Schubert v. Schubert

^* Motion for rehearing denied, with $25 costs, on July 27, 1943. Action for divorce by Anna Schubert against Frank Schubert commenced August 20, 1942. From a judgment for the plaintiff, the defendant appeals.

The appeal is directed only to so much of the judgment as makes a division of the joint property of the couple. The defendant is fifty-nine years old, unemployed at present and not in good health. The plaintiff is fifty years old and not in good health. Plaintiff in 1924 inherited about $2,500 from her mother, which sum she used to pay off a mortgage on the homestead. This homestead was valued at $4,300 by the trial court and is subject to a $2,000 mortgage. The trial court found that in addition to the homestead the couple had a car, title to which is in the defendant's name, worth $350; personal property including defendant's tools, worth $1,000; $1,250 which defendant has in cash which was withdrawn from the bank. The court found that the plaintiff had in her own right a one-half interest in both the homestead and the personal property and also in the $1,250 withdrawn by defendant from their joint account and also in the car. This, the court concluded, meant that the defendant owned $2,450 of the joint property. The court awarded the plaintiff one half of this amount, or $1,225, plus $75 attorney's fees and costs. That made the defendant's share $1,225, less the fees and costs. He already had $1,250 which he had taken from the bank. The homestead, subject to the mortgage, the personal property and the car were assigned to the plaintiff.

The defendant objects to the size of plaintiff's share, to her being awarded certain articles used by him in his business and to the court's evaluation of the homestead. Appellant contends that the trial court erred in its division of property. The rule recognized in Wisconsin is that the division of property in a divorce case is a matter peculiarly within the discretion of the trial court.Voegeli v. Voegeli, 204 Wis. 363, 236 N.W. 123 (authorities cited). While the division made by the trial court was generous to respondent, in view of her $2,500 contribution we do not consider it unduly so except that appellant should be awarded the personal property listed as his in the order of October 3, 1942, i.e., the tools, etc.

Counsel for appellant, having agreed to accept the assessed value as the true value of the homestead, is not now in a position to challenge the finding of the trial court.

By the Court. — Judgment modified so as to award the above described personalty to the appellant, and as modified affirmed. No costs allowed. Appellant to pay clerk's fees.