Wisconsin Case Law
STEINMANN v. STEINMANN, 2005AP1588 (Wis.Ct.App. 12-20-2006)
IN RE THE MARRIAGE OF: TONY K. STEINMANN, PETITIONER-RESPONDENT, v. ROSE
M. STEINMANN, RESPONDENT-APPELLANT.
Court of Appeals of Wisconsin, District II.
No. 2005AP1588.
Filed: December 20, 2006.
APPEAL from a judgment of the circuit court for
Walworth County: MICHAEL S. GIBBS, Judge. Affirmed.
Before SNYDER, P.J., NETTESHEIM and ANDERSON, JJ.
1 NETTESHEIM, J.
After an eight-day bench trial, Rose and Tony
Steinmann’s ten-year marriage was dissolved by divorce
in December 2004. The property division involved
substantial assets, many of them funded by Rose’s
significant earnings from her cheese brokerage
business. The main issues on appeal pertain to Rose’s
challenges to the maintenance she was ordered to pay
Tony, and to the property division, which Rose asserts,
pursuant to the parties’ marital property agreement,
should have involved tracing current assets to their
source.
2 We first compliment the trial court on its
comprehensive and well-reasoned written decision. Its
near-textbook thoroughness and clarity immensely aid
review in a case such as this. We see no erroneous use
of the trial court’s discretion in ordering
maintenance. We also hold that the tracing exercise Rose
urges is unwarranted. She reclassified her individual
property when she used it to purchase assets she titled
jointly with Tony. Therefore, we affirm.
BACKGROUND
3 The relevant facts are not in dispute. Tony and
Rose married in 1994. The marriage produced no
children; Tony has two from a prior marriage. Tony is
forty-four years old. He has a GED and has taken various
agricultural courses. The son of a master cheesemaker,
he himself is a licensed cheesemaker and has been
involved in the cheese business virtually his whole
adult life. At the time of the divorce, Tony was a sales
representative for his brother’s cheese business making
$85,000 a year. Rose, fifty-one, attended college but
does not hold a degree. She is the sole owner and
president of Dairy Source, Inc., a cheese brokerage and
distribution company. At the time of the divorce, her
annual salary from Dairy Source was reported to be
$140,000.
4 About a year before their marriage, the parties
bought as tenants in common a residence in Delavan,
Wisconsin. Tony contributed about $10,000, Rose
$39,000, toward the $49,000 down payment. Improvements
to the Delavan house were funded largely by money from
an M&I savings account held in Rose’s name. This
account was referred to at trial as “the 1114 account.”
Except for $12,000 and some income tax money contributed
by Tony, the 1114 account was funded by Rose’s income
from Dairy Source, the approximately $275,000 net
proceeds from the sale of the Delavan property, and the
sizeable settlement from a lawsuit, which we will later
discuss.
5 In May 2001, the parties purchased an unfinished
home on Lake Geneva for $2.2 million. The deed recites
that they bought it as survivorship marital property and
Tony was a joint obligor on the mortgage. Rose testified
that she alone made the decision to jointly title the
property for the sole purpose of survivorship to Tony,
not to gift him half the interest in the home. The
parties also acquired waterfront property on Lake
Michigan and Marco Island, Florida, and two boat slips
at the Marco Island yacht club, all purchased in both
their names as “husband and wife.” Rose also testified
that the titling reflected “estate planning,” not an
intent to gift a marital interest in any of the
properties. Rose paid cash for the Marco Island property
and the boat slips from her Dairy Source income
deposited in the 1114 account. Tony did not contribute
to the purchase, subsequent taxes or upkeep of these
assets.
6 The parties also titled in both their names a
Corvette, an SUV, a pontoon boat, another boat and a
four-wheel-drive ATV. A private plane and a series of
yachts also were available for their use through Dairy
Source. These purchases, including the Lake Geneva
house, primarily were made by Rose or Dairy Source from
the 1114 account.
7 In early 1995, the parties executed a Limited
Marital Property Classification Agreement (the
Agreement) which provided that all assets owned by each
party were to remain that party’s individual property. In
addition, either party’s individual earnings after the
date of the marriage also were classified as individual
property. Rose’s spendable income throughout the marriage
far exceeded Tony’s. Between 1996 and 2002, Rose’s was
$873,645 to Tony’s $120,687.[fn1] Each had a separate
account into which they deposited their respective
incomes. As stated, Rose deposited hers into the 1114
account.
8 Tony filed for divorce in February 2003. In May,
a family court commissioner issued a temporary order
that Rose pay Tony, then unemployed after being fired
from Dairy Source, $5250 monthly maintenance and
granting Rose temporary use of the Lake Geneva
residence. In November, the family court reduced
maintenance to $1875 per month.
9 In early 2004, as the result of some preliminary
proceedings, the trial court determined that the parties’
Agreement was valid and enforceable, and therefore
binding for purposes of property division pursuant to
WIS. STAT. § 767.255(3)(L) (2003-04).[fn2] In addition,
by written decision dated June 29, 2004, the trial court
vacated both temporary maintenance awards, ordered Tony
to repay the $28,956 maintenance payments Rose already
had made, and ordered the sale of the Lake Geneva
residence because it was a drain on marital assets. The
court summarily denied Rose’s request to reconsider the
order directing the sale of the residence. In October,
upon Rose’s continued refusal to vacate the home and list
it for sale, Rose was held in contempt of court and
ordered to jail for six months. Dairy Source bought the
house in November for $3.2 million for Rose’s use,
thereby sparing Rose the contempt sanction.
10 The trial spanned eight days. At trial, Dennis
Mahoney, one of Rose’s experts, testified that a tracing
exercise he had performed demonstrated that Rose’s
income almost entirely funded the purchases of the Lake
Geneva property, the waterfront lots, the boat slips,
the Corvette, the ATV and the fishing boat. Mahoney
opined that Rose merely had loaned her funds for the
purchase of those items but had not transferred
ownership, and the assets therefore should be returned
to Rose. Tony’s expert opined that while Rose’s expert’s
approach was mathematically sound, it was conceptually
flawed because it overlooked substantial activity in
Rose’s ostensibly individual account, ignored Tony’s
contribution of personal labor to the properties and,
when tracing assets, relied on Rose’s statements as to
their origin.
11 For a time during their marriage, Tony was
employed by Berner Cheese Company, which purchased its
raw materials through Dairy Source. In 1999, Tony left
Berner Cheese to work for Dairy Source. A lawsuit
between Berner Cheese and Dairy Source, Tony and Rose
was settled in April 2000 resulting in a $1.35 million
payment to Dairy Source, Tony and Rose. The settlement
was not reported on Rose’s or Tony’s income tax return.
An IRS audit was underway at the time of the divorce
trial, evidently spurred by the parties’
characterization of the settlement as having resulted
from a personal injury, so as to avoid taxes. The audit
report reflected a more than $1.9 million underpayment
(tax plus interest) by Tony and Rose for tax year 2000.
Another of Rose’s experts, George Kiskunas, testified
that the entire settlement was intended to compensate
only Dairy Source for damage to its business and
assets, and predicted that the IRS would ultimately
determine that the settlement belonged only to Dairy
Source. Tony offered no rebuttal evidence, but argued
that the settlement release spoke for itself and that
he, Rose and Dairy Source all had signed off on it. The
trial court declined to decide the tax issue on the
merits or to speculate as to how the IRS ultimately
would resolve it.
12 The trial court granted the divorce on December
17, 2004. In a twenty-three-page opinion, the trial
court thoroughly assessed Tony’s request for
maintenance, property division, and attorney fees. The
court awarded Tony maintenance of $2000 per month for
ten years, the approximate length of the marriage.
Reiterating that the Agreement was valid and
enforceable, the court evaluated the parties’ marital
property in the context of the WIS. STAT. § 767.255(3)
factors, and applied the statutory presumption of equal
division. It rejected as unsupported in law Rose’s
contention that property the parties acquired using her
individual assets, though jointly titled, should be
traced back to its individual property source and
therefore awarded to her. The court also found
incredible certain of Rose’s testimony. Finally, the
court declined to find that Tony engaged in overtrial
and therefore denied Rose’s request for an attorney fee
contribution. Later, the court summarily denied Rose’s
motions for reconsideration of the maintenance award and
property division and for a stay pending appeal. Rose
appeals. More facts may be added as needed.
DISCUSSION
Property Division
13 Rose first challenges the trial court’s property
division rulings. She does not contest the validity or
enforceability of the parties’ Agreement; instead she
argues that the trial court did not properly uphold it.
She contends that because the Agreement specifically
lists the instances where title controls, tracing is
mandated in all other situations. She submits that when
the trial court refused to trace current assets to
identify their origin, it essentially rewrote the
Agreement by classifying assets based on title rather
than source of funds.
14 Property division at divorce is governed by
WIS. STAT. § 767.255.[fn3] Waln v. Waln, 2005 WI App 54,
§ 8, 280 Wis. 2d 253, 694 N.W.2d 452. Since none of
the parties’ property was acquired through gift or
inheritance, all is presumptively equally divisible.
See § 767.255(3). However, this presumption may be
altered after considering various factors. Id. The party
asserting that property or part of its value is exempt
from division has the burden of showing its
nondivisibility at divorce. Derr v. Derr, 2005 WI App 63,
§ 11, 280 Wis. 2d 681, 696 N.W.2d 170.
15 A trial court’s decision on how to divide
divisible property generally is within its sound
discretion. Id., § 9. We will affirm a property
division award that represents a rational decision based
on the application of the correct legal standards to the
facts of record. Rumpff v. Rumpff, 2004 WI App 197,
§ 27, 276 Wis. 2d 606, 688 N.W.2d 699. Determining
whether property is subject to division in the first
instance, however, involves the application of WIS.
STAT. § 767.255(2) to uncontested facts and calls into
play the trial court’s consideration of the Agreement
under § 767.255(3)(L). The interpretation of a statute
presents a question of law that we review independently.
See Waln, 280 Wis. 2d 253, § 7. Likewise, the
construction of a marital property agreement, a
contract, is a question of law. Gardner v. Gardner,
190 Wis. 2d 216, 240, 527 N.W.2d 701 (Ct.App. 1994).
Accordingly, we review de novo the trial court’s
threshold determination of whether given property was
divisible marital property. See Waln, 280 Wis. 2d 253,
§ 7.
16 As noted, among the statutory factors a court
must consider is any written agreement concerning any
arrangement for property distribution. WIS. STAT. §
767.255(3)(L). If equitable, such an agreement is
binding upon the court. Id. Rose’s and Tony’s Agreement
provides in relevant part:
IT IS HEREBY AGREED AS FOLLOWS:
1. The parties agree that all of the assets on
Exhibit “A” shall be classified as marital property
and all of the assets on Exhibit “B” shall be
classified as SURVIVORSHIP marital property and all of
the assets on Exhibit “C” shall be the individual
property of each party as DESIGNATED thereon.
9. The parties agree that this Agreement will be
binding on the issue of property division in the event
of the Divorce of the parties hereto.
17 Exhibit “A” listed as marital property the
Delavan residence and its furnishings, an Aid
Association for Lutherans mutual fund, and a checking
account. Exhibit “B” listed as survivorship marital
property only “Personal Effects of either Individual
Party to the other Party.” The parties’ Individual
Property detailed in Exhibit “C” included “all income
earned . . . together with all assets acquired or income
derived therefrom” and “[a]ll property acquired with any
Individual Property or acquired in exchange for any
Individual Property or acquired from the proceeds of
sale of any Individual Property.”
18 Guided by the Agreement’s property
classification, the trial court first addressed the
individual property recited in the Agreement, and then
turned to the division of the marital property under
WIS. STAT. § 767.255(3). The court began, as directed,
with the presumption of equal division and then
thoroughly considered the statutory factors. None
persuaded the court to veer from the statutory
presumption of equal division. It determined that the
Delavan and Lake Geneva homes, the waterfront lots and
the two boat slips were marital property, and the
proceeds from their sales were to be equally divided. A
Thrivent financial account and various boats and
vehicles also were deemed to be marital property; each
party was to receive half the value of each asset. Dairy
Source, Rose and Tony each were awarded an undivided
one-third interest in the Berner Cheese settlement.
Finally, Rose was to pay Tony an equalizing payment once
their jewelry and household items were divided.
19 Because the Agreement provides that her Dairy
Source earnings and all assets acquired with those
earnings are individual property, Rose maintains the
trial court was required to trace the jointly held
assets to the source of the funds used to acquire them.
She argues that the Agreement implicitly mandates
tracing because it specifies when classifying by title
is contemplated: life insurance policies, IRAs, pension
accounts, deferred employment benefits, stocks, mutual
funds and other investments all are individual property
“regardless of the type of funds contributed.”
Therefore, Rose deduces, fidelity to the Agreement
requires that the source of funds determine an asset’s
classification and resulting distribution. Rose’s
expert, Dennis Mahoney, an attorney and certified public
accountant, testified that if a party’s individual
property could be traced, it was to be returned to that
party at divorce. He traced to Rose’s individual property
between 92.71% and 100% of the money used to purchase
the waterfront properties, the Marco Island boat slips
and the Lake Geneva residence.
20 The trial court acknowledged that some of Rose’s
individual property was used to purchase various
assets, but expressly refused to engage in a tracing
expedition. Rose could cite no case law, and the court
knew of none, to support tracing individual assets which
were not gifted or inherited. The court also observed
that even Mahoney conceded that in divorce law tracing
applies only in the context of gifted or inherited
property. Looking to cases addressing transmutation of
gifted or inherited property, the court stated that by
titling the assets in both names, Rose made gifts to
Tony, thereby transmuting her individual property into
marital property. See Brandt v. Brandt, 145 Wis. 2d 394,
410-11, 427 N.W.2d 126 (Ct.App. 1988) (retitling
inherited individual property may transmute it into
marital property and makes donative intent relevant);
see also Weiss v. Weiss, 122 Wis. 2d 688, 365 N.W.2d 608
(Ct.App. 1985) (gifted property); and Bonnell v.
Bonnell, 117 Wis. 2d 241, 344 N.W.2d 123 (1984)
(inherited property).
21 We do not deem it necessary to look to cases
addressing disputes over gifted or inherited property to
uphold the trial court’s ultimate decision. In fact, we
have stated that cases establishing the transmuting of
gifted or inherited property into joint property are not
applicable out of that context. Gardner, 190 Wis. 2d at 236.
But while those cases do not control this one, they
nonetheless are generally instructive as to parties’
donative intent. Ascertaining donative intent is a
question of fact. See Derr, 280 Wis. 2d 681, §§
25-27.
22 Rose disputes that she gifted any interest to
Tony, asserting that she merely titled property in that
manner to protect Tony in the event of her death. She
argues that Weberg v. Weberg, 158 Wis. 2d 540,
463 N.W.2d 382 (Ct.App. 1990), is a case in point.
There, the totally and permanently disabled husband
deposited a worker’s compensation award into the
parties’ joint account. Id. at 543, 550. At divorce the
wife claimed the settlement became divisible property by
commingling the otherwise separate asset with a marital
asset. Id. at 550. The trial court found, based on the
husband’s testimony, that the funds had been deposited
in the joint account only so that the wife would be
protected should he die, and that the funds were not
commingled with marital property. Id.
23 Weberg must be read with the standard of review
firmly in mind. The Weberg trial court treated the
commingling as a question of fact relevant to the
husband’s donative intent. See id. at 550-52. On
review, the court of appeals did not decide that
retitling due to an asserted desire to financially
protect a spouse renders an asset indivisible as a matter
of law; rather, it said such a finding was not clearly
erroneous. Id. at 552. It thus upheld as a proper
exercise of the trial court’s discretion the
determination that the award remained the husband’s
separate property. Id. We do not read Weberg as
requiring a trial court to accept a spouse’s testimony
as to donative intent. As we said in Derr:
We glean from . . . cases [such as Weberg] and normal
rules of appellate review the following.
Circumstantial historical facts may give rise to the
legal presumption that an owning spouse gifted
property to the marriage. This presumption arises if
the owning spouse acts in a manner that would normally
evince an intent to gift. However, because donative
intent is ultimately a question of subjective donative
intent, other evidence may persuade a circuit court
that the owning spouse . . . subjectively intended
that gifting not occur. In this circumstance, donative
intent is lacking and the property remains
non-divisible. At the same time, circuit courts are
not obliged to accept the testimony of an owning
spouse about his or her subjective thoughts. If a
circuit court makes an express factual finding that a
spouse consciously did [or did not] intend to gift .
. . we will accord that finding deference. If the
court does not make an express factual finding, we
will normally assume fact finding consistent with the
court’s ultimate decision. For example, if the record
contains evidence of subjective thoughts tending to
rebut a presumption of donative intent [but the
circuit court] . . . makes no express findings
regarding this rebuttal evidence, and . . . determines
there was a gift, then we will normally assume the
circuit court implicitly found the rebuttal evidence
lacking in credibility.
Derr, 280 Wis. 2d 681, § 40 (emphasis added).
24 Here, Rose has not carried the burden of
demonstrating that the disputed property should not have
been divided. The Agreement classified, but did not
divide, Rose’s and Tony’s property. Importantly,
although it specified that it applied in the event of
divorce, the Agreement did not state that tracing should
determine property division. If maintaining a given
asset as her individual property despite a title
suggesting otherwise was Rose’s intent, the Agreement
could have been drafted with greater precision to better
reflect it. See, e.g., Gardner, 190 Wis. 2d at 238
(where the parties’ agreement provided that, upon
divorce, the husband “shall retain the primary residence
of the parties regardless of who has title”). Despite
the parties’ sharp disagreement as to the interpretation
of the Agreement, the underlying facts are undisputed:
Rose chose to use her individual property to purchase
the assets in dispute and chose again to title them
jointly with Tony.
25 The trial court found that Rose was “careful,
calculating and methodical” in managing her “all aspects
of her life and finances” and also was well acquainted
with the legal system through the parties’ involvement
in numerous lawsuits. From that, the court found
incredible Rose’s testimony that she titled assets
jointly only to protect Tony in the event of her death,
not to make a gift to him, and also found it incredible
that a person with Rose’s demonstrated business acumen
in all other areas of her finances would have titled
these substantial assets in one way while expressing a
different ownership intent. The court was not obliged to
accept Rose’s testimony about her subjective thoughts as
the benchmark for the property division. See Derr,
280 Wis. 2d 681, § 40.
26 Moreover, Rose’s Dairy Source earnings were not
the sole source of the funds used to purchase the
disputed assets. The 1114 account also was fed by the
proceeds of the sale of the Delavan home, which Rose
agrees was marital property, and the entire Berner
Cheese settlement, one-third of which the trial court
held belonged to Tony as one of three named parties in
the lawsuit and on the settlement documents.
27 Rose next asserts that the trial court erred
when it disregarded her uncontradicted testimony that
her joint titling of assets was consistent with her
estate planning goals. She submits that a court cannot
disregard uncontroverted testimony unless there is
“something in the case which discredits the testimony or
renders it against reasonable probabilities,” and unless
the court explains why it found the testimony improbable
or the witness not credible. See Ashraf v. Ashraf, 134
Wis. 2d 336, 345, 346, 397 N.W.2d 128 (Ct.App. 1986).
28 Rose quotes Ashraf correctly but her argument
fails nonetheless. First, her testimony was not
uncontradicted. The Lake Geneva property deed — also
admitted into evidence — recited that the home was
titled as survivorship marital property. Likewise, there
was testimony that various other assets were jointly
held. Evidence of one type, even when from an expert,
may be contradicted by evidence of another type, as
recognized in Ashraf by the broad phrase “something in
the case” which renders the testimony incredible or
improbable. Schwegler v. Schwegler, 142 Wis. 2d 362, 368,
417 N.W.2d 420 (Ct.App. 1987). Finally, as we have
noted, the court well explained why it found this
portion of Rose’s testimony incredible.
29 Rose launches a similar argument as to the
Berner Cheese settlement. She contends that the trial
court wrongly “disregarded the plain language of the
settlement agreement” and the testimony of her expert,
George Kiskunas, that the settlement was payable solely
to Dairy Source, Inc. Rose looks to language stating
that the settlement figure “represents complete
compensation for all harm which Dairy Source may have
suffered.” Thus, Rose argues that the court erred by
treating the parties’ share of the settlement as a
marital asset and awarding one-third to Tony. Finally,
Rose argues that the court erred in failing to apportion
the tax liability related to this asset. We disagree
with her entire argument.
30 First, various trial exhibits contradict the
evidence Rose contends is uncontradicted. The opening
sentence of the settlement document, for instance,
states that the agreement and release “is made by . . .
Dairy Source, Inc., Rose Steinmann and Tony Steinmann
(hereinafter referred to as `Dairy Source’). . . .”
(Emphasis added.) The signature page of that document
bears three discreet signature lines: one for Dairy
Source, one for Rose and one for Tony. Also, both Rose
and Tony protested the IRS’s “thirty-day letter” which,
as Tony observes, was not a final determination but
advised only of “proposed changes.” We agree that Rose
should not be heard to complain that the court gave
little weight to an IRS determination to which she
herself objected. Tony’s protest letter explains that
the settlement agreement “did not allocate amounts among
the various claims settled” although it was a global
settlement made to resolve claims made by Dairy Source,
Rose and Tony. This documentary evidence therefore stood
in contrast to Kiskunas’ testimony. In fact, Kiskunas’
own report admitted into evidence acknowledges that,
because Dairy Source is a Subchapter-S corporation and
Rose and Tony filed jointly, all three face “potential
exposure to income taxes, penalties, interest, and other
costs of the ongoing IRS audit.”
31 Second, we disagree that the trial court erred
in classifying the settlement as a marital asset and
awarding one-third to Tony. The settlement agreement and
release was entered into by all three claimants: Dairy
Source, Rose and Tony. While Berner paid the settlement
monies Rose, she deposited the sum into the 1114
account, the same account into which were deposited the
proceeds from the sale of the jointly owned Delavan
home. We hold that the trial court properly considered
the settlement as a divisible marital asset.
32 Third, we disagree that the trial court
sidestepped its obligation to consider the tax
consequences to each party. See WIS. STAT. § 767.255(3)(k).
Contrary to Rose’s assertion, the trial court expressly
acknowledged the pending tax dispute caused by the
parties’ failure to report the settlement as income. The
court, however, refused to speculate on the ultimate
financial penalty on the still-incomplete IRS audit,
stating that since both Tony and Rose did not report the
settlement, both likely faced a penalty, making the
impact on property division effectively a wash. The
court was not bound to accept Kiskunas’ opinion as to
how the IRS would rule. The credibility of witnesses and
the weight to be attached to that evidence is a matter
uniquely within the discretion of the finder of fact.
Laribee v. Laribee, 138 Wis. 2d 46, 54-55, 405 N.W.2d 679
(Ct.App. 1987). Moreover, a court is not obliged to
consider the tax consequences of a hypothetical or
theoretical disposition of marital property. Ondrasek
v. Ondrasek, 126 Wis. 2d 469, 480, 377 N.W.2d 190
(Ct.App. 1985). As we have said in a different context,
while our trial courts have the authority to address tax
issues such as whether a taxpayer will owe a penalty,
until the IRS finally rules, requiring the trial court
to decide would obligate it to make findings based on
speculation or, at best, educated guesses about how the
tax issue will be resolved. Logemann Bros. Co. v. Redlin
Browne, S.C., 205 Wis. 2d 356, 363, 556 N.W.2d 388
(Ct.App. 1996). “[J]ustice is better served to simply
permit the IRS to make the call. . . . [In so doing,] our
trial courts are assured that society’s most qualified
expert in tax law will be making the definitive
determination. . . .” Id.
33 Rose next argues that the trial court’s refusal
to permit tracing resulted in “double counting” assets
that, by the time of trial, no longer were in their
original form. For example, because Rose had used part
of the Berner Cheese settlement to finance the purchase
of the Lake Geneva house, when Tony was awarded half the
proceeds from the sale of that house and one-third of the
Berner Cheese settlement, he actually was awarded the
asset twice, albeit in two different forms. Tony
concedes the error, but argues it was harmless because
the assets involved have no impact on the equalizing
payment Rose was ordered to make. An error is harmless if
it does not affect the substantial rights of the party
seeking to set aside the judgment. See WIS. STAT. §
805.18(2). An error affects the substantial rights of a
party when there is a reasonable possibility — a
possibility sufficient to undermine confidence in the
outcome — that the error contributed to the outcome of
the action. Evelyn C.R. v. Tykila S., 2001 WI 110, § 28,
246 Wis. 2d 1, 629 N.W.2d 768.
34 We agree with Tony. The trial court ordered Rose
to make an equalizing payment only in regard to jewelry
and household items. Without an equalizing payment
involving the disputed assets, their having been double
counted does not matter in the context of the whole
judgment. The error is harmless.
35 Finally, Rose argues that, absent a showing of
extreme financial hardship or material injury to the
property itself, the trial court erred in finding that
the Lake Geneva residence was a drain on the marital
estate requiring its sale before trial. Per the family
court commissioner order, the mortgage, real estate
taxes, utilities, maintenance and related expenses were
paid from the 1114 account, and the trial court found
that those expenses totaled over $14,000 per month. The
court also found that although the 1114 account was
solely in Rose’s name, it included marital funds from
the sale of the prior marital residence and possibly
also “other marital monies.” That account being the
parties’ sole liquid asset, the court found that the cost
of keeping and maintaining the residence was seriously
depleting the marital estate in the short term and
ordered its sale. Dairy Source ultimately purchased the
home for Rose’s use.
36 It is unclear what remedy Rose seeks at this
juncture. Even were we to agree with Rose, we can hardly
“unring the bell” and order a completed sale undone. A
better option would have been for Rose to seek leave to
appeal the nonfinal order she now challenges. See WIS.
STAT. RULE 809.50. Regardless, even as to the merits, we
see no error. As we noted, the trial court found that
the over $14,000 monthly expense of the Lake Geneva
property placed a serious financial drain on the marital
estate. During the pendency of a divorce, a court may
make just and reasonable orders to assure that the
marital assets are protected. See WIS. STAT. § 767.23(1)(h).
We see no reversible error in the trial court’s
determination to order the sale of the residence.
Maintenance
37 The trial court ordered Rose to pay Tony
maintenance of $2000 a month for ten years. She observes
that with this order, the court reversed its own
temporary no-maintenance award, which itself had
reversed the court commissioner’s maintenance order. She
argues that this back-and-forth occurred without new
evidence or a substantial change in circumstances.
38 As a threshold matter, Rose does not explain why
the trial court needed to find a substantial change in
circumstances to modify the temporary order. The
“substantial change in circumstances” test is the
framework we apply when analyzing a challenge to a final
order. See WIS. STAT. § 767.32(1).
39 Furthermore, the determination of the amount and
duration of a maintenance award is entrusted to the
trial court’s discretion, and we will not reverse absent
a misuse of discretion. Grace v. Grace, 195 Wis. 2d
153, 157, 536 N.W.2d 109 (Ct.App. 1995). Where it
appears that the court looked to and considered the facts
of the case and reasoned its way to a conclusion that is
one a reasonable judge could reach and that is
consistent with applicable law, we will affirm the
decision as a proper exercise of discretion. See id. We
conclude that the court complied with this procedure
when making the ultimate maintenance award.
40 We begin by considering whether the trial
court’s application of the factors delineated in WIS.
STAT. § 767.26 achieves the dual objectives of
maintenance: fairness and support. Forester v. Forester,
174 Wis. 2d 78, 84, 496 N.W.2d 771 (Ct.App. 1993). The
court acknowledged that its earlier nonfinal order had
discontinued previously ordered maintenance to Tony, but
that the eight-day trial gave a more complete picture of
the parties’ financial status and of the weight to be
given to the various statutory factors. For example,
evidence was presented that Rose’s stream of income,
including salary, personal use of Dairy Source’s yacht
and private plane, and Dairy Source’s payment of all of
her housing costs, was several times the $120,000
earnings portrayed in her financial disclosure at the
hearing six months earlier. The court methodically
examined each of the nine mandatory factors on the
record and articulated its reasons for determining that
they weighed in favor of granting Tony limited-term
maintenance. The court found that both parties were in
good health, were working successfully in their chosen
field, and needed no further education to advance their
careers. It also found that: ten years is a marriage of
“considerable” length during which the parties had
worked closely together; the property division driven by
the parties’ Agreement favored Rose; Tony’s current
salary permitted self-sufficiency, but not at a level
reasonably comparable to the “opulent lifestyle” the
parties enjoyed together; Rose would realize a tax
benefit through maintenance payments to Tony; and the
parties’ combined efforts fostered Dairy Source’s success
and enhanced their mutual lifestyle. The court
determined that maintenance of $2000 per month for ten
years met both the support and the fairness objectives
of maintenance because it would make the parties’
incomes roughly approximate for a period close to the
length of the marriage. We see no improper exercise of
discretion.
CONCLUSION
41 At divorce, property division and maintenance
largely are discretionary, within the prescribed
statutory framework. Rose’s tracing argument fails
because both the parties’ Agreement and Rose’s own
actions belie an intent to trace ownership. More, we
have no precedent for conducting tracing outside the
context of gifted or inherited property. Thus, Rose has
not met her burden of demonstrating that the disputed
property either remains or reverts to individual
property. We also hold that the trial court did not err
in the exercise of its discretion with regard to the
maintenance award. We affirm the judgment.
By the Court. — Judgment affirmed.
Not recommended for publication in the official reports.
[fn1] Tony testified that at one point he and Rose
devised a way to artificially minimize his salary so as
to reduce his support obligation for the children of his
prior marriage.
[fn2] All references to the Wisconsin Statutes are to
the 2003-04 version unless otherwise noted.
[fn3] WISCONSIN STAT. § 767.255 provides in relevant part:
767.255 Property division. (1) Upon every judgment of
annulment, divorce or legal separation . . . the court
shall divide the property of the parties and divest
and transfer the title of any such property
accordingly. . . .
(3) The court shall presume that all property
not described in sub. (2)(a) [acquisition by gift
or inheritance] is to be divided equally between
the parties, but may alter this distribution . .
. after considering all of the following:
(a) The length of the marriage.
(b) The property brought to the marriage by
each party.
(c) Whether one of the parties has substantial
assets not subject to division by the court.
(d) The contribution of each party to the marriage,
giving appropriate economic value to each party’s
contribution in homemaking and child care services.
(e) The age and physical and emotional health
of the parties.
(f) The contribution by one party to the education,
training or increased earning power of the other.
(g) The earning capacity of each party, including
educational background, training, employment skills,
work experience, length of absence from the job
market, custodial responsibilities for children and
the time and expense necessary to acquire sufficient
education or training to enable the party to become
self-supporting at a standard of living reasonably
comparable to that enjoyed during the marriage.
(h) The desirability of awarding the family home or
the right to live therein for a reasonable period to
the party having physical placement for the greater
period of time.
(i) The amount and duration of an order under s. 767.26
granting maintenance payments to either party, any
order for periodic family support payments under s.
767.261 and whether the property division is in lieu
of such payments.
(j) Other economic circumstances of each party,
including pension benefits, vested or unvested,
and future interests.
(k) The tax consequences to each party.
(L) Any written agreement made by the parties before
or during the marriage concerning any arrangement for
property distribution; such agreements shall be
binding upon the court except that no such agreement
shall be binding where the terms of the agreement are
inequitable as to either party. The court shall
presume any such agreement to be equitable as to both
parties.
(m) Such other factors as the court may in each
individual case determine to be relevant.