COURT OF APPEALS DECISION DATED AND RELEASED December 12, 1995 |
NOTICE |
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. 95-0008
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
IN RE THE MARRIAGE OF:
BARBARA J. DIPASQUALE,
Petitioner-Appellant,
v.
BENN S. DIPASQUALE,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Milwaukee County:
DOMINIC S. AMATO, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Barbara J. Dipasquale appeals from a judgment granting
her divorce from Benn S. Dipasquale.
She challenges the trial court's decision that the prenuptial agreement
entered into between the parties was valid and enforceable. Further, Mrs. Dipasquale argues that the
court-ordered child-support trust was unlawful. Finally, Mrs. Dipasquale alleges that the trial court refused to
receive competent evidence and that the trial court was biased in favor of her
husband. We affirm.
Prior to their marriage
on June 12, 1984, Mr. and Mrs. Dipasquale entered into a prenuptial agreement
concerning property division upon divorce.
On June 28, 1993, Mrs. Dipasquale petitioned for a legal
separation. Mr. Dipasquale countered
for divorce one month later. During the
divorce proceedings, the trial court applied the prenuptial agreement to divide
the parties' property and to deny maintenance.
The trial court determined that when Mrs. Dipasquale received the
proposed agreement in June, 1984, she was made aware of its contents and
entered into the agreement knowingly, understandingly, and voluntarily.
Section 767.255, Stats., provides that when dividing the
property of the parties to a divorce, the court shall presume that the marital
estate “is to be divided equally between the parties, but may alter this
distribution without regard to marital misconduct after considering ... (11)
Any written agreement made by the parties before or during the marriage
concerning any arrangement for property distribution; such agreements shall be
binding upon the court except that no such agreement shall be binding where the
terms of the agreement are inequitable as to either party. The court shall presume any such agreement
to be equitable as to both parties.”
“The statutory test of
equitability in sec. 767.255(11), Stats.,
leaves enforceability generally to the trial court's sense of fairness.” Hengel v. Hengel, 122 Wis.2d
737, 744, 365 N.W.2d 16, 19 (Ct. App. 1985).
“Discretion is inherent in the test.”
Id. Our review of
the court's conclusion that the agreement is equitable is therefore limited to
whether the court properly exercised its discretion. During our review, we are obligated to accept the trial court's
resolution of the credibility of the witnesses because of the court's superior
opportunity to judge such matters. Greenwald
v. Greenwald, 154 Wis.2d 767, 781, 454 N.W.2d 34, 39 (Ct. App. 1990).
The law is well settled
that a prenuptial agreement is equitable if:
(1) each spouse made fair and reasonable disclosure to the other of his
or her financial status; (2) each spouse has entered into the agreement voluntarily
and freely; and (3) the substantive provisions of the agreement dividing the
property upon divorce are fair to each other.
Greenwald, 154 Wis.2d at 779-780, 454 N.W.2d at 38.
Mrs. Dipasquale
essentially disputes all of the requirements stated in Greenwald. First, she contends that Mr. Dipasquale
failed to fairly disclose the value of his retirement benefits. Second, she states that she did not enter
the prenuptial agreement voluntarily because Mr. Dipasquale refused to marry
her without the agreement. Finally,
Mrs. Dipasquale states that enforcement of the prenuptial agreement would be
unfair because enforcement would not allow her children to maintain the
lifestyle they had before the divorce.
The prenuptial agreement
contained the following clause regarding Mr. Dipasquale's retirement benefits:
In the case of Mr. DiPasquale, there shall be
excluded from the computation of Adjusted Net Worth (i) the value of Mr.
DiPasquale's interest in the partnership Foley & Lardner (or any successor
thereto) and of any right which Mr. DiPasquale shall have to receive
compensation or benefits (retirement benefits or otherwise) from such
partnership....
Further,
Exhibit “A” to the prenuptial agreement lists as item number 15, “[i]nterest in
Foley & Lardner Partnership including contractual right to retirement
benefit.”
The trial court
determined that Mr. Dipasquale had fairly disclosed his retirement
benefits. The trial court correctly
noted that Mrs. Dipasquale was sophisticated with respect to financial matters
because of her past employment as a securities broker and a company
president. The trial court also noted
that Mrs. Dipasquale was aware of the contents of the prenuptial agreement and
had independent knowledge of the existence of Mr. Dipasquale's retirement
benefits. These findings have not been
shown to be clearly erroneous and therefore we must accept them. Section 805.17(2), Stats. Further, Mrs.
Dipasquale was represented by counsel who certified that Mrs. Dipasquale
understood the provisions of the prenuptial agreement. Based upon the above, it is clear that the
disclosure made by Mr. Dipasquale was fair and reasonable.
Mrs. Dipasquale also
suggests that she did not have adequate time to review the prenuptial
agreement. Although she does not
develop this argument, a review of the record reveals no evidence to support a
conclusion that Mrs. Dipasquale was coerced or forced to sign the prenuptial
agreement. In rejecting her argument,
the trial court stated on many occasions that Mrs. Dipasquale's testimony was
less than credible. We must give
deference to this finding. Greenwald, 154 Wis.2d at 783, 454
N.W.2d at 40.
The main thrust of Mrs.
Dipasquale's argument regarding the prenuptial agreement concerns the alleged
substantive unfairness of the agreement.
She argues that if the trial court enforces the prenuptial agreement,
she will be forced to liquidate her assets and go to work because the
prenuptial agreement does not provide for spousal maintenance. According to Mrs. Dipasquale, this will
prevent her from giving her children the lifestyle they had prior to the
divorce. Significantly, the prenuptial
agreement provides that it “shall not in any way limit the court's power to
make whatever child support arrangements it deems appropriate under the
circumstances.” The trial court awarded
child support at 25% of Mr. Dipasquale's income. Mrs. Dipasquale failed to persuade the trial court that the
evidence she produced supported the factual proposition she needed to
establish: that the prenuptial
agreement was unfair. Gardner v.
Gardner, 190 Wis.2d 217, 235, 527 N.W.2d 701, 707 (Ct. App. 1994). The trial court correctly exercised its
discretion when it held that the prenuptial agreement was equitable.
Next, Mrs. Dipasquale
argues that the trial court's imposition of the child-support trust is
oppressive and unreasonable. Section
767.25(2), Stats., provides that
“[t]he court may protect and promote the best interests of the minor children
by setting aside a portion of the child support which either party is ordered
to pay in a separate fund or trust for the support, education and welfare of
such children.” Mrs. Dipasquale's
objection to the trust as improperly usurping her right to make spending
decisions as in Resong v. Vier, 157 Wis.2d 382, 391-392, 459
N.W.2d 591, 594-595 (Ct. App. 1990), is misplaced. Resong's prohibition against ordering money to be
placed in an educational trust pertained to sums meted out from a support order
that was not originally subjected to trust provisions. Here, the trust was ordered in addition to
child support. Mrs. Dipasquale still
retains the right to decide how to spend child support. The creation of the trust was a proper
exercise of the trial court's discretion under § 767.25(2), Stats.
Finally, Mrs. Dipasquale
argues that the trial court conducted the trial improperly. First, she claims that the trial court
erroneously concluded that she had “opened the door” to evidence of fault in
causing the breakup of the marriage.
This argument has not been fully developed by Mrs. Dipasquale and is not
supported by authority. We will not
decide issues that are not or inadequately briefed. See State v. Pettit, 171 Wis.2d 627,
646-647, 492 N.W.2d 633, 642 (Ct. App. 1992).
Second, Mrs. Dipasquale claims that the trial court erred in refusing to
receive competent evidence throughout the trial. Specifically, she states that the trial court rejected a “trial
book” that her attorney “had spent a great deal of time assembling.” The trial book contained various discovery
matters. Trial courts have wide
discretion in the admission of evidence.
Loy v. Bunderson, 107 Wis.2d 400, 414-415, 320 N.W.2d 175,
184 (1982). Mrs. Dipasquale has not
demonstrated how the trial court misused its discretion. Third, Mrs. Dipasquale claims that the trial
court used a falsus in uno approach to much of the evidence. She does not support this argument by
reference to facts in the record, however, and therefore it must be
rejected. Moreover, as we have already
noted, the fact finder is given broad discretion in assessing the credibility
of the witnesses. Fourth, Mrs.
Dipasquale argues that the trial court erroneously accepted Mr. Dipasquale's
valuation of the parties' property. A
property owner may give an opinion as to the value of that property even if the
owner has no special expertise in that area.
See Trible v. Tower Ins. Co., 43 Wis.2d 172, 187,
168 N.W.2d 148, 156 (1969). Lastly,
Mrs. Dipasquale argues that the trial court was biased against her. Again, this argument is not supported by any
reference to facts in the record. The
trial court found Mr. Dipasquale to be a more credible witness than Mrs.
Dipasquale. In the context of the
record here, this is not evidence of bias.
We are required to give due regard to the opportunity of a trial court
to judge the credibility of the witnesses.
Section 805.17(2), Stats.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.