COURT OF APPEALS DECISION DATED AND FILED January 10, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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In re the marriage of: Michael P. Mullen,
Petitioner-Appellant, v. Debrah A. Mullen,
Respondent-Respondent. |
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APPEAL
from a judgment and order of the circuit court for
Before Higginbotham, P.J., Lundsten and Bridge, JJ.
¶1 PER CURIAM. Michael Mullen appeals a judgment divorcing him from Debrah Mullen and an order denying his motion for reconsideration. He argues that: (1) the circuit court erroneously exercised its discretion in awarding maintenance; (2) the circuit court’s valuation of his car was clearly erroneous; (3) the circuit court should have included money he gave Debrah for housing in the property division; and (4) Debrah over-tried her inheritance claim. We affirm.
¶2 Michael contends that the circuit court erroneously exercised its discretion in awarding Debrah $1000 per month in maintenance. He contends that the circuit court failed to consider the fact that he lacks job security because the company he works for recently lost a large client. The record belies this argument. According to the testimony of Michael and his boss, Michael’s company lost a large client and has had to lay off employees, but neither testified that the company was going to close or that Michael’s job in particular was in jeopardy. The testimony also showed that Michael was an important employee, making it more unlikely that he would be laid off should the company be required to terminate more employees. More importantly, Michael would be able to return to court to seek an adjustment of the maintenance award if he were laid off because his job loss would likely constitute a substantial change in circumstances regarding his ability to pay maintenance. We reject Michael’s challenge to the maintenance award.
¶3 Michael also argues that the maintenance award is unfair because he earns more than Debrah only because he works substantially more than forty hours a week, while Debrah works only forty hours a week. The problem with this argument is that, as Michael acknowledges, the amount of a maintenance award is committed to the circuit court’s discretion and Michael cites no authority for the proposition that the circuit court must base a maintenance award on the hypothetical earnings of the parties had they worked the exact same number of hours per week. We conclude that the circuit court properly exercised its discretion in basing its maintenance decision on the amounts the parties actually earned in their respective jobs, regardless of the fact that Michael’s job is more demanding in terms of the number of hours he must work.
¶4 Michael next argues that the circuit court erred in valuing
his Ford Explorer at $11,500. “[T]he
valuation of marital assets is a finding of fact which we will not upset unless
clearly erroneous.” Liddle v. Liddle, 140
¶5 Michael contends that the valuation he provided of $10,055
was the only reasonable valuation in the record so the circuit court should
have accepted his valuation. This
argument fails because there were other reasonable valuations in the record on
which the circuit court could rely. Values
for the vehicle ranged as high as $14,935.
Michael criticizes Debrah’s valuation of $11,150, contending that it is
based on a source that does not establish the fair market value, but does not adequately
explain why Debrah’s valuation, which
is from the National Automotive Dealers Association, is not indicative of fair
market value. We conclude that the
circuit court’s determination that the fair market value of the car was $11,500
is not clearly erroneous.
¶6 Michael next argues that the $2800 he gave Debrah pursuant to the court commissioner’s temporary order for her first month’s rent and security deposit should have been considered an advance on the property division. The court commissioner’s temporary order required Debrah to vacate their home and required Michael to borrow $2800 for Debrah’s first month’s rent and security deposit, leaving responsibility for the loan payments to be determined at a future date. The circuit court included the debt in the property division, but did not credit Debrah with having a $1400 asset being held by her landlord in the form of a security deposit. The court reasoned that “[t]he security deposit is not an ‘asset’ of the marriage … it is a sum of money controlled by a landlord with no guarantee and/or assurance that it will be paid to Ms. Mullen.” Debrah argued that she was entitled to the money on equitable grounds because she did not receive temporary maintenance. We conclude that the circuit court’s decision is sustainable on equitable grounds because Debrah did not receive temporary maintenance during the period when Michael was ordered to pay her security deposit and first month’s rent.
¶7 Finally, Michael argues that Debrah over-tried her claim that an inheritance she received was not marital property. He contends that Debrah should have known that her argument was meritless based on Derr v. Derr, 2005 WI App 63, 280 Wis. 2d 681, 696 N.W.2d 170.
¶8 “Overtrial is a doctrine developed in family law cases that
may be invoked when one party’s unreasonable approach to litigation causes the
other party to incur extra and unnecessary fees.” Zhang v. Yu, 2001 WI App 267, ¶13,
248
¶9 The court found as a matter of fact that there was no excessive litigation, noting that both parties were well represented and this “was one of those cases … that presented the facts [and] presented the required analysis ….” Based on our review of the record, this finding of fact is not clearly erroneous. The court also concluded that, given the award of maintenance and the equal property division, it would be fair for both parties to be responsible for their respective attorney’s fees. Implicit in the circuit court’s comments is the notion that Debrah’s inheritance argument, while weak under Derr, was not significant in the larger scheme of things. The circuit court properly concluded that there was no overtrial in this case.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.