COURT OF APPEALS DECISION DATED AND FILED October 26, 2010 A.
John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT III |
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In re the marriage of: Stephen W. Smith,
Petitioner-Respondent, v. Anna A. Smith,
Respondent-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Anna Smith appeals from a divorce judgment. She argues the circuit court erroneously exercised its discretion with regard to the property division and maintenance determinations. We agree and therefore reverse and remand for further proceedings.
¶2 Anna and Stephen Smith were married on December 31, 2001, and divorced December 9, 2008.[1] At the time of the divorce, both parties were approximately fifty-eight years old and in good health. Anna worked part-time at Wal-Mart and Stephen was an electrician.
¶3 At the final hearing, evidence valued the marital home between $89,900 and $101,000. The circuit court found its value at the time of divorce $90,000 subject to a $10,000 mortgage. The court found the home was “property [Stephen] brought into the marriage, and it’s not going to be divided.” The court also excluded the $14,177.14 value of Stephen’s pension as of the date of the 2001 marriage, but divided the remaining portion of the pension and a 401K account as marital property. The court further ordered $75 weekly maintenance until Anna turned sixty-two years of age. Anna now appeals.
¶4 The division of property and the awarding of maintenance
rests within the sound discretion of the circuit court. LeMere v. LeMere, 2003 WI 67, ¶13,
262
¶5 Anna argues the circuit court erroneously exercised its discretion in the property division regarding the marital home and the pension account. Anna insists these assets, although acquired prior to the marriage, are nonetheless subject to the presumption of equal division. Anna further argues Stephen failed to overcome the presumption of equal division.
¶6 The LeMere court emphasized, “The text
of [Wis. Stat. § 767.61(3)]
now explicitly requires that any deviation from the presumptive equal property
division be based upon consideration of all the statutory factors.” LeMere, 262
This is not to say that the circuit court is precluded from giving one statutory factor greater weight than another, or from concluding that some factors may not be applicable at all. Property division in divorce remains a discretionary decision of the circuit court, but the record must at least reflect the court’s consideration of all applicable statutory factors before a reviewing court can conclude that the proper legal standard has been applied to overcome the presumptive equal property division under [Wis. Stat. § 767.61(3)]. Circuit courts must subject requests for unequal division of property to the proper statutory rigor. The failure to do so is an erroneous exercise of discretion.
¶7 Here, we find insufficient support in the record for the circuit court’s conclusion that the marital home “was property brought into the marriage, it’s not going to be divided.” The court did not explain its rationale and we cannot determine to what extent it considered any statutory factors in reaching an unequal distribution regarding the marital home. We therefore conclude the court erroneously exercised its discretion regarding property division. We reverse and remand for further proceedings. Upon remand, the court in its discretion may determine that it is appropriate to deviate from the presumption of equal division, but it must do so by application of the proper legal standard.
¶8 Anna also contends the court “misapplied the law in not
dividing the full value of Stephen’s retirement accounts .…” Anna argues Stephen failed to present
evidence as to the value of the accounts “at the time the parties were first
married in 1995.” Anna insists the
circuit court was “required to include not only the present marriage of the
parties between 2001 and 2009 but also the prior marriage between the parties
from 1995 to 2000.” Anna is
incorrect. When parties have been
married to one another more than once, the circuit court may in its discretion,
but is not required to, look at the total number of years of the marriage. Wolski v. Wolski, 210
¶9 Anna also argues the circuit court erroneously exercised its
discretion in awarding maintenance. She contends the court failed to adequately
consider the support and fairness objectives of maintenance. Anna also insists the court “paid lip service
to the statutory factors ….” We conclude
that although the court mentioned statutory factors, including the parties’ ages
and the disparity in income, the court inadequately explained the connection
between those factors and its award of $75 per week to age sixty-two. Nor can we determine to what extent the
court’s decision on maintenance considered the “twin goals” of maintenance:
support and fairness. See LeMere, 262
By the Court.—Judgment reversed and cause remanded for further proceedings.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.