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Attorney(S)

For the appellant there was a brief by Rubin, Ruppa Wegner of Milwaukee, and oral argument by Nathan Ruppa. For the respondent there was a brief and oral argument by Walter J. Steininger of Milwaukee.

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Smart Summary

Case Summary: Gissing v. Gissing, Supreme Court of Wisconsin (May 2, 1961)

Factual and Procedural Background

Plaintiff and defendant were married in 1948 and were granted an absolute divorce on July 29, 1959. At the time of the divorce they had three minor children (then ages nine, seven, and three). Pursuant to a written stipulation incorporated in the divorce judgment, the defendant was ordered to pay $140 per month as permanent alimony to the plaintiff and $180 per month for the support of the children (a total of $320 per month). The judgment also awarded household furniture to the plaintiff and the automobile to the defendant.

On August 2, 1960, the defendant applied to the Milwaukee county family court commissioner to reduce the required payments, alleging changed financial circumstances. The commissioner denied the application on September 14, 1960. The defendant sought review in the circuit court. In circuit court the defendant moved to cancel arrearages he alleged he could not pay; the plaintiff moved to have the defendant adjudged in contempt for wilful failure to pay. On October 18, 1960, the circuit court denied the defendant's motion to reduce the monthly payments and affirmed the family court commissioner's order; it canceled $320 of the amount due, left the arrearage as of October 15, 1960 at $1,205, and ordered payment of that arrearage at the rate of $10 per week. The circuit court denied the plaintiff's contempt motion. The defendant appealed all portions of the order except the denial of contempt. The Supreme Court of Wisconsin modified the circuit court order and, as modified, affirmed it.

Legal Issues Presented

Whether the defendant's changed financial circumstances justified modification of the divorce judgment obligations for alimony and child support.
Whether the arrearage in payments should be canceled or reduced because of the defendant's asserted inability to pay.
Whether the defendant should be adjudged in contempt for his failure to pay pursuant to the judgment (not appealed by defendant).

Arguments of the Parties

Appellant's (Defendant's) Arguments

The defendant sought a reduction of the monthly alimony and child-support payments, alleging changed financial circumstances and inability to pay.
The defendant moved to cancel amounts due for alimony and support that he claimed he had been unable to pay because of those changed circumstances.

Respondent's (Plaintiff's) Positions

The plaintiff moved to have the defendant adjudged in contempt for wilful and contumacious failure to pay the alimony and support required by the judgment.
The plaintiff testified (and the defendant admitted) that the $320 per month ordered is required for the plaintiff and the children to live in a frugal manner.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court examined the factual record regarding the parties' finances and applied the governing principle stated in the opinion: a party seeking modification of a divorce judgment must show a substantial or material change in circumstances that justifies modification.

Key factual points considered by the court:

At the time of the divorce the defendant earned approximately $9,000 per year as a transportation specialist and owned the automobile awarded to him.
The defendant lost his employment on March 29, 1960, was unemployed in April (and hospitalized about a week), obtained various short-term employment paying varying gross amounts in May–August 1960, and on August 28, 1960 obtained a position paying $600 per month gross.
The defendant remarried on August 22, 1960 and testified to a take-home pay of $474 per month, an arrangement to contribute $86 per month toward household expenses with his second wife, living expenses totaling $236 per month (without breakdown), and automobile-related costs (gasoline about $35 per month; insurance and incidentals totalling about $550 per year).
The plaintiff's needs had increased since the divorce due to health conditions and debt incurred while the defendant was not making payments.

Applying these facts, the court concluded there was a substantial and material change in the defendant's circumstances during the summer of 1960, but that his circumstances had improved by the time of the hearing. Because the hearing occurred soon after the defendant obtained his new position and remarried, the court found the record did not present a sufficiently clear picture of a long-term inability to pay. The trial court was satisfied the defendant could pay the $320 per month, and the Supreme Court agreed.

The court emphasized the continuing duty of a husband to support his wife and children despite divorce and the burdensome nature of that obligation when present; it held that the defendant had not sustained the burden of showing modification was warranted to reduce the monthly payment. Regarding arrearages, the court found the trial court was correct in refusing to cancel more of the arrearage than it had already cancelled, but that token periodic payments toward arrearage should be required pending a future reappraisal of the defendant's ability to pay.

Holding and Implications

MODIFIED and, as modified, AFFIRMED.

Holding (direct effect):

The Supreme Court of Wisconsin modified the circuit court's October 18, 1960 order by changing the required periodic payment on the arrearage from $10 per week to $10 per month until further order of the circuit court for Milwaukee county.
In all other respects the October 18, 1960 order of the circuit court was affirmed (including the denial of defendant's motion to reduce monthly alimony and child-support payments and the circuit court's prior cancellation of $320 of the amount due, leaving an arrearage of $1,205 as of October 15, 1960).
The circuit court had denied the plaintiff's motion to adjudge the defendant in contempt; that portion was not appealed and remains as entered below.
No costs were to be taxed in the Supreme Court by either party.

Implications:

The decision enforces the principle that a party seeking modification of alimony or child-support obligations bears the burden of demonstrating a substantial or material change in circumstances; here, although a temporary downturn occurred, the defendant's improved circumstances by the hearing meant modification was not warranted. The opinion does not announce or rely upon new legal precedent beyond the application of that standard and does not state broader legal consequences beyond its direct effect on these parties.

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GISSING, Respondent, v. GISSING, Appellant.

Application by the defendant to modify the provisions of a judgment of divorce requiring the payment of alimony and support money for minor children. Plaintiff and defendant were married in 1948. Judgment of absolute divorce was granted to the plaintiff on July 29, 1959. On that date the parties were the parents of three children, nine, seven, and three years of age. Pursuant to the provisions of a stipulation the judgment required the defendant to pay the sum of $140 per month as permanent alimony for the plaintiff and $180 per month as support for the children.

On August 2, 1960, the defendant applied to the family court commissioner for Milwaukee county for a reduction in the required payments because of changed financial circumstances. On September 14, 1960, the family court commissioner denied defendant's application. The defendant requested a review of the order of the family court commissioner refusing to modify the judgment and the matter was set for hearing before the above-named circuit judge.

The defendant moved in circuit court for an order canceling the amounts due for alimony and support money that he alleged he had been unable to pay because of his changed financial circumstances. The plaintiff moved to have the defendant adjudged in contempt of court for his wilful and contumacious failure to pay the alimony and support money pursuant to the judgment.

On October 18, 1960, the court entered an order denying the motion of the defendant for a reduction of the monthly amount of alimony and support money required to be paid by him pursuant to the terms of the judgment of divorce, and affirming the order of the family court commissioner. The order further directed that the sum of $320 of the amount due for alimony and support money be canceled leaving the amount thereof as of October 15, 1960, as $1,205, which the defendant was ordered to pay at the rate of $10 per week. It was further ordered that the plaintiff's motion to have the defendant adjudged in contempt of court be denied.

The defendant appealed from all of said order except that portion thereof which denied plaintiff's motion to hold him in contempt.

BROADFOOT, J.

The record discloses that at the time of the divorce neither of the parties owned any real estate and their personal property consisted of household furnishings and an automobile. Pursuant to the written stipulation, the judgment of divorce awarded all of the household furniture in possession of the plaintiff to her, and the automobile to the defendant.

At the time of the divorce the defendant was earning approximately $9,000 per year as a transportation specialist. He testified that he lost this employment on March 29, 1960; that he was unemployed in April and was in a hospital for approximately a week during that month; that on May 1st he obtained employment selling automobiles; that he earned $406.46 in May, $460.14 in June, $310 in July, and nothing in August; that said amounts were gross and that his expenses, mostly for gasoline, amounted to $57 per month; that on the 28th of August, 1960, he was employed by another truck line at a rate of $600 per month gross. The defendant remarried at Dubuque, Iowa, on August 22, 1960.

The defendant further testified that his take-home pay is $474 per month; that he has an arrangement with his second wife, who works, that his contribution toward household expenses will be $86 per month; that his total requirements for his living expenses are $236 per month, but there was no breakdown of this figure; that he must use a car in his new position; that he sold the car he owned at the time of the divorce and now uses a car belonging to his wife; that his gasoline expenses for using the same amount to $35 per month; and with insurance and other incidentals his car expense will amount to $550 per year.

Plaintiff testified, and defendant admitted, that the sum of $320 per month for alimony and support money is required in order that she and the children can live in a frugal manner. A husband's duty to support his wife and children does not cease because of a divorce and even though the burden may be onerous the husband's obligation to support is present and must be recognized. To justify a modification of 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.

The wife is in worse circumstances financially than at the time of the divorce. She was forced to borrow substantial sums of money to support herself and children while her husband was not making the payments, and because of health conditions and because of her indebtedness her needs are greater. There was a substantial and material change in the defendant's circumstances during the summer of 1960. However, they had improved by the date of the hearing. The hearing was so close to the time of his obtaining his new position and to the time of his marriage that a clear picture of his then financial situation is not reflected in the record. The trial court, however, was satisfied that the defendant's circumstances were such that he could pay the $320 per month for alimony and child support. We agree with that determination. The defendant is a young man, trained as a transportation specialist and when engaged in that field of endeavor his services command a good salary. Even though burdensome he must pay the sums he admits are required for the support of his former wife and his children.

Because of his age and prospects, the trial court was correct in refusing to cancel the arrearage in his payments to a greater extent than is provided by the order. Token payments thereon should be required. For the reasons stated above there should be a reappraisal of the defendant's ability to make payments toward the arrearage. Until such time arrives the order will be modified to provide for the payment of $10 per month instead of $10 per week thereon.

By the Court. — The order of October 18, 1960, is modified to require the payment of $10 per month rather than per week on the arrearage until the further order of the circuit court for Milwaukee county. In other respects the order is affirmed. No costs are to be taxed in this court by either party.

GISSING v. GISSING