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COURT OF APPEALS DECISION DATED AND RELEASED May 16, 1996 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2596
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
GARY L. RETZLAFF,
Petitioner-Respondent,
v.
BETTY A. RETZLAFF,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Dodge County:
DONN H. DAHLKE, Judge. Affirmed
in part; reversed in part and cause remanded.
Before
Dykman, Sundby and Vergeront, JJ.
PER
CURIAM. Betty Winters, formerly Betty Retzlaff, appeals from a
judgment of divorce terminating her twenty-one-year marriage to Gary
Retzlaff. She raises four issues: (1) did the trial court err in refusing to
award her a contribution toward her attorney's fees; (2) did the trial court
undervalue the marital estate; (3) did the trial court's memorandum decision
terminate the interim maintenance award; and (4) did the trial court
erroneously exercised its discretion when it failed to award Winters
maintenance when the divorce was finalized.
We conclude that the trial court should have awarded Winters
maintenance. We reverse on that issue,
but affirm in all other respects.
After their 1973
marriage, both Retzlaff and Winters worked at various jobs. In 1978, they started G&G Printing, a
business which they initially ran from their home. G&G Printing is a partnership which is owned equally by
Retzlaff and Gerald Henchke. Winters,
although not a partner, worked in the business as it grew, often for minimal or
no pay. At the time of divorce, Winters
was forty-eight and working as a sales clerk for $6 per hour. Retzlaff was forty-seven and earned over
$100,000 per year from G&G Printing.
The trial court divided their property equally, ordering Retzlaff to pay
Winters $195,000 because Retzlaff kept the two major assets from the marriage,
the printing business and the family home.
The trial court denied Winters' request for maintenance.
Winters argues that the
trial court should have ordered Retzlaff to pay her attorney's fees. Whether attorney's fees should be awarded is
a matter of trial court discretion. Bisone
v. Bisone, 165 Wis.2d 114, 123-24, 477 N.W.2d 59, 62 (Ct. App.
1991). "The party requesting
contribution must establish ... the reasonableness of the total fees, the need
of one spouse for contribution and the ability of the other spouse to
pay." Corliss v. Corliss,
107 Wis.2d 338, 350-51, 320 N.W.2d 219, 224 (Ct. App. 1982). The trial court denied Winters' request for
attorney's fees for two reasons: (1)
because she failed to present evidence as to the reasonableness of the fees
during trial;[1] and (2)
because both parties had sufficient assets and income to pay their own
fees. This was not an erroneous
exercise of discretion.
Winters next argues that
the trial court undervalued the marital estate. A trial court's valuation of an asset is a finding of fact which
will not be overturned on appeal unless clearly erroneous. Liddle v. Liddle, 140 Wis.2d
132, 136, 410 N.W.2d 196, 198 (Ct. App. 1987); see also
§ 805.17(2), Stats. We address each asset in turn.
Winters first contends
that the Montana homestead was undervalued.
Both Winters and Retzlaff testified at trial that the land was worth
between $5,000 and $6,000. Retzlaff
owned only a one-third interest in the property, making it difficult to
sell. Winters did not have the property
appraised and produced no evidence as to its value at trial. The trial court's conclusion that the land
was worth $5,000 was not clearly erroneous.
Winters next contends
that the trial court undervalued the family residence. The trial court valued the property at
$90,000. Retzlaff testified that it was
worth less than $90,000. Winters stated
in her interrogatories that the house was worth $85,000. After remodeling, the house was appraised at
$90,000. Although substantial money was
invested in the house, both the appraisal and the parties' statements support
the trial court's finding. The finding
was not clearly erroneous.
Winters next argues that
G&G Printing was undervalued.
Winters' expert valued the business at $250,000. Retzlaff's expert valued the business at
$272,000. The trial court found the
business's value to be $250,000 because it was a "working
partnership" and, "[i]f anything should happen to either partner or
if either partner should want to terminate this working relationship, the
business would suffer greatly by the loss of that partner, until he could be
replaced." The trial court further
explained that it accepted the lower valuation because the business was
relatively easy to enter and, as such, subject to competitive pressure. The trial court's finding that the business
had a value of $250,000--the valuation put forth by Winters' own expert--was
not clearly erroneous.
Winters next argues that
she should have continued to receive interim maintenance through September 9,
1994, the date the judgment of divorce was entered. On January 7, 1994, the trial court ordered Retzlaff to pay
Winters $700 weekly in interim maintenance.
On June 29, 1994, the trial court issued its memorandum decision. In the decision, the trial court denied
Winters' request for maintenance after divorce. After receiving the decision, Retzlaff stopped making the interim
maintenance payments. Winters then
filed a motion with the trial court asking that Retzlaff be found in contempt
of court for having ceased maintenance payments prior to any court order
countermanding the $700 per week order.
The trial court denied the motion, stating that it intended for
maintenance to cease as of July 1.
Winters contends that
the trial court should have ordered Retzlaff to continue paying interim
maintenance from the last week in June until entry of judgment in
September. She bases her argument on
§ 807.03, Stats., which
provides that "[a]n order made upon notice shall not be modified or
vacated except by the court ...."
She argues that a memorandum decision is merely a document written by
the court for the information of counsel and did not modify the previous
order. We disagree. We conclude that the trial court modified
its previous interim maintenance order when it issued its memorandum decision
denying maintenance after the divorce.[2]
Winters finally argues
that she should have been awarded maintenance.
A maintenance determination should be made with two related objectives
in mind: "to support the recipient
spouse in accordance with the needs and earning capacities of the parties (the
support objective) and to ensure a fair and equitable financial arrangement
between the parties in each individual case (the fairness
objective)." LaRocque v.
LaRocque, 139 Wis.2d 23, 33, 406 N.W.2d 736, 740 (1987). The amount of maintenance to be awarded in
furtherance of these objectives in a given case is committed to the trial
court's discretion. Fowler v.
Fowler, 158 Wis.2d 508, 519, 463 N.W.2d 370, 374 (Ct. App. 1990). A court exercises discretion when it
considers the facts of record and reasons its way to a rational, legally sound
conclusion. See McCleary
v. State, 49 Wis.2d 263, 277, 182 N.W.2d 512, 519 (1971). To determine whether the trial court
properly exercised its discretion in a particular matter, we look first to the
court's explanation of the reasons underlying its decision.
In denying maintenance,
the trial court stated:
This Court feels that it is not
appropriate in this case because of the large property settlement that is
required, together with the very real prospect of a relatively short number of
years that Gary will be able to be productive.
Betty has a comfortable financial safety net for her to be able to
continue to live as she has been, and to secure whatever training or education
she may desire for her future.
The trial court's
decision is not consistent with applicable law. "When a couple has been married many years and achieves
increased earnings, an equal division of total income is a reasonable starting
point in determining maintenance."
Wikel v. Wikel, 168 Wis.2d 278, 282, 483 N.W.2d 292, 293
(Ct. App. 1992). The trial court may
not deny maintenance simply because Winters has a "comfortable financial
safety net" based on the property division. Retzlaff, too, received a large property settlement. He also has a substantial stream of
income. Winters does not. Winters should not be required to live off
her property settlement in lieu of maintenance. See LaRocque, 139
Wis.2d at 33, 406 N.W.2d at 740.
Accordingly, we remand to the trial court for a determination as to the
proper amount of maintenance.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.