Bussewitz v. Bussewitz

248 N.W.2d 417, 75 Wis. 2d 78, 1977 Wisc. LEXIS 1406
CourtWisconsin Supreme Court
DecidedJanuary 6, 1977
Docket75-206
StatusPublished
Cited by26 cases

This text of 248 N.W.2d 417 (Bussewitz v. Bussewitz) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bussewitz v. Bussewitz, 248 N.W.2d 417, 75 Wis. 2d 78, 1977 Wisc. LEXIS 1406 (Wis. 1977).

Opinion

CONNOR T. HANSEN, J.

The issues presented for our consideration all relate to the property division as ultimately set forth in the judgment of divorce.

The plaintiff and defendant were married on July 3, 1965. The judgment of divorce was entered September 27, 1974. Both parties had been previously married and both had children by their prior marriages. At the time of the marriage, the plaintiff was thirty-eight years of age, and the defendant was fifty years of age. They were married nine years. Dean Brian Bussewitz, a minor child, born November 10, 1966, was the only issue of the marriage.

The defendant continued to work after the marriage as a tool and die maker at the A. 0. Smith Company. During the term of the marriage, he was employed continuously and provided the majority of support for the parties. At the time of the divorce, his net income was approximately $783 per month. The plaintiff was em *80 ployed for three and one-half months during the marriage as a spark plug inspector at the A. C. Spark Plug Company. Shortly after the marriage, she terminated her employment in order to care for the parties’ child. The plaintiff received approximately $150 per month social security payments for the support of a minor child by her previous marriage. From that income, she was able to repay in full approximately $3,000-$4,000 worth of liabilities which she had incurred prior to the marriage.

Sometime prior to the divorce, the plaintiff had an intestinal bypass medical operation. She was hospitalized for three months and incurred, and continues to incur, medical expenses as a result of the operation. Up to the time of the divorce, most medical expenses were paid by the defendant’s insurance.

The divorce action was commenced by the plaintiff. The trial court awarded a judgment of absolute divorce to the plaintiff on the grounds of cruel and inhuman treatment. In accordance with a previous stipulation of the parties, the trial court awarded custody of the parties’ minor child to the plaintiff. As to alimony, child support, property division and other awards, the trial court ordered, adjudged and decreed the following:

(1) That the defendant pay the sum of $100, per month for three years as limited alimony to the plaintiff.

(2) That the defendant pay the sum of $100 per month as and for support of the minor child for three years after which support shall be increased to $125 per month until the' child reaches the age of eighteen.

• (3) That the defendant be responsible for all bills and financial obligations of the parties up to July 11, 1974.

(4) That the plaintiff be awarded all furniture, furnishings and personal effects in her possession, including a 1964 Chrysler.

*81 (5) That the defendant he awarded all personal property belongings and effects in his possession, including a 1968 Dodge.

(6) That the defendant pay as contribution toward the plaintiff’s attorney’s fees, $235.

(7) That the defendant maintain life and medical insurance policies for himself and for the benefit of the minor child.

(8) That the defendant be awarded a 19-foot house trailer purchased in 1971 for $2,300; the proceeds of a loan made to his son, Michael, in the amount of $3,000; and 7^4 acres of unimproved land in Crivitz, Wisconsin, purchased in 1956, for $875.

(9) That the defendant be awarded stocks and bonds held jointly by the parties totalling $4,071.78, at the time of the divorce.

(10) That the defendant pay to the plaintiff the sum of $4,500 cash.

(11) That the plaintiff be awarded the family home located at 12734 West Hampton avenue, Butler, Wisconsin.

(12) That the defendant pay back taxes on the home.

Two issues are presented on this appeal:

1. Whether, under all the circumstances, the property division and awards were excessive in favor of the plaintiff and hence constituted an abuse of discretion on the part of the trial court?

2. Whether, under all the circumstances, the failure to make findings of fact as to the value of major assets before making the property division constituted an abuse of discretion on the part of the trial court?

PROPERTY DIVISION AND AWARDS.

The defendant does not challenge all portions of the judgment dealing with property division and awards. He *82 confines this appeal to a consideration of the major assets of the parties, i.e., the homestead, 71/2 acres of land, the 19-foot house trailer, the bonds, $4,500 cash, and the $3,000 loan; to the awards of limited alimony, child support, attorney fee contribution, and to the order that the defendant pay back taxes on the homestead.

The defendant erroneously places all of the above in the category of property division; assigns arbitrary values to the homestead, 7% acres of land and trailer; and arrives at the conclusion that the trial court awarded the plaintiff “. . . approximately 70% of the marital estate . . . .” It is based on that 70 percent figure that the defendant argues excessiveness. We would first observe that alimony, child support and attorney fee contribution, under these circumstances cannot properly be considered as part of the property division of the marital estate. Generally, such obligations are in the nature of support and maintenance and not a portion of the marital estate. Sholund v. Sholund, 34 Wis.2d 122, 130, 148 N.W.2d 726 (1967) ; Luedke v. Luedke, 215 Wis. 303, 305, 254 N.W. 525 (1934). They arise as a result of the marital relationship, are generally subject to change or modification, and as a generalization are fixed on the basis of the needs of the wife and children and the ability of the husband to pay. Balaam v. Balaam, 52 Wis.2d 20, 25, 187 N.W.2d 867 (1971); Hirth v. Hirth, 48 Wis.2d 491, 493, 180 N.W.2d 601 (1970). Such obligations continue after the termination of the marriage. Radandt v. Radandt, 30 Wis.2d 108, 112, 140 N.W.2d 293 (1966); Tonjes v. Tonjes, 24 Wis.2d 120, 125, 128 N.W.2d 446 (1964). Property division on the other hand is a onetime or final disposition. Johnson v. Johnson, 37 Wis.2d 302, 309, 310, 155 N.W.2d 111, 156 N.W.2d 492 (1967). A property division is the fair, equitable and just division of the marital estate, or assets of the parties as they exist at the time of the divorce. That is, the assets which *83 the parties brought into the marriage and/or acquired during the marriage. The former obligations are not a part of that marital estate. While the defendant may challenge as excessive the amounts awarded for alimony, child support, and attorney’s fees, such awards are not necessarily included in a computation of the net marital estate.

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Bluebook (online)
248 N.W.2d 417, 75 Wis. 2d 78, 1977 Wisc. LEXIS 1406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bussewitz-v-bussewitz-wis-1977.