COURT OF APPEALS DECISION DATED AND FILED September 4, 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 IV |
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In re the marriage of: Sue A. Worm,
Petitioner-Appellant, v. Gerald W. Worm,
Respondent-Respondent. |
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APPEAL
from a judgment and an order of the circuit court for
Before Higginbotham, P.J., Dykman and Vergeront, JJ.
¶1 PER CURIAM. Sue Worm appeals from a divorce judgment dividing marital property between Sue and Gerald Worm and from an order denying her motion to reopen and reconsider that judgment. Sue argues that the trial court erred in dividing the marital property according to the appraised values because it resulted in the trial court unequally dividing the marital property without considering the required statutory factors. Sue also argues that the trial court erred in denying her motion to reopen and reconsider the judgment because the trial court relied on false and misleading testimony in dividing the property as it did. We conclude that Sue’s arguments lack merit and therefore affirm.
Background
¶2 The trial court held a hearing in the divorce of Sue and Gerald Worm on the disposition of the parties’ marital property, including a parcel of hunting land, the marital homestead, and an adjacent lot. R-49:70. Both parties requested the hunting land, and presented evidence as to their attachment to that land. A single appraisal of each parcel of property was entered into evidence, and the trial court adopted those values. The circuit court awarded the hunting land to Gerald and the home and the lot to Sue. After accounting for the division of all the marital property and debt, the trial court awarded Gerald an equalization payment of $6,400.
¶3 Sue moved the trial court to reopen and reconsider the judgment pursuant to Wis. Stat. § 806.07 (2005-06).[1] Sue based her motion on her assertion that a witness for Gerald had provided false and misleading testimony regarding Gerald’s personal attachment to the hunting land which led the circuit court to make inaccurate factual findings upon which it relied in awarding Gerald the hunting land. The court denied the motion. Sue appeals.
Standard
of Review
¶4 The division of marital property in a divorce case is a
discretionary decision left to the circuit court. Dutchin v. Dutchin, 2004 WI App 94,
¶10, 273
¶5 A property valuation determined by the trial court is a
finding of fact, which will be upheld on appeal unless clearly erroneous. Wis. Stat.
§ 805.17(2); Noble v. Noble, 2005 WI App 227, ¶15, 287
Discussion
¶6 Sue argues that the trial court erred in unequally dividing the marital property between Sue and Gerald without considering the required statutory factors. Gerald responds that the circuit court was not required to consider the statutory factors because the circuit court divided the property equally. We agree with Gerald.
¶7 In
¶8 Here, however, the circuit court did not deviate from an equal division of property. After dividing all marital property and subtracting all shared debts, the circuit court determined that Sue’s awarded assets amounted to $66,978.82 and Gerald’s awarded assets amounted to $51,634.81. The circuit court divided the sum of these and determined that an equal division would amount to $59,306.82 for each party. After subtracting for other amounts Gerald owed to Sue, the circuit court ordered Sue to pay Gerald $6,400 to create an equal division of property. The circuit court, therefore, was not required to consider the factors listed in Wis. Stat. § 767.61(3).
¶9 Sue argues, however, that the trial court erred in valuing the hunting land and the homestead, thus rendering the property division unequal. Sue asserts that, because both parties were willing to pay more for the hunting land than the appraised amount, the trial court erred in relying on the appraisal amount in valuing the land. She claims that the trial court erroneously relied on “a stipulation on value which did not exist in the record,” and that by accepting the appraised value, the trial court unequally divided the assets. Regarding the valuation of the marital homestead, Sue argues that, since she wanted to sell the property and Gerald had no interest in keeping it, the market should have determined the homestead’s value. She asserts that the circuit court’s erroneous acceptance of the appraised value further unbalanced the property division in Gerald’s favor. We disagree.
¶10 Contrary to Sue’s assertions, the trial court made a proper
factual determination of the valuation of the homestead and the hunting land. The record contained a single appraisal of
each property. Sue testified that she
would have no problem with the circuit court awarding the marital homestead at
the appraised value, and both parties testified that the hunting land was worth
at least the appraised value. Based on
the land appraisals and the above testimony, a reasonable fact finder could
find that the hunting land and the marital homestead had values equal to those
of the appraisal values. See Noble, 287
¶11 Sue argues next that the circuit court erred in denying her motion to reopen and reconsider the judgment. However, the record reveals that the circuit court properly exercised its discretion in denying the motion. After a hearing on the motion, the circuit court found that there had been no misrepresentation during the trial. Sue has offered no basis to overturn the circuit court’s factual findings and credibility determinations. Accordingly, we affirm.[2]
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] In
his response brief, Gerald asks that we find
Sue’s appeal frivolous. However, Gerald
did not separately move this court to find the appeal frivolous, and we
therefore cannot do so. See Howell v. Denomie, 2005 WI 81, ¶19,
282