Schoenemann v. Schoenemann
Schoenemann v. Schoenemann
Opinion of the Court
Reluctant as this court always is to interfere with the discretion vested in a trial court in matters such as are here involved, yet an examination of the record compels us to copie to the conclusion that the trial court should have made a different adjustment of this case. The court acted under sec. 2364, Stats., providing for alimony, and also: “The court may finally divide and distribute the estate, both real and personal, of the husband . . . between the parties and divest and transfer the title of any thereof accordingly, having always due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties and all the circumstances of the case.”
Here the husband had no real estate of his own and his liabilities greatly exceeded the value of his personal property. There was here, therefore, no present property which could be subjected to division or to any attempted enforcement of such provision.
The defendant was in effect compelled to mortgage, to that extent, his future earning capacity and to' increase his then excess of liabilities over assets by a further loan if he were to meet the conditions of the judgment. The court also, as is shown by his statement quoted above, was influenced in his division by undue consideration given to the circumstances of the respective families and their apparent ability and willingness to take care of the two parties. In such situation, there being no present property to divide and the plaintiff’s physical condition and ability to care for herself. in the future being materially impaired, we think a proper regard for the character and situation of the parties, under all the circumstances of the case, would be better sub-served by requiring that the defendant provide out of his future earnings for the care and support of his wife by monthly payments, until at least there has been some substantial change in the circumstances of either or both, rather
We shall not fix the allowance, but only suggest that $20 or $25 per month as such alimony would seem proper.
By the Court. — Judgment reversed, and the cause remanded with directions to enter judgment in accordance with this opinion.
Reference
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