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COURT OF APPEALS DECISION DATED AND RELEASED June
7, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-0882
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
In re
the Marriage of:
DOLORES
L. GILBERT,
Petitioner-Respondent,
v.
RAYMOND
L. GILBERT,
Respondent-Appellant.
APPEAL
from a judgment of the circuit court for Manitowoc County: DARRYL W. DEETS, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
PER
CURIAM. Raymond L. Gilbert appeals pro
se from the judgment divorcing him from Dolores L. Gilbert. We affirm.
On
appeal, Raymond protests the trial court's refusal to adjourn the December 21,
1993, divorce trial. On December 7,
Raymond's attorney sought an adjournment because Raymond, who had relocated to
Florida for the winter months on the advice of a physician, could not afford to
return to Wisconsin for the trial. In
an order denying Raymond's motion, the trial court stated that Raymond's
"medical needs did not outweigh [Dolores's] right to have this matter
heard since it has been adjourned a number of times before."
At
the beginning of the trial on December 21, the court denied Raymond's renewed
motion to adjourn the trial and stated that it had afforded Raymond the
option of appearing by telephone. Raymond's counsel advised that Raymond
would not appear by telephone.
Thereafter, evidence was taken, a judgment of divorce was entered, and
Raymond brought this appeal.
Raymond
complains that it was unfair to hold a trial when he was unable to travel to
Wisconsin. It is within the trial
court's discretion to adjourn a trial. See
Schwab v. Baribeau Implement Co., 163 Wis.2d 208, 216, 471 N.W.2d
244, 247 (Ct. App. 1991). The absence
of a transcript of the hearing on Raymond's December 7 motion hampers our
review of the trial court's decision.
As the appellant, Raymond is responsible for presenting a complete
record for this appeal, and any material omissions from the record will be
construed against him. See State
v. Smith, 55 Wis.2d 451, 459, 198 N.W.2d 588, 593 (1972). The absence of a transcript limits our review
to those parts of the record available to us.
Ryde v. Dane County Dep't of Soc. Servs., 76 Wis.2d 558,
563, 251 N.W.2d 791, 793 (1977).
Based
upon the record available to us, we discern no misuse of the trial court's
discretion. Raymond's motion emphasized
that he was financially unable to return to Wisconsin for trial. However, on appeal Raymond emphasizes the
poor state of his health as the reason he was unable to attend. We acknowledge that Raymond's December 7
motion was accompanied by a physician's letter indicating that Raymond is
unable to "exercise outside in cold weather" and had "been
advised to move to a warmer climate during the winter months ...." However, the trial court found that
Raymond's health concerns did not outweigh the need to go to trial after
several previous adjournments. Because
Raymond does not provide a transcript of the hearing on his motion to adjourn,
we must assume the transcript supports the trial court's balancing of the competing
interests. See Suburban
State Bank v. Squires, 145
Wis.2d 445, 451, 427 N.W.2d 393, 395 (Ct. App. 1988).[1]
The
balance of the issues Raymond presents on appeal relate to the property
division. At the outset, we observe
that Raymond's challenge to the property division is undermined because he did
not appear at trial or avail himself of the opportunity to appear by telephone. See Laribee v. Laribee,
138 Wis.2d 46, 51, 405 N.W.2d 679, 681 (Ct. App. 1987).
We
further observe that the manner in which Raymond presents his appellate issues
also works against him. He raises
numerous complaints about the trial court's property division without crafting
arguments under the law to substantiate his claims of error. The right to proceed pro se does not excuse
compliance with relevant rules of procedural and substantive law. Waushara County v. Graf, 166
Wis.2d 442, 452, 480 N.W.2d 16, 20, cert. denied, 113 S. Ct. 269
(1992). These rules include the
requirement that an argument be presented in a form which can be addressed by
this court.
Property
division is within the trial court's discretion. Brandt v. Brandt, 145 Wis.2d 394, 406, 427 N.W.2d
126, 130 (Ct. App. 1988). We will
uphold the trial court's findings of fact unless they are clearly
erroneous. See § 805.17(2),
Stats. Raymond challenges the division of deposit accounts, litigation
proceeds, the marital home, and personal and business property.
DEPOSIT ACCOUNTS
Raymond asks us to
address the division of the parties' savings account. He contends that Dolores transferred $7500 from the account to an
account titled solely in her name. Dolores
testified that $4695 of that amount was split with Raymond and the balance of
the funds, $2805, was used to pay marital and business obligations. On appeal, Raymond claims one-half of that
balance, or $1402.50.
The
trial court found that the parties divided the account at the time of the
temporary order and that it and other personal bank accounts were balanced out
by a $900 payment from Dolores to Raymond.
Raymond has not demonstrated that these factual findings are clearly
erroneous or that the $2805 should have been divided equally notwithstanding
Dolores's testimony that the funds were applied to marital and business
obligations.
Raymond
also questions the disposition of a money market fund into which Dolores
transferred funds from a joint account.
Dolores testified that the funds were used solely for business purposes
and none of the funds were used for personal purposes. As stated earlier, the trial court found
that the parties' personal bank accounts were divided at the time of the
temporary order. On appeal, Raymond
argues that Dolores testified inaccurately because at least two checks were
written on the account to pay Dolores's rent.
Raymond does not direct us to that portion of the record on appeal that
supports his contention that Dolores wrote checks on the account to cover her
personal expenses. We will not sift the
record to locate facts to support a litigant's contentions. See Keplin v. Hardware Mut.
Casualty Co., 24 Wis.2d 319, 324, 129 N.W.2d 321, 323 (1964).
LITIGATION
PROCEEDS
Next,
Raymond challenges the trial court's decision to equally divide the proceeds of
litigation Raymond commenced against Leede Research and its refusal to give him
credit for the $1000 retainer because the retainer was paid out of marital
property. On appeal, Raymond argues that
because Dolores declined to participate in the litigation or pay one-half of
the retainer, the litigation proceeds should not be divided equally and he
should have received credit for the retainer in the property division.
We
disagree with Raymond's analysis. The
parties were still married at the time Raymond commenced the Leede Research
suit. The divorce was commenced on May
29, 1991, and the suit was brought on December 3, 1991. Wisconsin law presumes that all property
owned by spouses is marital. See
§ 766.31(2), Stats. Therefore, in the absence of evidence that
the parties reclassified their property under § 766.31(10), the trial court
correctly concluded that the funds used to pay the retainer were marital
property. Each spouse has an undivided
one-half interest in marital property.
Section 766.31(3). Thus, Dolores
contributed to financing the litigation and the trial court did not err in
awarding her one-half of the proceeds therefrom and declining to give Raymond a
credit for the retainer.
MARITAL HOME
Raymond
next contends that he should have been reimbursed for real estate taxes he paid
on the marital home. Under the
temporary order entered at the outset of the divorce, Raymond was awarded
temporary possession of the marital home and was required to pay real estate
taxes and insurance on the property.[2] After the trial, the court held Raymond
responsible for real estate taxes through the end of 1993 and ordered that he
pay them and insurance until the property was sold. Raymond's appellate challenge to these rulings is without
merit. He was in possession of the
home, was awarded the home in the property division and was therefore
responsible for these related obligations.
The
trial court valued the home at $68,000 and awarded it to Raymond with a lien in
favor of Dolores to secure her $38,662.52 balancing payment on the property
division. The trial court ordered
Raymond to sell the home by July 1994 and required that Dolores's balancing
payment accrue interest at the rate of one percent per month because Raymond
had unreasonably delayed selling the home.
Raymond states that he did not delay the sale but does not refer us to
that portion of the record on appeal which supports his statement. We will not comb the record to locate
support for a litigant's contentions on appeal. See Keplin, 24 Wis.2d at 324, 129 N.W.2d at
323.
Raymond
contends he should have been reimbursed or credited for expenses he incurred in
maintaining and preparing the house for sale.
The record does not support Raymond's contention. Dolores testified that she was aware that
Raymond made some improvements to the house after divorce proceedings
began. She believed some walls had been
painted, part of the porch had been carpeted, the roof had been repaired and
Raymond had paid real estate taxes and insurance. Dolores was unaware whether Raymond had the house cleaned for
sale. Dolores did not know the cost of
the work on the home. Although Raymond
recites those costs in his appellant's brief, he does not direct us to that portion
of the record on appeal which supports his recap of these expenses. We will not sift the record to locate
support for Raymond's contentions. See
id.
Raymond
also complains that the trial court's valuation of the home did not take into
account the costs of sale. Raymond does
not demonstrate that this issue was raised in the trial court. We normally do not consider issues raised
for the first time on appeal. Seagall
v. Hurwitz, 114 Wis.2d 471, 489, 339 N.W.2d 333, 342 (Ct. App.
1983).
Raymond
claims that the interest on Dolores's balancing payment was improperly
calculated. In support of this claim,
Raymond appends a document dated May 19, 1994, which calculates the interest
owed to Dolores. We will not consider
this argument for several reasons.
First, our review on appeal is limited to items included in the record
on appeal. See State v.
Aderhold, 91 Wis.2d 306, 314-15, 284 N.W.2d 108, 112 (Ct. App.
1979). This document does not appear in
the record on appeal. Second, the
document postdates the judgment of divorce and the March 25, 1994, notice of
appeal in this case. This appeal does
not embrace matters arising subsequent to the judgment and notice of
appeal. Chicago & N. W. R.R.
v. LIRC, 91 Wis.2d 462, 473, 283 N.W.2d 603, 609 (Ct. App. 1979), aff'd,
98 Wis.2d 592, 297 N.W.2d 819 (1980).
Third, there is no indication that Raymond raised his complaint with the
trial court. We do not consider issues
raised for the first time on appeal. Meas
v. Young, 138 Wis.2d 89, 94 n.3, 405 N.W.2d 697, 699 (Ct. App.
1987). Finally, we assume the home
could not be sold in the absence of Raymond's agreement and signature on the
transfer documents. To the extent
Raymond disagreed with the amount Dolores was to receive from the proceeds of
the sale, he would have had the opportunity to raise that matter prior to the
real estate closing. There is no
indication that he did so.
PERSONAL AND
BUSINESS PROPERTY
Raymond
disputes Dolores's valuation of a conference table, stereo and hanging
plant. At trial, Raymond's counsel
submitted a handwritten list which included these items and suggested a value
for them. On cross-examination, Dolores
testified that she did not know the stereo's value and disputed Raymond's
valuation of the conference table and four chairs at $500 and the hanging plant
at $50. Although Raymond disputes
Dolores's testimony and seeks to be compensated for one-half of the values he
offered, Raymond does not frame an argument as to why or how the trial court erred
in this area. We will not independently
craft a litigant's argument. See
Vesely v. Security First Nat'l Bank, 128 Wis.2d 246, 255 n.5, 381
N.W.2d 593, 598 (Ct. App. 1981).
Raymond
claims that he also should have been compensated for one-half the value of
telephone equipment known as dialers.
He refers to Dolores's testimony that the dialers were worth less than
$6600. The trial court found that four
boxes of business inventory had no value because attempts to sell the inventory
had been unsuccessful. Raymond does not
frame an argument as to why the trial court's findings are clearly
erroneous. Therefore, we do not address
this issue further.
Raymond
submitted to the trial court proposed values for a computer, hard disk, reader
and telephone equipment. Dolores
testified that she did not know the fair market value of these items. The evidence was in conflict and it was the
trial court's function to resolve this dispute. See Cogswell v. Robertshaw Controls Co., 87
Wis.2d 243, 250, 274 N.W.2d 647, 650 (1979).
Again, Raymond does not demonstrate how or why the trial court erred.
Finally,
we address Raymond's claim that he should receive one-half of a $400 payroll
check Dolores wrote herself in June 1991.
Raymond does not explain why this item would be subject to property
division. Dolores filed a financial
disclosure statement on June 18, 1991, in which she listed the balances in
various cash and deposit accounts.
Raymond does not contend that all or part of the $400 payroll is not
disclosed here. Additionally, the trial
court denied maintenance to the parties.
Therefore, questions regarding income received by Dolores are not
properly raised in this appeal from the trial court's property division.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.