Action for divorce commenced November 28, 1941, by plaintiff-appellant against defendant-respondent, in which the plaintiff husband sought an absolute divorce on the grounds of alleged cruel and inhuman treatment. The defendant wife answered, denying the alleged cruel and inhuman treatment, and counterclaimed for an absolute divorce, in which she alleged that plaintiff had treated her in a cruel and inhuman manner over a period of years preceding the commencement of the action. Also, alleged that plaintiff was an habitual drunkard; that he had gone on drunks periodically for weeks at a time.
The parties intermarried August 4, 1913. At the time of the trial plaintiff was fifty-one years of age; defendant was fifty-five. Nine children were born to the parties, five of whom were minors at the time of the trial varying in ages from eleven years to twenty years. The parties are the owners of a sixty-nine-acre farm located in the town of New Berlin, Waukesha county. The real estate is incumbered by two mortgages amounting to $4,200, with accrued interest in the sum of $150, and taxes due in the sum of $100.
The court found that the net value of the real estate was $2,850; that the parties were the owners of various farm machinery, livestock, and other personal property, subject to a chattel mortgage in the sum of $265; and that the net value of said personal property was $5,771.25. The court found that for more than five years preceding the commencement of *Page 96 the action plaintiff's treatment of the defendant was inhuman, evidenced by physical violence and otherwise; that plaintiff had been an habitual drunkard and was periodically drunk for various lengths of time, at times for periods of three weeks during which he at times struck and beat the defendant, and on some occasions chased defendant and the children out of the house.
As conclusions of law the court found that plaintiff's complaint should be dismissed; that defendant was entitled to judgment dissolving the bond of matrimony; that the defendant be awarded the care and custody of the minor children of the parties "and their maintenance and support are her obligation; that the plaintiff be relieved of further payments for the support and maintenance of the minor children of the parties;" that defendant be required to pay plaintiff the sum of $2,500, as follows: $1,250 within thirty days from date of judgment, the further sum of $625 within one year from said date, and the balance of $625 within two years from said date; that defendant pay the further sum of $37.70 to cover disbursements incurred, and the sum of $192.75, being the amount of an indebtedness incurred by plaintiff for his personal support during pendency of the action; that the plaintiff be divested of all his right, title, and interest in and to the real estate and personal property; that title thereto be vested in defendant, subject to a lien for the $2,500 to be paid to the plaintiff.
From a judgment accordingly entered on April 17, 1942, plaintiff appeals. The contest is on the division of the property of the parties. The trial court recognized that its disposition of the case was somewhat unusual. The court said: *Page 97
"But it is made because of circumstances which are seldom found in this sort of litigation. If it is without precedent, I think it is safe to say that precedent for a similar situation is not to be found. Here the husband is allowed less than is ordinarily given him; but I do it because I am satisfied that it is all that can be provided for him and for the further reason that I have the best reason for believing that whatever he receives will be his for only a short time. His conduct in the past predicts that very definitely."
It will be noted from the facts found that defendant takes the farm and personal property subject to an indebtedness of $4,945.45. The findings are as to the net value of both real estate and personal property. The situation would be quite different if the court was dealing with clear values, free of incumbrances. It is apparent that the trial court was confronted with the situation of saving a home for the mother and the minor children, having in mind the contribution made by both the mother and the children in accumulating their property. With reference to that phase of the case the court said:
"Their income, from which the value has resulted, is from the operation of a hog farm conducted and operated largely by the labor of the defendant and her children and with little help from the plaintiff. His habits have been such that there is no doubt in my mind that if he were given the farm and personal property they soon would be dissipated, leaving nothing for the family. This is especially true since it appears clearly that the children have lost all confidence in their father and would refuse to stay with him to operate the farm. Left alone in the management of the farm the property would disappear very shortly. Under the circumstances the court is compelled to determine that defendant should have the farm and personal property charged however with the requirement that she should pay plaintiff some amount as his portion of the estate of the parties." *Page 98
Sec. 247.24, Stats., so far as material, provides:
"In rendering a judgment of nullity of marriage or for divorce, whether from the bond of matrimony or from bed and board, the court 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."
In considering the division made, the order as to the minor children must be taken into account. The judgment provides that "the defendant be awarded the care and custody of the minor children of the parties and that their maintenance and support are her obligation; that the plaintiff be relieved of further payments for the support and maintenance of the minor children of the parties." The plaintiff is given the right of visitation with the minor children. In Hiecke v.Hiecke, 163 Wis. 171, 178, 157 N.W. 747, the court said:
"The well-established rule is that, in general, a liberal amount to be allowed to the divorced wife is one third in money value of the husband's property. That may be increased to one half or more for special circumstances." Citing cases.
The court below took into consideration the nature of the property and the manner of its acquisition. Of the purchase price of the original ten acres of the farm, which was purchased for $3,800, defendant contributed $1,700 which she had received as an inheritance. This purchase was made more than twenty-five years ago and title was taken in the joint names of the parties. From the evidence the trial court concluded that the value of the estate accumulated by the parties was due largely to the labor of the defendant and the children. As said in Voegeli v. Voegeli, 204 Wis. 363, 365, 236 N.W. 123, quoting from Steinbach v. Steinbach, 200 Wis. 208,227 N.W. 879: "The division is not a problem in fractions. In every case all the circumstances must be considered, including the separate estate of the wife." In the instant case the wife has *Page 99 no separate estate, other than her interest in the property in question. The division of property was peculiarly within the discretion of the trial court. Its determination must prevail in the absence of "mistake or some manifest error respecting the detail facts upon which it rests, or disregard of established guides, amounting to a pretty clear want of judicial discretion or judgment." See Voegeli v. Voegeli, supra, p. 365. There was no abuse of judicial discretion or judgment in the instant case.
By the Court. — Judgment affirmed.