COURT OF APPEALS
DECISION
DATED AND FILED
August 12, 2009
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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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In re the marriage of:
Donna L. Townsend,
Petitioner-Respondent,
v.
Gary L. Townsend,
Respondent-Appellant.
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APPEAL
from a judgment of the circuit court for Kenosha County: anthony
g. milisauskas, Judge. Affirmed.
Before Brown, C.J., Anderson and Snyder, JJ.
¶1 PER CURIAM. Gary L. Townsend appeals from the
property division and maintenance portions of a judgment of divorce. Specifically, he contends that only the
portion of his pension that accrued during the ten-year marriage should have
been subject to equal division and that the trial court erred in awarding
limited maintenance to his former wife, Donna L. Townsend. We conclude that neither determination
constitutes an erroneous exercise of the court’s discretion. We affirm.
¶2 Gary and Donna married in 1997 and divorced in 2008. It was a second marriage for both. No children were born to the marriage. A court trial was held to determine property
division and maintenance. The parties
agreed on an equal property division save for Gary’s pension through Chrysler/AMC, where he
had been employed since 1970. Gary sought equal division
of only the amount accrued during the marriage, or $88,545. Donna sought equal division of the entire
thirty-eight-year accumulation, or $298,835.
The trial court ordered an equal division of all property, including Gary’s full pension. It also ordered Gary to pay Donna maintenance of $1200 per
month for three years. Gary appeals.
1. Property division
¶3 Gary
argues that the fifty-fifty division of his entire pension was an erroneous
exercise of discretion. He contends that
the trial court did not consider that he contributed a substantial amount to it
before the marriage, which he characterizes as short-term. Gary
also asserts that the trial court incorrectly reasoned that an equal division of
the marital estate was warranted because he benefited from money Donna’s
parents contributed throughout the marriage.
¶4 At divorce, all property except that acquired by gift or
inheritance is part of the marital state and is presumed subject to equal
division. Hokin v. Hokin, 231 Wis. 2d 184, 191-92, 605
N.W.2d 219 (Ct. App. 1999). The court
may alter the equal distribution after considering various factors. Id.
at 193; see also Wis. Stat. § 767.61(3)(a)-(m) (2007-08). Property division is a matter within the
sound discretion of the trial court and we will uphold its decision if the
court examined the relevant facts, applied a proper standard of law and, using
a demonstrated rational process, reached a conclusion a reasonable judge could
reach. LeMere v. LeMere, 2003 WI
67, ¶13, 262 Wis.
2d 426, 663 N.W.2d 789. We accept the
trial court’s findings of fact unless they are clearly erroneous. Wis.
Stat. § 805.17(2). Whether the trial
court applied the correct legal standard is a question of law we consider de
novo. Landwehr v. Landwehr,
2006 WI 64, ¶8, 291 Wis.
2d 49, 715 N.W.2d 180.
¶5 A spouse’s entire interest in a pension, whether existing
before the marriage or acquired during it, is part of the marital estate. Hokin, 231 Wis. 2d at 193. The premarital component of the plan is in
the nature of property brought to the marriage, a factor possibly relevant as
to how the asset should be divided, but not as to whether it should be. Rodak v. Rodak, 150 Wis. 2d 624, 630, 442
N.W.2d 489 (Ct. App. 1989). A coverture
fraction—the length of the marriage divided by the “owning” spouse’s total
years in the plan—may be an appropriate way to divide a pension as part of the
overall property division. See Hokin, 231 Wis. 2d at 189, 194. Gary
contends that because the marriage was only ten of the thirty-eight years he
held the pension, a coverture fraction should have been used and subjecting the
entire pension to a fifty-fifty division was error.
¶6 The court found that Donna brought approximately $28,000 to
the marriage from the sale of her premarital home while Gary contributed about
$5400 from the sale of his; that Donna’s and Gary’s gross incomes were
approximately $43,000 and $88,000, respectively; that both parties generated
the fairly significant credit card debt; and that they equally benefited from
the considerable monetary gifts from Donna’s parents throughout the marriage.
Based on the shared lifestyle the money
gifts afforded, their similar approach to spending, the parties’ undisputed
economic partnership and the total financial picture, the court reasoned that Gary’s entire pension
should remain part of the divisible property.
¶7 Gary
argues, however, that “property given to one party as a gift remains that
party’s property and cannot be divided by the court.” See Grumbeck v. Grumbeck, 2006 WI App
215, ¶6, 296 Wis.
2d 611, 723 N.W.2d 778; see also Wis. Stat. § 767.61(2)(a). Gary
misapplies the teaching of Grumbeck. There, the husband was gifted shares of his
family’s corporation which he kept separate from the marital estate. See Grumbeck,
296 Wis. 2d
611, ¶¶2, 9-10. At the dissolution of
the forty-one-year marriage, the trial court deviated from the presumptive
equal division of the marital estate and awarded the parties equal shares of
the value of the gross combined marital estate, including gifted property. Id.,
¶4. In other words, the trial court
recognized that the gifted assets were not divisible but then, despite no
finding of hardship, fashioned an unequal split of the marital estate,
effectively nullifying the legislative intent to shield gifted assets. See
id.,
¶¶3, 11. We held that the trial court could
consider substantial gifted assets when dividing the marital estate but, absent
hardship, it could not skew the property division to work a de facto splitting
of those gifted assets. Id., ¶1; see also § 767.61(2)(b).
¶8 This case is not the same as Grumbeck, as Gary contends. Indeed, it is Grumbeck in reverse. Unlike in Grumbeck, the money gifts
from Donna’s parents never had any individual property aspect; even if they did,
they lost it when the parties poured the gifts into the marital estate for
their joint benefit. Contrary to Gary’s assertion, Grumbeck
did not “specifically reject[] dividing a pension in order to equalize gifts
made to the parties during their marriage.”
¶9 The court here considered each Wis. Stat. § 767.61(3) factor, one by one, thoroughly examining
the parties’ marital partnership and nearly equal division of duties, their financial
and non-financial contributions to the marriage, and the mutually enjoyed lifestyle
enabled by what the court termed “free money” from Donna’s parents. The court concluded that the presumptive
fifty-fifty split was not overcome. We
agree. “[I]nherent in the concept of a
presumption [is] that it must have weight.”
See Grumbeck, 296 Wis.
2d 611, ¶12. Therefore, absent special
circumstances demonstrating that some unfairness would result from equal
division—and Gary
offers none—the presumption should stand.
See id. In some cases an
emphasis on which party generated the assets making up the marital estate may
be appropriate. See Hokin, 231 Wis.
2d at 200. Here, however, equally dividing
Gary’s pension was
not an erroneous exercise of discretion.
2. Maintenance
¶10 The trial court also ordered Gary to pay Donna $1200 maintenance per month
for three years. Gary contends this was an erroneous exercise
of discretion because the court considered a single factor—Donna’s desire to
keep the marital home—and then “double counted” his 401(k) plan to accomplish
it. We disagree that the court’s focus
was so narrow or that it double counted.
¶11 The amount and duration of a maintenance award are matters
within the sound discretion of the circuit court. Meyer v. Meyer, 2000 WI 132, ¶15,
239 Wis. 2d
731, 620 N.W.2d 382. We will uphold the
trial court’s determination unless the court erroneously exercises its
discretion, which may occur if it makes an error in law or fails to base its
decision on the facts in the record. Id.
¶12 Before awarding maintenance, a court must consider the factors
set forth in Wis. Stat. § 767.56. The court here did. It awarded Donna the 401(k) after finding
that Donna’s desire to remain in the house the couple had built was “part of
the reason” she sought maintenance; that Gary testified that he wanted Donna to
stay there; and that refinancing was the only way she could do so. It also found that the parties have different
earning capacities and that using the 401(k) to pay off the debts Gary currently
was paying would enable him to pay the ordered maintenance so that Donna could
refinance the home and become self-supporting.
These findings are not clearly erroneous.
¶13 Further, we fail to see how this is “double counting.” “Double counting” is counting as income for
maintenance or child support purposes the payout from or distribution of an
asset the value of which has been included in the property division. Hokin, 231 Wis. 2d at 203. Donna was awarded the 401(k) in the property
division with the directive that she pay the credit card and Wis. Stat. ch. 128 debts in full by
August 31, 2008. Freed of those
obligations, Gary
then could pay maintenance. The court
did not consider the 401(k) as income for maintenance. Like the trial court’s property division determination,
its maintenance determination represents a proper exercise of discretion. Both are supported by the facts of record and
apply the proper law. We affirm.
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.