Summary
In Schneider v. Schneider, 15 Wis.2d 245, 112 N.W.2d 584 (1961), the husband had $5,000 in the fund, which he would receive if he were to quit, retire, or be fired. Because the husband apparently had no intent to retire at the time, the money would not be immediately available.
Summary of this case from Bloomer v. BloomerOpinion
November 28, 1961 —
December 29, 1961.
APPEAL from a judgment 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 Phillips, Phillips, Hoffman Lay of Milwaukee, and oral argument by Bertram J. Hoffman.
For the respondent the cause was submitted on the brief of Jos. F. Studnicka of Milwaukee.
Divorce of Helen Schneider from Frank Schneider. The circuit court found Frank guilty of cruel and inhuman treatment, including excessive drinking and dissipation of family funds. Judgment was entered February 14, 1961. Custody of the two children, aged six and nine, was awarded to Helen. Frank was ordered to pay alimony of $30 per month and support money of $120 per month.
Frank is forty-four years old, employed as a maintenance man at Falk Corporation. He has been there eighteen years and earns at least $80 per week according to his testimony, $100 according to Helen's. Helen is forty-six and not now employed. She testified to several operations she has had and that her doctor advised her not to work. She previously worked for short periods, but has not, in all, been employed as much as half the time during the marriage. Helen had a son who was nine years old at the time of the marriage. He was supported by Frank during most of the time the parties lived together.
Aside from several small insurance policies, the cash value of which does not appear, their property and the disposition ordered by the court are as follows:
Awarded Awarded to to Total Helen Frank Other ----- ------- ------- ----- Furniture $ 500 $ 500 Bank account 6,651 2,051 $2,000 $2,600 Credit union 350 350 Automobile 2,500 2,500 Interest in profit-sharing trust 5,000 5,000 ------- ------ -------- -------- Total $15,001 $2,551 $9,850 $2,600 There were debts of $229.75 which Frank was ordered to pay.The bank account, car, and credit-union account, totaling $9,501, represent most of the net proceeds of the sale of the home in 1960. They had bought it for $19,200 in 1956. The cash paid had been inherited by Frank. While they owned it, payments were made to reduce the mortgage, but the house was sold for $16,000 and a loss sustained.
Frank's employer has created a profit-sharing trust and has deposited $5,000 to Frank's account. Payments will be made out of this account to Frank upon retirement or resignation or to beneficiaries at Frank's death. The court awarded the deposit in this fund to Frank, but ordered him not to use or dispose of any portion of it until the children became self-supporting and ordered that he use it as security for payment of support money.
The court divided the bank account as follows: $2,051 to Helen, $2,000 to Frank, $300 to Helen's attorney, $300 to Frank's attorney, and $2,000 to be invested and held by the clerk of the circuit court. This fund is to be used as a trust fund for insuring payment of support money by Frank. If not used, the court retains jurisdiction over it until further order.
Helen appealed from the part of the judgment dividing the estate.
The division of property in a divorce case is peculiarly within the discretion of the trial court. An award of one third to the wife is a proper starting point, but this amount may be increased or decreased according to special circumstances.
Antholt v. Antholt (1959), 6 Wis.2d 586, 588, 95 N.W.2d 224; Caldwell v. Caldwell (1958), 5 Wis.2d 146, 160, 92 N.W.2d 356.
In this case the wife is in ill-health, unable to work, and will be required to devote a substantial portion of time to raising the two children. Although Frank supported Helen's older son during his minority, she was periodically employed and her earnings must have helped to some extent. The divorce was awarded to her. Although it is true that she was awarded alimony, our review of the record discloses no substantial reason why she should receive so much less than one third of the estate as she was given.
Frank's counsel relies in part on Helen's answer to a particular question indicating that she was not so much interested in getting the money for herself, as in preventing Frank from spending it for drink while she had to raise the children. The circuit court gave no indication that it placed great weight on this answer, and we do not view it in the nature of a waiver or stipulation.
We have held that, although a husband's interest in a retirement fund cannot be divided between the parties, its value should be taken into account in making a division of estate. If Frank's interest in the profit-sharing trust were taken into consideration at $5,000, the amount on deposit, the value of the property awarded to Helen would be only 17 per cent of the total estate. Leaving the profit-sharing trust out of account, the award to her is still only 26 per cent of the total estate.
Schafer v. Schafer (1958), 3 Wis.2d 166, 170, 87 N.W.2d 803.
If Helen were awarded the entire bank account except for the $2,000 to be held by the clerk and the $600 to be paid to the attorneys, she would receive about 31 per cent or less than one third of the total value if the interest in the profit-sharing trust be included at $5,000. Doubtless the interest in the trust should be valued at a little less than that because Frank cannot withdraw the money at will. This addition to the award to Helen seems fair if it be also determined that Frank will ultimately receive the $2,000 to be held by the clerk if not needed to fulfil his obligation to pay support money. No argument has been made on behalf of Frank that the court's arrangements to secure payment of support money were improper. By the Court. — The part of the judgment disposing of the savings account in the City Bank Trust Company is modified so that the sum of $2,000 previously awarded to defendant will be awarded to plaintiff in addition to the other sums awarded her, and so that the defendant shall have the right when his obligation to pay support money terminates to receive the entire $2,000 fund, or balance thereof, ordered to be held by the clerk of circuit court. As so modified, the judgment is affirmed.