in July, and nothing in August; that said amounts were gross and that his expenses, mostly for gasoline, amounted to $57 per month; that on the 28th of August, 1960, he was employed by another truck line at a rate of $600 per month gross. The defendant remarried at Dubuque, Iowa, on August 22, 1960.
The defendant further testified that his take-home pay is $474 per month; that he has an arrangement with his second wife, who works, that his contribution toward household expenses will be $86 per month; that his total requirements for his living expenses are $236 per month, but there was no breakdown of this figure; that he must use a car in his new position; that he sold the car he owned at the time of the divorce and now uses a car belonging to his wife; that his gasoline expenses for using the same amount to $35 per month; and with insurance and other incidentals his car expense will amount to $550 per year.
Plaintiff testified, and defendant admitted, that the sum of $320 per month for alimony and support money is required in order that she and the children can live in a frugal manner. A husband's duty to support his wife and children does not cease because of a divorce and even though the burden may be onerous the husband's obligation to support is present and must be recognized. To justify a modification of the judgment at some subsequent time, it is incumbent upon the one who seeks the modification to show that there is a substantial or material change in the circumstances of the parties which would justify such modification.
The wife is in worse circumstances financially than at the time of the divorce. She was forced to borrow substantial sums of money to support herself and children while her husband was not making the payments, and because of health conditions and because of her indebtedness her needs are greater. There was a substantial and material change in the defendant's circumstances during the summer of 1960. However, they had improved by the date of the hearing. The hearing was so close to the time of his obtaining his new position and to the time of his marriage that a clear picture of his then financial situation is not reflected in the record. The trial court, however, was satisfied that the defendant's circumstances were such that he could pay the $320 per month for alimony and child support. We agree with that determination. The defendant is a young man, trained as a transportation specialist and when engaged in that field of endeavor his services command a good salary. Even though burdensome he must pay the sums he admits are required for the support of his former wife and his children.
Because of his age and prospects, the trial court was correct in refusing to cancel the arrearage in his payments to a greater extent than is provided by the order. Token payments thereon should be required. For the reasons stated above there should be a reappraisal of the defendant's ability to make payments toward the arrearage. Until such time arrives the order will be modified to provide for the payment of $10 per month instead of $10 per week thereon.
By the Court. — The order of October 18, 1960, is modified to require the payment of $10 per month rather than per week on the arrearage until the further order of the circuit court for Milwaukee county. In other respects the order is affirmed. No costs are to be taxed in this court by either party.