Summary
In Peck v. Peck, 272 Wis. 466, 76 N.W.2d 316 (1956), the issue was whether the trial court had abused its discretion in relieving the husband of the obligation to make further support payments for a minor son who had graduated from high school and gone on to college.
Summary of this case from Besaw v. BesawOpinion
March 6, 1956 —
April 3, 1956.
APPEAL from orders of the county court of Walworth county: ROSCOE R. LUCE, Judge. Affirmed.
For the appellant there was a brief by Baumblatt Goodman of Racine, and oral argument by L. P. Baumblatt.
For the respondent there was a brief by Nettie E. Karcher of Burlington, attorney, and Heft, Brown, Stewart Coates of Racine of counsel, and oral argument by Carroll R. Heft.
Application by the defendant Eunice I. Peck that the plaintiff Harold H. Peck be punished for contempt for failing to comply with a provision of a divorce judgment, as amended by a subsequent order of the court, which required him to pay semimonthly payments for the support of his minor son, Robert Peck; and why the amount of such support money should not be increased because of said son attending college.
The plaintiff husband instituted an action for divorce against the defendant wife, in which action she also counterclaimed for divorce. Under date of January 4, 1950, a judgment of divorce was entered upon the defendant's counterclaim for an absolute divorce. The parties had two minor sons, Robert and William. The judgment required Mr. Peck to pay $50 semimonthly to the clerk of court to be turned over to Mrs. Peck for the support of said children. On February 18, 1952, upon written stipulation of the parties, an order was entered amending the judgment so as to increase said semimonthly payments of support money from $50 to $56.50, each.
Robert was graduated from high school in June, 1954, and became eighteen years of age on September 29, 1954. In the fall of 1954, Robert enrolled at the State Teachers College at Whitewater and was attending said college at the time the pending application was heard and determined in the trial court.
The part of the divorce judgment providing for the payment of support money contained no provision relieving Mr. Peck from making such payments after each of the children arrived at the age of eighteen years. However, Mr. Peck erroneously assumed that he had a right to cease making said payments for Robert after the latter arrived at eighteen years of age. Mrs. Peck instituted the instant proceedings to punish Mr. Peck for contempt for his failure to continue making the support-money payments for the benefit of Robert, and also to increase the amount thereof because of the extra expense to which she had been put as a result of sending Robert to college.
Affidavits of both Mr. and Mrs. Peck were submitted for consideration by the trial court and parol testimony of both parties was also taken. The facts hereinafter stated are based upon the averments of such affidavits and said testimony so given.
Mr. Peck is employed as postmaster at the unincorporated village of Lyons in Walworth county, and his gross salary in 1954 was $4,170. He also operates a printing establishment which showed a loss for 1954 as the result of deducting depreciation. When asked what the approximate income of such printing establishment was, excluding depreciation, he answered that he hoped to make $100 a month; that he doubted if it amounted to $1,200 per year, but was willing to accept such figure. Mr. Peck also owed a note to a bank secured by chattel mortgage on which a balance was owing of approximately $1,500, and a judgment had been taken against him in the circuit court for Walworth county for $1,738.03 for printing equipment purchased but not paid for. He had remarried in 1952, and his second wife is dependent upon him for support. Mr. Peck is desirous that his son continue attending the State Teachers College at Whitewater but wants to make his own contributions to such education on a voluntary basis rather than upon court order to pay a specified amount monthly.
The defendant, Mrs. Peck, is employed as a clerk in the post office at Lyons and receives slightly over $2,100 salary from such employment. Robert earned approximately $600 in 1953 and $400 in 1954 from employment during the summer and otherwise.
By order dated June 6, 1955, the trial court found that the income of Mr. Peck was such that he should not be required to provide support for Robert beyond March 31, 1955; and ordered the defendant to pay all arrearages and support money for Robert which had accrued to March 31, 1955. Thereafter, Mrs. Peck made application to the court for an order requiring Mr. Peck to pay the costs and attorney fees to which she would be put in the appeal to this court from such order of June 6, 1955, which application was denied by order of the trial court dated July 28, 1955. Mrs. Peck has appealed to this court from said latter order as well as from said order of June 6, 1955.
Sec. 247.24, Stats., provides that the court in rendering a judgment of divorce "may make such further provisions therein as it shall deem just and proper concerning the care, custody, maintenance, and education of the minor children of the parties." (Italics supplied.)
There seems to be very little case law in Wisconsin interpreting the quoted provision of this statute as applied to a father's duty to contribute toward the support and education of a son or daughter under twenty-one years of age who has completed high school and is desirous of a college education. In fact, the only decision of this court which touches on this problem at all seems to be Brackob v. Brackob (1953), 265 Wis. 513, 61 N.W.2d 849. In that case the judgment for divorce required the husband to pay money for the support of his three minor children until they arrived at the age of twenty-one years, and the husband contended that this was an abuse of discretion. The conceded net income of the father was $5,900, while his gross income was in excess of $21,000. This court held that the husband could increase such net income by curtailing certain unnecessary expenditures and in our opinion stated (p. 524):
"The income of the defendant is such that he should be required to provide further education beyond high school for his children up to the time that they arrive at the age of twenty-one, if such children are desirous of taking advantage thereof."
In the instant case, Mr. Peck's annual gross income is $4,170 excluding possible income from the printing shop. If depreciation were charged off as an operating expense, which it should be in accord with proper accounting practice, he had no net income therefrom. Counsel for Mrs. Peck stress the fact that Mr. Peck admitted in his testimony that he was willing to accept the figure of $1,200 as being his annual net income from the printing shop excluding any deduction for depreciation. Without more information regarding the nature and amount of depreciation deducted than is disclosed by the record, we consider such admission to be entitled to very little weight in passing on the issue at hand.
We are of the opinion that as a general rule, in a case where a child under twenty-one years of age who has completed high school is desirous of attending college and whose high-school record has demonstrated that he has the capacity to do college work, a court should not relieve the father from at least being required to continue paying the monthly support money provided in the divorce judgment for the period prior to the child arriving at the age of eighteen years. However, an exception should be made to this rule where the required continuance of such support-money payments would place an undue financial burden on the divorced father.
It is apparent from the record in the instant case that Mr. Peck has been going behind financially. When there is deducted from his gross income of $4,170 his federal and state income taxes and also the $672 per year he must continue to pay for the support of the younger of the two sons it is doubtful if he has $3,000 per year left for the support of himself and his second wife. While the support of the second wife should not be taken into consideration in determining the amount he should be required to pay for the support of his children by his former marriage until they complete their high-school education, it would not be an abuse of discretion for the trial court to consider such factor, together with others, in determining whether he should be required to continue such payments further.
We consider this to be a borderline case and under all the facts and circumstances of this case we cannot hold that there was an abuse of discretion by the learned trial court in relieving Mr. Peck from the payment of further support-money payments for the benefit of Robert subsequent to March 31, 1955, even though we might have arrived at a different conclusion if we had been sitting as the trial court.
There is an additional issue presented of whether it was an abuse of discretion for the trial court to have denied Mrs. Peck's application made pursuant to sec. 251.431, Stats., Supreme Court Rule 43a, for an order requiring Mr. Peck to pay the costs and reasonable attorney fees to be incurred by her in prosecuting this appeal. In opposition to such application, Mr. Peck filed an affidavit in which facts were alleged showing that Mrs. Peck had considerable annual income from sources other than her salary as a post-office employee. We have given no consideration to this additional income in passing on the merits of the appeal from the trial court's original order of June 6, 1955, because this was not part of the record before the trial court when it passed upon the issue of continuance of the support-money payments, or increasing the same. However, the fact that Mrs. Peck possessed such additional financial resources afforded a sufficient ground for the trial court to have denied the application that Mr. Peck be required to pay costs and attorney fees on the appeal.
However, the trial court stated as its reason for denying such latter application the fact that the appeal was from "a discretionary order." Clearly such reason is insufficient to sustain the denial because the instant appeal certainly was not frivolous. In fact, it presented a very close question. We affirm the order denying the application for costs and attorney fees solely on the premise that it would not have been an abuse of discretion if such order had been based upon the ground that Mrs. Peck possessed sufficient means of her own to enable her to prosecute the appeal.
By the Court. — Orders affirmed.