Dawn M. Petit v. Terrance A. Petit ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 21, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP2107 Cir. Ct. No. 2016FA16
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
DAWN M. PETIT,
PETITIONER-APPELLANT,
V.
TERRANCE A. PETIT,
RESPONDENT-RESPONDENT.
APPEAL from a judgment of the circuit court for Sawyer County:
JOHN M. YACKEL, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
¶1 HRUZ, J. Dawn Petit appeals a divorce judgment dividing the
marital estate, establishing monthly child support payments from her former
No. 2018AP2107
husband, Terrance Petit, and ordering monthly maintenance to Dawn. 1 Dawn
argues the circuit court erred when calculating the amounts of child support and
monthly maintenance by using what it found to be Terrance’s earning capacity
rather than crediting evidence regarding Terrance’s income in prior years, before a
market downturn in his industry. She also argues the court erroneously exercised
its discretion when it determined which items comprised the marital estate and the
value of certain items, and when it ordered an unequal division of the marital
estate that slightly favored Terrance. We reject these arguments and affirm.
BACKGROUND
¶2 The parties were married in 2008 and have one minor child. Dawn
and Terrance had each been married and divorced before; Dawn had a daughter
from her previous marriage and Terrance had two children from his. The divorce
petition was filed on March 9, 2016, but the parties had been separated since
October 13, 2015, when Dawn moved out of the marital residence.
¶3 The case proceeded to a contested divorce hearing, which was held
on June 19, 2017. The parties agreed to be divorced as of the date of the final
hearing, but to continue the existing temporary order pending the filing of
additional briefs to summarize the parties’ respective positions on the contested
issues. The contested issues included child support, maintenance and property
division.
1
For ease of reading, we refer to the parties by their given names for the remainder of
this opinion.
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¶4 Dawn testified that she had a high school education and that she had
been employed in various administrative and secretarial jobs during her life.
Terrance founded and was the sole member of TP Timber, LLC, which was a
logging business. Dawn cared for the children and, for a time during the marriage,
worked for TP Timber as an office manager. At the time of the final hearing,
Dawn was unemployed, apparently due to various medical conditions.
¶5 Terrance testified that his income had substantially decreased
starting in February 2016 due to a downturn in the logging industry. As a result,
Terrance testified he intended to liquidate his business assets and pursue work as a
supervisor or machine operator for one of the larger logging operators.2 Terrance
submitted a financial disclosure form indicating his current monthly income from
his employment with TP Timber was $4,000. Given his plans to liquidate,
Terrance proposed that his income be set at the annual average earnings for an
experienced first-line logging supervisor ($58,150) or for a logging equipment
operator ($40,690).
¶6 Dawn challenged this proposal based on the parties’ tax returns from
2013 through 2015, asserting that the amount of Terrance’s income should be
based on TP Timber’s adjusted 2015 cash flow. That figure demonstrated the total
cash available to the parties and was calculated by adding the corporate taxable
income, the wages drawn by the parties, and some depreciation and interest
income. Using this calculation, Dawn asserted Terrance’s income for purposes of
child support and maintenance was $235,455 per year, or $19,621.25 per month.
The parties’ 2016 tax return had not been completed at the time of the trial in
2
Wage surveys for these jobs were received into evidence.
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June 2017.3 In October 2017, Terrance filed a motion to supplement the record
with the 2016 tax returns; Dawn opposed this motion, and the circuit court
ultimately denied it.
¶7 The parties also disagreed about the value of key pieces of the
parties’ personal property. Dawn asserted the net value of the marital estate was
approximately $932,026, while Terrance proposed a net value of $460,700. The
parties disagreed about the divisibility and value of certain assets identified in a
personal property appraisal, the completeness of that appraisal, the value of bank
accounts owned by TP Timber, and the value of the parties’ real property
holdings. Dawn proposed an equal division based upon her valuation of the
property, but Terrance, taking into account his valuation, proposed a slight
deviation in his favor (52.5% to 47.5%).
¶8 The circuit court held a decision hearing on March 23, 2018. The
court rejected Terrance’s assertion that Dawn’s earning capacity should be set at a
paralegal’s wage (approximately $55,000), finding that type of work was not
immediately available to her due to her medical conditions, but she might
eventually be able to achieve such employment. The court set Dawn’s earning
capacity at the minimum wage, calculated based upon a thirty-two-hour work
week.4 As for Terrance, the court credited his testimony that his once-lucrative
business had experienced a downturn that threatened its existence. Accordingly,
the court set Terrance’s earning capacity at $58,000, that of a first-line logging
3
Terrance testified he typically filed for an extension each year and the business taxes
were completed in October.
4
Dawn’s brief had suggested she could reasonably work twenty-five hours per week at
the minimum wage.
4
No. 2018AP2107
supervisor in northwestern Wisconsin. The court instructed the parties to calculate
child support based upon those earning capacities.5
¶9 The circuit court then moved on to property division. It noted the
presumption of equal division and the statutory factors to consider when dividing
the property, but it observed the parties had not reached an agreement on what
should be included in the marital estate. The court specifically found Terrance
credible and accepted his testimony regarding certain items that had been gifted to
him, and it agreed with Terrance’s edits to the personal property appraisal.
¶10 After determining what property was subject to division, the circuit
court noted the parties had “substantially more assets than the typical Northwoods
divorcing couples but they have immensely more debt.” Under either proposal,
Terrance would be assuming the parties’ $687,453 debt. The court concluded that
Terrance’s proposal was “an appropriate distribution or division of the property.”
Under that proposal, Terrance would make a $180,000 equalization payment to
Dawn, and she would keep the parties’ Lincoln Navigator, which was worth
approximately $26,000. The court found the slight deviation from an equal
division warranted “because of the fact that he’s undertaking a substantial amount
of debt and it’s still not that far off from a 50/50 division.” The court also took
into account the tax consequences that would arise in relation to the sale of the
business assets.
5
The circuit court subsequently entered an order setting the amount of child support
Terrance would pay at $493 per month. Dawn does not challenge this amount as being incorrect,
aside from her assertion that the court improperly instructed the parties to use what it found to be
Terrance’s earning capacity when calculating Terrance’s child support obligation.
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¶11 Finally, the circuit court addressed maintenance. After discussing
some of the statutory factors, the court concluded it was appropriate that Terrance
pay maintenance to Dawn. However, it rejected her request for $5,000 per month
in maintenance for nine years. The court concluded Dawn’s medical issues did
not preclude her from all work, and it determined she would need some time to
find work and would have additional occupational flexibility as her children aged.
The court ultimately concluded $500 per month in maintenance to Dawn for
eighteen months was appropriate. Noting that Terrance “still has the ability to
earn more over the long term,” it required the parties to exchange financial
information and encouraged them to seek modification of maintenance or child
support if needed.
¶12 Dawn filed a motion for reconsideration, asserting that the circuit
court erred by basing its child support and maintenance determinations on
Terrance’s earning capacity rather than his “actual earnings,” which she argued
was demonstrated by TP Timber’s adjusted cash flow in prior years. It appears
Dawn asserted that Terrance’s income should have been set at the three-year
average business cash flow of $193,686 between 2013 and 2015.6 Dawn also
challenged the court’s adoption of Terrance’s proposed property division, alleging
the court failed to consider Dawn’s proposed property division and did not
adequately explain its reasoning. The motion was apparently heard and denied on
6
This assertion represented a change from Dawn’s argument at the final hearing, where
she had advocated using TP Timber’s adjusted 2015 cash flow of $235,455.
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October 4, 2018, after which time the court entered the written judgment of
divorce.7 Dawn now appeals.
DISCUSSION
¶13 Dawn challenges the circuit court’s determination of Terrence’s
earning capacity with respect to its child support and maintenance awards. She
also argues the court erred in determining the value of the parties’ marital property
and in dividing that property. Child support, maintenance, and property division
determinations are all reviewed for an erroneous exercise of discretion. Weiler v.
Boerner, 2005 WI App 64, ¶¶11, 19, 280 Wis. 2d 519, 695 N.W.2d 833.
Likewise, we review a circuit court’s decision to impute income for an erroneous
exercise of discretion. See Daniel R.C. v. Waukesha Cty., 181 Wis. 2d 146, 155,
510 N.W.2d 746 (Ct. App. 1993). Under that standard, we will affirm as long as
the court reached a rational decision based upon the application of the correct legal
standards to the facts of the case. Weiler, 280 Wis. 2d 519, ¶11.
¶14 Several aspects of the erroneous exercise of discretion standard
warrant particular attention in this case. First, we decide any questions of law that
may arise during our review independently of the circuit court. Id. Second, we
will not overturn the circuit court’s factual findings unless those findings are
clearly erroneous. Doerr v. Doerr, 189 Wis. 2d 112, 121, 525 N.W.2d 745 (Ct.
App. 1994). Third, because the notion of discretion is “fundamental to the trial
7
There is no order or transcript in the appellate record indicating the circuit court denied
the motion for reconsideration, but we accept Dawn’s representation (which is undisputed) that
the motion was in fact addressed by the court prior to entry of the final judgment in this case.
Although Dawn raised some of the same issues in that motion that she raises on appeal, we do not
view the transcript of that hearing as essential to dispose of the issues she now raises.
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No. 2018AP2107
court’s ability to fulfill its role in the legal system, ‘we will search the record for
reasons to sustain its exercise of discretion.’” Roy v. St. Lukes Med. Ctr., 2007
WI App 218, ¶11, 305 Wis. 2d 658, 741 N.W.2d 256 (citation omitted).
I. Child Support and Maintenance
¶15 For both child support and maintenance, the circuit court must
determine the parties’ available income. For child support, the court must order
“either or both parents to pay an amount reasonable or necessary to fulfill a duty to
support a child,” WIS. STAT. § 767.511(1)(a) (2017-18),8 taking into account “all
relevant financial information or other information relevant to the parent’s earning
capacity,” § 767.511(1g). The use of a percentage standard is generally required,
§ 767.511(1j), which involves first determining the parent’s annual income under
WIS. ADMIN. CODE § DCF 150.03(1) (June 2019). That administrative code
section explicitly authorizes a circuit court to base the income determination on
earning capacity. See § DCF 150.03(3).
¶16 Dawn’s argument appears to be that a circuit court can consider a
parent’s earning capacity when calculating income for child support purposes only
if it concludes that the parent is shirking. Because the court articulated no such
explicit conclusion here, Dawn reasons that the use of earning capacity was
inappropriate and the court was required to credit the evidence tending to show
8
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
8
No. 2018AP2107
Terrance’s “actual” earnings.9 But, in Dawn’s view, the available evidence on this
issue is not entitled to equal weight. Rather, she accuses Terrance of lying about
his $4,000 monthly income from his then-current employment with TP Timber,
and she asserts the court was instead required to set Terrance’s “actual income
available for child support” at the three-year average of his annual business
earnings from prior years—namely, $193,686.
¶17 As a legal matter, Dawn correctly observes that a court may consider
earning capacity for child support purposes only if it has concluded that the parent
is “shirking.” Chen v. Warner, 2005 WI 55, ¶20, 280 Wis. 2d 344, 695 N.W.2d
758. However, Dawn omits any meaningful analysis of what it means to find
“shirking” by a parent. As our supreme court explained, a court is “not required to
find that a former spouse deliberately reduced earnings to avoid support
obligations or to gain some advantage over the other party.” Id. Rather, it need
only be found that a party’s employment decision to reduce or forgo income is
voluntary and unreasonable under the circumstances. Id.¶18 Dawn is correct that the circuit court did not specifically find
“shirking”—at least in her general, undefined sense.10 But it did clearly find that
9
It is worth emphasizing that Dawn’s argument repeatedly begs the very question of
what Terrance’s “actual income” was as the time of trial by her presuming his actual income is
only discernable from pre-existing documents, such as years-old tax returns and child support
orders. This notion is simply false. Credited testimony is “evidence,” and it is clear Terrance’s
testimony was that his monthly income at the time of the trial was $4,000 each month, or $48,000
annually, from monthly checks mailed to him by his accountant.
10
Again, the only reason Dawn attacks the circuit court’s findings under the “shirking”
analysis is because she believes the court erred by using Terrance’s earning capacity as the
yardstick for his income. Typically, a finding that Terrance was shirking would benefit Dawn, as
it would increase the amount of income available for child support. Yet, Dawn proposes that
Terrance’s “actual” income was much greater than even the $58,000 in earning capacity found by
the circuit court. To achieve her desired result of having Terrance’s income set at approximately
(continued)
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No. 2018AP2107
there had been a downturn in the logging industry as of June 2017 that imperiled
Terrance’s business. Indeed, this fact was generally undisputed at trial.
Terrance’s equipment appraiser, Russ Hinsa, who had thirty-two years’ experience
in the logging equipment business, testified that “right now everyone is
struggling” with respect to slow paper and lumber markets. A wave of
consolidation had occurred; in Hinsa’s words, “[t]he small loggers are pretty much
being forced to work for larger loggers.” Even Dawn’s certified public accountant
testified that the logging market was depressed and wood prices were not doing
well. The issues for the court became whether to use Terrance’s earning
capacity—thus requiring it to find shirking—and, if so, how best to determine that
capacity.
¶19 Under these circumstances, the record adequately supports the
circuit court’s implicit finding of “shirking” in the sense that Terrance’s continued
employment with his business was both voluntary and unreasonable as compared
to his instead promptly liquidating the business’s assets and earning more income
by taking employment with a larger logging enterprise. See Town of Avon v.
Oliver, 2002 WI App 97, ¶23, 253 Wis. 2d 647, 644 N.W.2d 260 (“[W]e assume
the court implicitly made those findings necessary to support its decision, and we
accept those implicit findings if they are supported by the record.”). Although
Dawn does not address either of the “shirking” criteria, it cannot be reasonably
disputed that Terrance’s continued involvement with his business was voluntary.
The reasonableness of that employment, while a question of law, is reviewed using
a “more heightened appellate scrutiny than the highly deferential erroneous
$193,000, she must show both that the court erred by considering Terrance’s earning capacity and
that his asserted actual monthly income of $4,000 was incredible as a matter of law.
10
No. 2018AP2107
exercise of discretion standard of review,” because it is intertwined with factual
determinations. Chen, 280 Wis. 2d 344, ¶42.
¶20 Here, the circuit court clearly found that Terrance could be earning
more than the $4,000 per month that he testified he was making by immediately
shuttering the business and taking employment with a larger logging enterprise.
That course of action would have increased his annual income by approximately
$10,000, from $48,000 to $58,000. There was no evidence presented that the
logging market was likely to recover soon.11 Because the facts support the court’s
implicit findings of voluntariness and unreasonableness in terms of Terrance’s
failure to take employment with a larger logging enterprise, it was not error for the
court to use Terrance’s earning capacity upon the liquidation of his business rather
than his testified-to earnings as of the June 2017 trial.
¶21 Alternatively, even if there was error in the circuit court’s use of
Terrance’s earning capacity, it does not follow that the court was required to
accept the evidence Dawn now champions as establishing Terrance’s “actual”
income. The evidence she relies on was, by the time of the June 2017 hearing,
years old in most cases. The business tax returns were from 2013, 2014 and 2015;
Dawn ignores the undisputed testimony that the logging industry had experienced
a downturn since that time. Moreover, Dawn strangely criticizes the court for not
relying on Terrance’s “actual income” while simultaneously arguing the court
11
The only evidence that might have supported a contrary finding about TP Timber’s
future prospects was Hinsa’s testimony that “it [the market] can change, hopefully it will change
by this winter but right now everyone is struggling.” This statement was speculative and did not
indicate that Hinsa anticipated such a change. Nonetheless, we observe that if indeed market
forces changed Terrance’s fortunes vis-à-vis his business, the parties’ exchanges of financial
information would reveal that, and Dawn could then seek to modify child support.
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No. 2018AP2107
should have assigned an “average” income figure that was never shown to be
reflective of his actual income in 2017. Dawn’s accountant acknowledged he did
not know what Terrance’s 2016 income would look like. Dawn also relies on a
child support order entered in Terrance’s prior divorce action showing that
Terrance was capable of earning approximately $13,813 monthly. That order was
entered in 2013—nearly four years before the July 2017 evidentiary hearing in this
action.
¶22 For the same reasons, we reject Dawn’s challenge to the circuit
court’s determination of Terrance’s earning capacity for maintenance purposes.
The “starting point is the general rule that a court should consider the parties’
financial circumstances as they exist at the time the court makes or modifies a
maintenance award.” Woodward v. Woodward, 2005 WI App 65, ¶6, 281 Wis. 2d
217, 696 N.W.2d 221. Again, Dawn suggests the court was required to establish
an income for Terrance of $193,686, which was the three-year average cash flow
for TP Timber between 2013 and 2015. For the reasons already stated, the court
did not erroneously exercise its discretion when it set Terrance’s earning capacity
as of June 2017 at the wage for a first-line logging supervisor in northwestern
Wisconsin.
¶23 Dawn also argues the circuit court erred by failing to consider the
purposes for maintenance and all of the statutory factors to consider when setting
maintenance. When determining whether maintenance is appropriate, a court can
look at a variety of circumstances set forth by statute, including the length of the
marriage, the parties’ ages and health, the parties’ earning capacities, and the tax
consequences to each party. See WIS. STAT. § 767.56(1c)(a)-(j). These factors are
designed to further the two distinct goals of maintenance: support and fairness.
Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶29, 269 Wis. 2d 598, 676 N.W.2d
12No. 2018AP2107
452. The court need not consider all of the statutory factors, but it must consider
those that are relevant. DeLaMatter v. DeLaMatter, 151 Wis. 2d 576, 586, 445
N.W.2d 676 (Ct. App. 1989).
¶24 Dawn accuses the circuit court of ignoring her significant living
expenses reflected on her financial disclosure statement. Dawn apparently
believes the court was required to order maintenance at a level that would cover all
of her expenses. However, Dawn cites no authority for such a proposition; at
most, the feasibility that the party seeking maintenance can become
self-supporting at the standard of living enjoyed during the marriage is but one
factor among many in addressing the maintenance issue. Additionally, her
argument ignores that Terrance’s financial disclosure form also showed monthly
expenses that outpaced his claimed income.12
II. Property Division
¶25 The first task when dividing a marital estate is to determine what
property is subject to division. “The general rule is that assets and debts acquired
by either party before or during the marriage are divisible upon divorce.” Derr v.
Derr, 2005 WI App 63, ¶10, 280 Wis. 2d 681, 696 N.W.2d 170; see also WIS.
STAT. § 767.61(2)(a). When a party to a divorce asserts that property is not
subject to division, that party has the burden of showing the property is
12
Dawn also cites the circuit court’s property division in asserting the amount of
maintenance was erroneous. Although maintenance and property division are somewhat
intertwined, see Bahr v. Bahr, 107 Wis. 2d 72, 80, 318 N.W.2d 391 (1982), Dawn’s argument on
this point is undeveloped, and we will not consider it, see State v. Pettit, 171 Wis. 2d 627, 646,
492 N.W.2d 633 (Ct. App. 1992). Dawn does not explain why the property division required the
court to order an increased amount of maintenance.
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No. 2018AP2107
nondivisible at the time of divorce, Derr, 280 Wis. 2d 681, ¶11, such as by
showing that the property was an inheritance or was a gift, see § 767.61(2)(a).
¶26 Dawn notes that the parties significantly disagreed about the total
value of the marital estate. She accuses the circuit court of ignoring her “physical
evidence or expert appraisals,” and of providing an insufficient explanation for
why it adopted Terrance’s proposed division and valuation. She specifically
focuses on four aspects of the division with which she disagrees: (1) the value of,
and divisibility of, certain items of the parties’ personal property; (2) the value of
the parties’ real property; (3) the value of certain items Dawn claims are “missing”
from the marital estate; and (4) the value of the business bank accounts. She also
challenges the court’s unequal division of the marital estate.
A. Personal Property
¶27 At trial, Dawn presented an appraisal by Robert Paffel of the parties’
personal property.13 Terrance generally agreed with the appraisal, but he made
line edits to the appraisal form where he contended the property was either not
owned by the parties, was not divisible, or had a value different than that which
Paffel had assigned. In general, Terrance asserted various firearms in the
basement of the marital residence had been gifted to him, essentially reducing the
value of the basement items by half of Paffel’s assigned value of $7,530. Terrance
also disagreed about the value of certain vehicles in the garage, asserting they
were worth $18,545 less than the $107,205 value Paffel had assigned.
13
Although Terrance criticizes Dawn for not calling Paffel to testify, it was stipulated at
trial that appraisals could be received into evidence without having to call the appraisers that
prepared them.
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¶28 Dawn argues the circuit court erroneously relied on Terrance’s
opinion of the value and divisible nature of these items. In essence, she claims the
court had no choice but to divide all the assets Paffel identified at the values he
assigned to them. This is not the law. A non-expert owner of property may
generally testify concerning the value of his or her personal property. Trible v.
Tower Ins. Co., 43 Wis. 2d 172, 187, 168 N.W.2d 148 (1969). The owner is
certainly competent to testify whether a specific item was a gift and is therefore
nondivisible. See Derr, 280 Wis. 2d 681, ¶10. The weight to be given that
testimony is for the trier of fact, and its findings will not be reversed unless they
are clearly erroneous. Liddle v. Liddle, 140 Wis. 2d 132, 136, 410 N.W.2d 196(Ct. App. 1987). Dawn’s mere disagreement with the court’s factual findings does
not render them clearly erroneous.
B. Real Property
¶29 At trial, Dawn also presented appraisals of the parties’ various real
estate holdings. The parties owned the marital residence and four vacant
properties, and although Terrance valued the vacant land slightly differently than
the appraisal, Dawn only challenges the parties’ disagreement regarding the
marital residence on appeal. Dawn asserts the marital residence should be valued
at $195,000, which is the value indicated on the appraisal for that property. In
accepting Terrance’s valuation, the circuit court determined the property was
worth $169,400.
¶30 Again, the circuit court, sitting as trier of fact, did not erroneously
resolve the parties’ dispute regarding the value of the marital residence. The
appraisal acknowledged a problem with the home’s foundation. Terrance testified
that the basement wall was caving in, the garage floor was broken, and the frost
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No. 2018AP2107
wall in the garage was heaved. Terrance testified he did not know whether the
appraisal’s final value determination took into account the needed foundation
repairs, which the appraisal estimated would cost $25,600.14 Although Dawn
challenges the value ultimately assigned by the court, nowhere does she indicate
that in valuing the property the appraisal did, in fact, take into consideration the
$25,600 in needed work. In short, Dawn has not demonstrated that the court’s
valuation of the martial residence was clearly erroneous.
C. “Missing” Items
¶31 When Dawn introduced the Paffel appraisal, she testified there were
certain items Paffel could not locate that should have been included in the marital
estate, including an off-road vehicle, a bulldozer, jewelry, some firearms, a work
truck, and a toolbox. Dawn testified that December 2015 was the last time she
saw the firearms and the toolbox and that the jewelry was a gift from Terrance’s
mother to the children. Terrance admitted to owning the off-road vehicle but
denied owning other items; he specifically testified that the bulldozer, a firearm,
and a toolbox had been either sold to pay bills or traded for services. Dawn did
not submit any evidence tending to show the “missing” items actually existed, nor
did Terrance submit any evidence supporting the notion that the items he
acknowledged owning in the past had actually been sold or traded.
¶32 Given that the matter was purely one of competing testimony, we
must accept the circuit court’s credibility finding. The court specifically found
that as to matters involving the property division, Terrance was more credible than
14
Again, the appraiser did not testify at trial, by stipulation of the parties. See supra ¶27
n.13.
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No. 2018AP2107
Dawn. When a circuit court’s conclusions are based on the court’s credibility
findings, we generally accept those determinations. State v. Quarzenski, 2007 WI
App 212, ¶23, 305 Wis. 2d 525, 739 N.W.2d 844. Such deference is appropriate
because the court has the opportunity to observe the witness’s demeanor and
gauge the persuasiveness of his or her testimony. Jacobson v. American Tool
Cos., 222 Wis. 2d 384, 390, 588 N.W.2d 67 (Ct. App. 1998).
D. Bank Accounts
¶33 Dawn also argues it was an “abuse of discretion” for the circuit court
to accept Terrance’s representations as to the value of the business bank
accounts.15 Terrance testified he had three bank accounts: (1) a personal checking
account worth $619; (2) a TP Timber business checking account worth $130,446;
and (3) a business savings account worth $2,817. Dawn argues the court could not
have accepted this testimony because Terrance provided “zero evidence of proof
of the balance of those accounts.”
¶34 In contrast, Dawn presented two bank statements dated October
2015, contending they more accurately represented the value of the business
accounts. Those statements showed the value of two accounts, one worth
approximately $301,872 and one worth approximately $127,332. Dawn argues
the court should have “use[d] the values of accounts provided by those exhibits
since those bank statements provide the greater weight of credible evidence to the
15
Our supreme court substituted the phrase “abuse of discretion” with the phrase
“erroneous exercise of discretion” decades ago. See King v. King, 224 Wis. 2d 235, 248 n.9, 590
N.W.2d 480 (1999).
17
No. 2018AP2107
value of those accounts rather than [Terrance’s] testimony, and [are] supported by
the expert witness testimony [as] to the cash available.”
¶35 Dawn ignores the fact that, by the time of the June 2017 trial, the
bank statements she introduced were over one and one-half years old. It is
undisputed that Terrance continued operating the logging business during this
time. Because Dawn’s financial information was stale, the circuit court could
reasonably accept Terrance’s testimony as to the current value of those deposit
accounts. Moreover, Dawn acknowledged at trial that Terrance had given her
authorization to get account information directly from the bank. Dawn testified
she had not used that authority to review any transactions from the various
accounts since the October 2015 statements were generated.
¶36 Dawn posits that because Terrance did not specifically explain what
money he had withdrawn from the accounts between October 2015 and the time of
trial, he must have committed misconduct by disposing of or hiding assets. Under
WIS. STAT. § 767.63, there is a rebuttable presumption that assets transferred for
inadequate consideration, wasted, given away, or otherwise unaccounted for by
one of the parties within one year of the filing of the divorce petition are subject to
division. It appears the party asserting assets were “wasted” bears the burden of
proof on that issue. See Derr, 280 Wis. 2d 681, ¶66.
¶37 Here, Dawn did not present any evidence tending to show “waste” or
an inexplicable diminution in marital assets. Again, it is undisputed that Terrance
continued operating his logging business during a downturn in the industry.
Moreover, he testified in detail about his monthly expenses, which he calculated to
be approximately $23,000 after accounting for personal expenses and debt service
to business and vehicle lenders. When asked how he was making those payments
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No. 2018AP2107
on a $4,000 monthly income, Terrance testified the difference was coming from
the business bank accounts. This testimony both explained the diminished bank
accounts and further supports Terrance’s statement of his income, such that the
circuit court did not clearly err by setting the value of the bank accounts in line
with Terrance’s testimony.
E. Unequal Division
¶38 More broadly, Dawn asserts the circuit court failed to sufficiently
explain its decision to deviate from the presumption of an equal division of
property. Her argument on this point is cursory; she argues the court cited only
one factor in deciding upon an unequal division, which was the tax consequences
to the parties. She also claims there was not sufficient evidence of any tax
consequences stemming from the division to warrant consideration of that factor.
¶39 Besides Dawn’s argument being largely undeveloped, it also fails on
the merits. There is a presumption of equal division, but a circuit court may alter
that presumption after considering a litany of factors, as applicable. See WIS.
STAT. § 767.61(3). Here, the court specifically took note of these factors when it
began its analysis of the property division, focusing specifically on the length of
the marriage and the property brought to the marriage by each party. See
§ 767.61(3)(a), (3)(b).
¶40 During its analysis, the circuit court observed that Terrance had
brought his business and the marital residence into the marriage, while Dawn had
brought into the marriage a car and about $17,000. Terrance started TP Timber in
2004 and brought vehicles and business equipment into the marriage. He built the
marital residence in 2002 while he was married to his first wife. The court also
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No. 2018AP2107
noted that Terrance and Dawn’s marriage was a “medium” term of about nine
years.
¶41 There was also evidence from which the circuit court could
reasonably conclude that, although Terrance was receiving a slightly more
favorable division on paper, he would not fully realize the amount allocated to
him. Dawn’s accountant testified at trial that Terrance had taken a full deduction
on some equipment in the year it was purchased, rather than depreciating it
annually. As a result, Terrance asserted he would be required to recapture a
certain amount of depreciation upon the sale of the equipment, further reducing
the amount Terrance would receive. This proposition went unchallenged by
Dawn; indeed, she conceded it was “probably true.”16
¶42 In all, we conclude the circuit court did not erroneously exercise its
discretion by ordering an unequal division of the marital property. The deviation
was minimal (again, Terrance received 52.5% of the net estate, while Dawn
received 47.5%), and it was adequately explained by the court, as shown above.
The court acknowledged the appropriate law, including the presumption of equal
division; considered those factors it deemed to be relevant when ordering an
unequal division; and reached a reasonable conclusion.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
16
We take no position on whether the circumstances here would, in fact, require
Terrance to abide by recapture rules as a result of the sale of his business equipment, as that issue
has not been briefed by the parties.
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