Summary
upholding circuit court's cancellation of arrearages because the findings in the underlying child support order had been incomplete
Summary of this case from Barbara B. v. Dorian HOpinion
No. 272.
Argued June 1, 1970. —
Decided June 26, 1970.
APPEAL from an order of the circuit court for Milwaukee county: MARVIN C. HOLZ, Circuit Judge. Affirmed.
For the appellant there was a brief by Tilg Koch, and oral argument by John P. Hayes, all of Milwaukee.
For the respondent there was a brief by Gaines Saichek, attorneys, and Irving D. Gaines and David A. Saichek of counsel, all of Milwaukee, and oral argument by Irving D. Gaines.
This is an appeal from an order of the circuit court dated July 17, 1969, which modified support and alimony payments ordered by the parties' judgment of divorce in 1964.
It appears from the record that the circuit court in March, 1965, entered an order initially directing the plaintiff-husband to pay alimony of $200 per month and support money of $260 per month.
The husband moved to California at about the time of the divorce. In January of 1966, while the husband was visiting Wisconsin, he was served with an order setting a time for hearing defendant's motion to increase alimony and support payments; and to pay college expenses for the oldest child of the parties. Plaintiff states that he was unable to locate his lawyer, and he, the plaintiff, had to return to California. Accordingly, he appeared before the court commissioner neither in person nor by attorney. The defendant wife and her attorney appeared.
The court commissioner recommended an increase in alimony payments from $200 to $360 per month, and an increase in support payments from $260 to $300 per month. He also recommended that the plaintiff-husband pay the college expenses of Brad Lee, the eldest child.
On March 1, 1966, Judge LEANDER J. FOLEY, JR., signed an order incorporating these recommendations, reserving jurisdiction, however, for the purpose of entering money judgments "from time to time against the plaintiff and in favor of the defendant for any amounts of money ordered to be paid by him herein and which is not paid."
On advice of counsel, plaintiff failed to pay the sums directed to be paid by the order of March 1, 1966.
In December of 1967 the defendant-wife served notice of motion for judgment on the arrearage that had accumulated. She claimed $4,400 for past due alimony and support payments and $1,540 which she had expended on Brad Lee's education.
The plaintiff responded with two motions, one, to show cause why the March 1, 1966, order should not be vacated, and a second, served later, to modify the original divorce judgment.
At subsequent hearings the trial judge found, and it appears undisputed, that the court commissioner at the time of the 1966 hearing had made no record whatsoever, and that there was nothing in the record supporting any change of circumstances from the time of the original order to March 1, 1966, that would justify a modification of the support and alimony order. The record failed to show any earnings for either the plaintiff or defendant. The summary sheet prepared by the family court commissioner at that time bore the notation, "Written stipulation will be made and approved when order is brought in by Mr. Tilg." The court in its memorandum decision in the instant case stated that there was ". . . a strong inference that the order was not based upon the merits, but was calculated to require Mr. Rust to take the initiative because of his non-residence to upset the order."
The court, therefore, apparently because it could not review the change of circumstances, since they were not of record, canceled all arrearages and determined that it could establish the plaintiff's present obligation to the defendant only by reviewing the whole matter upon the merits from the time the defendant first sought a modification of the payments in 1966.
The court found that there had been no change of circumstances since the time of the original order that warranted a revision of the alimony award.
It found that a change of circumstances occurred in September of 1966, when Brad Lee entered college, and from that date the plaintiff was ordered to pay $250 additional support money for each school year. It found that this resulted in an arrearage of support at the time of the order in the amount of $750, which it ordered to be paid at the rate of $150 per month. It also provided that $1,750 be withdrawn from certain trust funds established by the plaintiff to repay loans incurred for the education of Brad Lee during the school years of 1966-1967, 1967-1968, and 1968-1969, and to reimburse the defendant for moneys used by her for the education of Brad Lee. In addition, current support payments for Brad Lee were increased from $130 per month to $150 per month commencing on July 1, 1969.
The defendant has appealed.
The defendant-wife asserts that her motion for a money judgment for the arrearage in alimony should have been granted.
The Wisconsin law, however, is clear that one to whom alimony is due and owing is not thereby entitled to a money judgment. Sec. 247.32, Stats., provides that the court has continuing jurisdiction to revise its judgments.
"247.32 Revision of judgment. After a judgment providing for alimony or other allowance for the wife and children, or either of them, or for the appointment of trustees as aforesaid the court may, from time to time, on the petition of either of the parties and upon notice to the family court commissioner, revise and alter such judgment respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any judgment respecting any of the said matters which such court might have made in the original action. But when a final division of the property shall have been made under s. 247.26 no other provisions shall be thereafter made for the wife."
In a case in which a wife sought to collect an alimony arrearage by a garnishment, this court in Courtney v. Courtney (1947), 251 Wis. 443, 446, 29 N.W.2d 759, stated:
"It is to be remembered that it is an alimony judgment which is sought to be enforced here. Such judgments differ from other judgments in these respects: They are always in the control of and subject to revision by the court; they do not create a debtor-creditor relationship of the usual sort."
In Braun v. Brown (1957), 1 Wis.2d 481, 85 N.W.2d 392, 86 N.W.2d 427, it was held that a money judgment for support arrearage was proper upon the death the minor child, but only because the continuing jurisdiction of the court had terminated upon the death of the child.
Under the statutory powers conferred upon courts of divorce jurisdiction and the uniform holdings of this court, a court may, in the exercise of its discretion cancel a support or alimony arrearage, but Miner v. Miner (1960), 10 Wis.2d 438, 103 N.W.2d 4, made it clear that an arrearage should be canceled only upon cause or justification.
Contrary, however, to the assertion of the defendant that she was entitled to judgment for the arrearage unless the plaintiff could show the order of March, 1966, was beyond the court's jurisdiction or obtained by fraud, it is apparent that it was within the sound discretion of the court to reduce the arrearage or to wipe it out entirely.
The appellant in her brief acknowledges that the family court had the "discretionary powers to revise the arrearage in this matter," but she objects to the court's exercising its power to declare the March, 1966, order vacated.
It is true, of course, that the plaintiff had no justification to ignore the court's order, even upon advice of counsel. If he considered the March, 1966, order unreasonable or not based upon the facts, his remedy was to appeal from that order. The defendant did not, however, seek to enforce the order by invoking the contempt power of the court, which we have stated repeatedly is the proper remedy for flouting a court order for payment of alimony or support. Kriesel v. Kriesel (1967), 35 Wis.2d 134, 139, 150 N.W.2d 416; Larson v. Larson (1946), 248 Wis. 352, 355, 21 N.W.2d 725. Instead, defendant after almost two years sought to collect the arrearage.
When the trial judge was confronted with defendant's motion for judgment on the arrearages and the plaintiff's motions for the vacation of the 1966 order and the modification of the original divorce order, he was obliged to approach the question raised, bearing in mind that "Either or both of the parties may not be motivated by any sense of justice. A divorce is not a business matter . . . . The state has an interest in the divorce and its consequences." Miner v. Miner, supra, page 442. Under the exercise of continuing jurisdiction, he was obliged to look not only to the fact of the 1966 order but the present reasonableness of its enforcement. His examination of the 1966 order and its conflict with the factual allegations of the petitions presently before the court led him to the conclusion that the 1966 order ought not be enforced. Whether the order was vacated or whether the court released the plaintiff from the arrearages thereunder is immaterial in the present case and is largely a matter of semantics rather than substance. He determined in the exercise of his continuing jurisdiction that it was not in the best interest of the parties to give effect to the 1966 order.
The trial court in reaching a decision on both the petition of the defendant and of the plaintiff was obliged to determine to what extent circumstances had changed between the date of the 1964 divorce and the 1969 hearing. The trial judge's examination of the 1966 record showed a total absence of findings of the circumstances as they then existed. The 1966 order provided no basis whatsoever for the trial court to comparatively evaluate the status of the parties in respect to a change of circumstances since 1966.
In Miner v. Miner (1960), 10 Wis.2d 438, 441, 103 N.W.2d 4, we said:
"When a court in a divorce action awards alimony, it is based upon the circumstances of the parties at the time of the judgment and is normally considered res adjudicata as to that situation. To modify 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."
In the instant case the circumstances of the parties at the time of the 1966 order did not appear of record. Nothing appeared therein which showed a change of circumstances during the period 1965-1966 and no findings were made of circumstances in 1966 by which the court could now measure subsequent changes in the circumstances of the parties.
Under these circumstances the court concluded that its base must be the initial 1965 order for support and alimony which was based upon the then existing circumstances of the parties and which were clearly set forth in the findings of Judge ROBERT W. HANSEN at the time of the divorce.
In fairness to the defendant, who originally had petitioned for a modification of the order in 1966, the trial judge reconstituted the circumstances of the parties for each of those years and made findings in respect thereto, relative to changed circumstances. Only by making findings in this proceeding was the trial court able to determine the obligations of the plaintiff for the years 1966-1969.
In the recent case of Lacey v. Lacey (1970), 45 Wis.2d 378, 173 N.W.2d 142, this court emphasized the importance of complete findings of fact in family court cases and pointed out the impossibility of reviewing the fairness of the financial arrangements set forth in a divorce decree unless the basis for the order is disclosed and there are complete and comprehensive findings of fact. It is obvious that support and alimony orders not only cannot be reasonably reviewed in the absence of proper fact finding, but they additionally cannot be properly used as a benchmark for a change in circumstances if one of the parties later seeks a revision of the judgment.
We are satisfied that the court properly, in the exercise of its sound discretion, declined to award the arrearage that defendant claimed arose under the 1966 order, both in respect to alimony and support. No serious contention is made that the found facts are contrary to the great weight and clear preponderance of the evidence, and our review of the record reveals ample support for the crucial findings. The expenditures of all parties were examined for the entire period and the income of the plaintiff was carefully analyzed to determine his financial capacity from 1966 to 1969. We are satisfied that the trial court acted within its powers and in the exercise of proper discretion.
By the Court. — Order affirmed.
ROBERT W. HANSEN, J., took no part.