COURT OF APPEALS DECISION DATED AND FILED December 23, 2008 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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
from an order of the circuit court for
¶1 BROWN, C.J.[1] Bruce A. Findley did not make a timely property division payment of $162,500, in accordance with the divorce judgment. His former wife, Ellen V. Gibbons, brought an order to show cause why he should not be held in contempt, but the family court found that his once lucrative business had gone belly-up through no fault of his own, that he did not have the ability to pay and that the circumstances did not show a willful intent to avoid payment. Gibbons appeals, arguing that, instead of pouring funds into the business in an attempt to keep the business afloat, Findley should have thought about his former wife first, should have closed the business down while he still had the assets, and his failure to do so was “unreasonable” and amounted to “shirking.” But Gibbons is wrong on the law. This is not a case governed by the shirking analysis that takes place in support and maintenance cases. This is a property division case and the touchstone questions are whether there was ability to pay and whether nonpayment was willful with intent to avoid payment. We uphold the family court’s determinations.
¶2 The first thing this court noticed when reading Gibbon’s
brief-in-chief is that nowhere was the standard of review cited. This was disconcerting because the standard of
review drives the result in contempt cases.
In his response brief, Findley properly stated the standard of
review. A circuit court’s use of its
contempt power is an exercise of judicial discretion. Monicken v. Monicken, 226
¶3 After Findley’s responsive brief noted Gibbons’ failure to cite the standard of review in her brief-in-chief, Gibbons addressed it in her reply brief. Her theory goes something like this: Yes, a circuit court’s exercise of contempt power is an exercise of its judicial discretion, and yes, findings of fact are subject to the clearly erroneous rule. But, this contempt case has elements of shirking, so the issue is really whether Findley’s pouring funds into his business in an attempt to save it was “reasonable” considering that his primary duty was to pay his former wife. Therefore, her theory continues, the family court failed to address the facts under this aspect of the law. Thus, she concludes, the family court misused its discretion.
¶4 Let us start by examining what “shirking” is. Shirking exists “where the obligor
intentionally avoids the duty to support or where the obligor unreasonably
diminishes or terminates his or her income in light of the support obligation.” Van Offeren v. Van Offeren, 173
¶5 But the lack of such cases aside, the major problem with
using “shirking” law in this case is that the missed payment was part of the
property division payment. It was not
for maintenance. Gibbons waived maintenance. Nonetheless, Gibbons underscores the
following language in the marital settlement agreement, incorporated by
reference in the divorce judgment, to make her case. There, the agreement stated that Findley was
to pay her $950,000 cash in stated increments. The end of the section including this part of
the agreement stated that the payments “are in the nature of support for wife
and, as such, are non-dischargeable in bankruptcy.”
¶6 Using this language as the bait, she attempts to convince this court that this is really a spousal support case, not a property division case. But we reject her argument for two reasons. First, she never argued to the family court that this was a spousal support case rather than a property division case and was therefore governed by shirking law. She raises this for the first time on appeal and we do not address arguments made for the first time on appeal. Our job is to review judicial conclusions based on the arguments that were made.[2] Second, we agree with Findley that the language was for the purpose of addressing any future attempt at bankruptcy and was intended to help a bankruptcy judge decide nondischargeability. This is a property division case. Shirking law does not apply.
¶7 The law that does
apply is the law we alluded to at the beginning. The questions are two-fold: (1) whether the person is able to pay; and (2)
whether the refusal to pay is willful and with intent to avoid payment. Benn v. Benn, 230
By the
court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(h) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] We
have scoured the transcripts from the motion hearings and the parties’
subsequent proposed findings of facts and conclude that Gibbons did not raise
this issue below with sufficient specificity.
To be sure, Gibbons did cite Van Offeren v. Van Offeren, 173