COURT OF APPEALS DECISION DATED AND FILED November 22, 2011 A. John Voelker Acting 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 a judgment of the circuit court for Marathon County:� VINCENT K. HOWARD, Judge.� Affirmed.�
����������� Before Hoover, P.J., Peterson, J., and Thomas Cane, Reserve Judge.
�1������� PER CURIAM. Sheila Hess, pro se, appeals her divorce judgment.�� Sheila argues the circuit court erroneously exercised its discretion in the property division.� We affirm.
�2������� Sheila and Michael Hess began cohabitating in 1997, but were not married until February 14, 2005.[1]� The parties separated in May 2006, when Sheila moved out and purchased a condominium in Minneapolis.� A divorce action was commenced in April 2007, but subsequently dismissed following attempted reconciliation.� Another divorce proceeding was commenced on December 12, 2008, and a judgment of divorce was eventually granted on August 9, 2010.�
�3������� The circuit court incorporated a lengthy written decision into its findings of fact, conclusions of law and judgment of divorce.[2] �The court concluded that the parties had lived financially separate lives during both their cohabitation and marriage, and essentially awarded each party the property in their possession.� The court denied Sheila�s request for maintenance and a contribution toward her attorney fees.� The court also specifically found that Sheila had failed to provide a full exchange of financial information.� Sheila filed a motion to reconsider, which was denied pursuant to a written decision.� Sheila now appeals.[3]
� �4����� The division of property rests within the sound discretion of the circuit court.� LeMere v. LeMere, 2003 WI 67, �13, 262 Wis. 2d 426, 663 N.W.2d 789.� We will sustain a discretionary decision if the court examined the relevant facts, applied a proper standard of law, and using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.� Liddle v. Liddle, 140 Wis. 2d 132, 136, 410 N.W.2d 196 (Ct. App. 1987).� Findings of fact will be affirmed unless clearly erroneous.� Wis. Stat. � 805.17(2).[4]� Where there is conflicting testimony, the circuit court is the ultimate arbiter of the credibility of witnesses.� Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647 (1979).
�5������� Sheila first argues the circuit court erred �in making adverse findings regarding Sheila�s purported failure to make financial disclosures required under Wis. Stat. � 767.127.�� We conclude the record supports the court�s findings.� The record indicates that a financial disclosure statement was prepared by Sheila�s attorney before Sheila discharged him, but the document was not signed and was never admitted into evidence.� �Sheila failed to satisfy her obligation to provide the required disclosure under � 767.127, and the court�s adverse inference was appropriate.� See Wis. Stat. � 767.127(4).
�6������� Sheila also challenges the circuit court�s valuation of the Minnesota condominium she purchased in 2006 when she left the couple�s Mosinee residence.� Further, Sheila argues the court �erred in treating the $19,000 invested by the couple in the Minnesota property as Michael�s gifted funds.��
�7������� In its written decision concerning the divorce, the circuit court found that the only significant item of property acquired during the marriage was the condominium Sheila purchased, �but even that shows their separate financial lives.� When it was done, Sheila acted suddenly, secretly and independently, using funds from Michael�s gifted/inherited accounts.�� The court referenced a note from Sheila to Michael that stated, �I�m sure you are going to be very very mad at me but I hope you get over it, I borrowed money out of your account (or is it our account) to invest in the condo. � You�ll get it back. � P.S. I�m sorry I couldn�t talk to you about the money, I knew you would blow up about it.�� The court found:
Sheila had been able to transfer $24,000 from Michael�s account that represented property gifted to him by his parents into a joint account.� From that account she took $5,000 in cash and $19,000 by check.� Michael was able to stop payment on the check but the cash had been spent.� However, he eventually returned the $19,000 for the down payment so they would not lose that which was already invested in the transaction.
�8������� The circuit court further found that �[d]uring most of the proceeding there was at least a tacit agreement that Sheila owed the $24,000.�[5]� The court rejected Sheila�s argument that Michael�s reissuance of the $19,000 check demonstrated donative intent, and the court did not err in so doing.� Sheila contends that depositing gifted funds into a joint bank account creates a presumption of donative intent.� However, the record supports the court�s discretion in considering the gifted source of the $19,000 which Sheila converted for the condominium down payment.[6]� See Schwartz v. Linders, 145 Wis. 2d 258, 263, 426 N.W.2d 97 (Ct. App. 1988).�
�9������� At trial, the parties also disputed the value of the Minnesota condominium.� Although Sheila did not file a financial disclosure statement, the circuit court determined the evidence showed that Sheila�s purchase price in 2006 was $94,000.� The court stated in its written decision that Sheila�s sister testified the property had a present value of $26,000, which the court found �incredible and not worthy of belief.�� Sheila submitted a real estate sales report as an exhibit indicating a sale of a condominium for $33,000, but the record reveals no foundation for the report.� Moreover, the court noted Sheila had a $64,409 mortgage on her condominium, �after at least $19,000 paid from Michael�s account.�� The court reasoned there was no plausible explanation why the lender would lend double the amount its security was worth and therefore rejected the $33,000 value.
�10����� The circuit court acknowledged that the condominium�s value declined, but indicated the most credible evidence was that the value was in excess of the mortgage.� The court also noted �this is a relatively recent purchase and the current recession is showing signs of recovery, although slowly.�� However, the court also observed there was no urgency to sell the property and this was Sheila�s home and an �investment.�� The court determined that it would be inequitable to reflect the condominium�s value at the currently depressed worth and �lead to a future windfall for Sheila.�� The court indicated that �the size and duration of the recession indicates that the glut of foreclosed homes will remain for some time �.� �Under the totality of the circumstances, the court concluded a reduction in value of 11% was appropriate and valued the condominium at $84,600.[7]
�11����� The circuit court further indicated that to equalize the property division would require Michael to pay Sheila $8,019.� However, the court reasoned:
[T]here can be no real equalization here since Sheila failed to provide full financial disclosure of her pre-marital property even when given an opportunity to do so at trial.� Given the balance nominally due but the failure to disclose, the court will not order an equalization payment be made in this case.� This will also provide the parties with a clean break without any loose ends that might encourage even more litigation between them.
�12����� In coming to this conclusion, the court emphasized its finding that the parties had lived separate financial lives.� The court found that, �for the most part they maintained separate bank accounts and bought and sold property independently, at will, and without conferring with the other party.�� The court stated:
It also became known that Sheila had her own premarital estate that has never been fully disclosed either during the cohabitation, their marriage or during discovery in the divorce proceedings.� She does not contest that she had her own separate accounts and made purchases from them on her own.� She had accounts at Valley Community Credit Union with unknown balances and a Thriv[e]nt retirement account but its value still remains an unknown with Sheila, at different times, indicating values between $40,000 to $60,000.� It also came out during the proceedings that Sheila sold a previous (pre-relationship) Minnesota condominium of hers for $40,000.� She also had a previous business interest with her sister, and received a $20,000 social security [backpay] award.� Michael had little if any knowledge of these assets or transactions until after the divorce proceedings had been commenced.� Finally, her failure to provide a Financial Disclosure Statement indicates the same.� If the parties had not lived separate financial lives, there would be no necessity for the secrecy that Sheila wishes to maintain.
�13����� The record reflects the circuit court�s consideration of appropriate statutory factors to overcome the presumption of equal property division, most notably the �catch-all� provision under Wis. Stat. � 767.61(3)(m).� This broad catch-all provision exemplifies the flexibility the circuit court has in crafting a fair and equitable remedy.� See Schmitt v. Schmitt, 2001 WI App 78, �18, 242 Wis. 2d 565, 626 N.W.2d 14.[8] �Contrary to Sheila�s perception, the failure to consider inapplicable factors is not an erroneous exercise of discretion, see LeMere, 262 Wis. 2d 426, �26, and in any event Sheila fails to specify which statutory factors the court should have considered.
�14����� Here, the court gave lengthy explanations supporting its treatment of the assets and equity.� The court�s findings of fact are not clearly erroneous.� The court�s rationale supporting essentially a walk-away property division was a proper exercise of discretion.[9]�
����������� By the Court.�Judgment affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.
[1] No children resulted from the marriage.�
[2] An amended divorce judgment withdrew a provision restoring Sheila�s former surname and authorized her to continue to use her married surname.
[3] Sheila�s issues on appeal involve property division.�� Therefore, we will not address the issue concerning maintenance or attorney fees.�
[4] References to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[5] In her brief to this court, Sheila concedes �there was an agreement in the note from Sheila to Mike that she would return the $19,000 funds �.�� However, Sheila argues that Michael�s reissuance of the check for $19,000 demonstrated donative intent.� Although not specifically stated in her brief to this court, it appears that Sheila does not dispute the $5,000 balance.� In fact, she argued in her circuit court posthearing brief that �[t]he part [in the note] where I said �you will get it back� was in regard to the $5,000[] cash that was withdrawn at the same time.�
[6] Moreover, Sheila cannot unilaterally create donative intent by conversion.
[7] Sheila also argues the circuit court erroneously �accepted less than fair market values for the value of the motor vehicles it awarded to Michael.�� However, Sheila�s argument in this regard is undeveloped and unsupported by record citations.� We will therefore not address the issue further.� See M.C.I., Inc. v. Elbin, 146 Wis. 2d 239, 244-45, 430 N.W.2d 366 (Ct. App. 1988).� In any event, the circuit court indicated in its written decision that �[t]here was no appraisal of them leaving only �Blue Book� as the only neutral source.�� The court used the �second highest value for all [the motor vehicles].��
[8] Although Schmitt v. Schmitt, 2001 WI App 78, 242 Wis. 2d 565, 626 N.W.2d 14, involved the maintenance statute, the property division statute contains the identical catch-all provision.� See Wis. Stat. � 767.61(3)(m).
[9] We note that Sheila failed to provide appropriate citations to the record on appeal.� We admonish Sheila that Wis. Stat. Rule 809.19(1)(d) and (e) require appropriate citations to the record on appeal and references to the brief�s appendix are not in conformity with the rules.� See United Rentals, Inc. v. City of Madison, 2007 WI App 131, �1 n.2, 302 Wis. 2d 245, 733 N.W.2d 322.� A reviewing court is not required to search the record for each statement and proposition made in an appellant�s brief.� See Haley v. State, 207 Wis. 193, 198-99, 240 N.W. 829 (1932).� Sheila also cites unpublished opinions in violation of the rules.� The rules of appellate practice are designed in part to facilitate the work of the court.� Moreover, Sheila did not file a reply brief, and arguments not refuted are deemed admitted.� Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979).� Pro se litigants are bound generally to the same appellate rules as attorneys.� Waushara Cnty. v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16 (1997).�