Opinion
October 30, 1961 —
November 28, 1961.
APPEAL from a judgment of the circuit court for Milwaukee county: ROBERT W. HANSEN, Circuit Judge. Affirmed.
For the appellant there were briefs by Robert J. Beaudry, and oral argument by Mr. Beaudry and by Mr. Bernard J. Lutzke, both of Milwaukee.
For the respondent there was a brief by Tilg Koch of Milwaukee, and oral argument by George W. Koch, Jr.
Action for divorce by Leone Zajdel against Chester S. Zajdel commenced May 25, 1959. The circuit court found Chester guilty of cruel and inhuman treatment, and judgment of divorce was entered November 4, 1960. The judgment provided for a division of estate in lieu of alimony and Leone appealed from those provisions.
The parties were married September 7, 1946. Chester was in military service. After his return in October, 1947, he was continuously employed and Leone was employed at all times during the marriage. There were no children.
At the date of the marriage Leone had savings accounts in which the balances were $1,086.32, $2,682.44, and $320.06, totaling $4,088.82. She testified that she had bonds (later sold) and obligations due her from members of her family (later collected) bringing the amount of her assets at the time of the marriage up to $8,000. Chester owned a fishing tug which was sold in November, 1946, for $3,468.51. During 1947 the allotments received by Leone by reason of Chester's military service and Chester's earnings (after taxes) after his return totaled $1,024.59. Leone's earnings (after taxes) for that year were $3,118.50. Including the 1947 figures, Chester's total earnings (after taxes) to December 31, 1958, were $52,554.88; Leone's were $45,453.51, or 46 per cent of the total. Leone testified that she received about $1,000 in gifts from her family shortly after the marriage.
On July 9, 1948, the Zajdels bought a home in joint tenancy for $11,500. They paid cash, part being paid out of the account in which the proceeds of sale of Chester's boat had been deposited. Later, improvements were made costing about $2,500.
In December, 1949, an apartment house was purchased for $31,500. Title was taken in joint tenancy, and a mortgage given by Chester and Leone; immediately thereafter Chester quitclaimed to Leone. There was a dispute as to the reason for this. Six thousand dollars of the purchase price were obtained by a mortgage on the home paid off by October 19, 1951, $18,000 by a mortgage on the apartment house paid off by August 5, 1954. and $1,000 by a loan from Leone's sister apparently paid off in 1957. In the years 1950 to 1958, inclusive, the net cash produced by apartment-house rentals, after expenses paid and federal taxes attributable to it, totaled $19,313.02.
In 1958 Chester inherited a one-third interest in real estate, his interest being worth $4,500, and $2,000 in cash.
At the time of trial on September 15, 1960, the parties stipulated to the then value of the assets. The stipulated values totaled $93,164.23, and the assets consisted of bank and savings and loan accounts in the names of one or both parties totaling $17,883.13, securities in Chester's name totaling $10,231.11, cash value of Chester's life insurance .amounting to $1,500, the apartment house valued at $41,500, the home at $13,000, Chester's inherited interest in real estate, two automobiles, furniture, and miscellaneous items.
The circuit court found that all the assets were acquired by the joint efforts of the parties. The judgment required Leone to sell the apartment house and pay $10,000 of the proceeds to Chester and $1,000 to the attorneys for the parties. Assuming that the apartment house can be sold for the stipulated value plus any expense of sale and taking all the other assets at the stipulated values, the award to Leone totaled $57,283.13, or about 61 per cent of the value of all the assets. Leone is entitled to all income from the apartment house until the sale, and must pay taxes and expense of maintenance.
Additional facts will be referred to in the opinion.
Leone claimed in substance that Chester provided money for the living expenses and retained the rest of his earnings; that he had not contributed materially to the purchase of the home and apartment house. Chester claimed in substance that prior to 1955, they had pooled their money for all purposes; that he made half the payments on the mortgages by which the purchase of the apartment was financed, and that after Leone in 1954 claimed the apartment house as her own he began to keep his savings separate. The circuit court resolved the conflict without entirely adopting the claim of either party. The court stated orally at the close of the trial that it found the bulk of the assets "to be a product of a family enterprise, even though, it may be true that certain checks, and particularly certain periods, were used in various ways, the wife's savings going into one undertaking, the husband's checks going into another." The court made a written finding that all the assets were acquired by the joint efforts of the parties. The testimony of the parties is in conflict in important particulars and conflicting inferences can be drawn from the records of their transactions. It suffices to say that we have reviewed the record and conclude that the circuit court's finding is not against the great weight and clear preponderance of the evidence.
Leone's claim, if sustained, would have established the home and apartment house as her separate property, and prevented interference with her possession of these assets. The result of the court's finding is that all the assets in Leone's name constitute estate of the wife derived in part from the husband, and therefore subject to division along with the assets in Chester's name.
Sec. 247.35, Stats.
Sec. 247.26, Stats.
In the court's oral pronouncement as to the division, the court referred to two bank accounts as containing certain balances which were somewhat larger than the stipulated figures. The balances to which the court referred were the actual balances some months before trial and the stipulated figures were the correct balances at the time of trial. While Leone's counsel has used the stipulated figures in his brief on appeal and Chester's counsel has used the figures stated by the court, neither has suggested an explanation of why the court departed from the stipulated figures. In our decision we have used the stipulated figures. The court gave no indication of the reasoning upon which the division was based except for a statement that a 60 per cent allowance to Leone seemed equitable.
"We have held many times that the division of property in divorce actions is a matter peculiarly within the discretion of the trial court and its determination must prevail unless clearly characterized by mistake or error with respect to the facts upon which the court exercised its discretion."
Antholt v. Antholt (1959), 6 Wis.2d 586, 588, 95 N.W.2d 224.
We have recently stated that where the estate to be divided on divorce has been partially acquired from capital contributions of the wife, the wife should first be awarded her capital contributions and the residue divided on the basis of an equitable formula.
Van Erem v. Van Erem (1961), 14 Wis.2d 611, 111 N.W.2d 440; Wagner v. Wagner (1961), 14 Wis.2d 23, 109 N.W.2d 507.
For the purpose of testing the reasonableness of the division made by the circuit court we have made our own analysis of the situation. It may not reflect the reasoning actually followed by the court, but does demonstrate to our satisfaction that the division made by the court cannot be termed an abuse of discretion.
The parties' total assets may reasonably be attributed to the following sources:
We have computed the savings out of earnings during the marriage on the assumption that each party saved the same percentage of his earnings. This assumption seems reasonable in the light of the court's finding that all the assets were acquired by joint efforts and the relatively small amount of the parties' expenditures for living expenses and other personal purposes. Since Leone's earnings were 46 per cent of the total, we have computed her savings out of her earnings at 46 per cent of $44,883, the approximate amount saved by the parties during marriage exclusive of the apartment-house rentals.
We used 52 per cent for the following reasons: Chester's inheritance was received late in the marriage and after the apartment house was paid for. Excluding the $6,500 inheritance, the contributions of both parties out of savings, gifts, and earnings total $57,351. Leone's contribution was 51.7 per cent thereof.
Leone is not to receive alimony. On the other hand she has been continuously employed, apparently can support herself without difficulty, and will have a substantial amount of property. Although a larger award to her could have been sustained, it does not follow that the award made represented an abuse of discretion.
Leone also appealed from a portion of the judgment canceling an arrearage of temporary alimony. It seems to be conceded, however, that the apparent arrearage was the result of an error and was properly canceled.
By the Court. — Judgment affirmed.