COURT OF APPEALS DECISION DATED AND RELEASED JUNE 13, 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. 95-0089
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
ROBERTA M. FLODIN,
Petitioner-Respondent,
v.
RODNEY L. FLODIN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Burnett County:
JAMES H. TAYLOR, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Rodney Flodin appeals that part of a
divorce judgment dividing the marital property. Because the trial court improperly excluded marital property from
the marital estate before dividing the property, we reverse that part of the
judgment and remand the cause for redivision of the marital property.
The court excluded the
parties' home from the marital estate.
The record establishes that the property was brought to the marriage by
Roberta. Property owned by a party
prior to the marriage is subject to division.
See Lang v. Lang, 161 Wis.2d 210, 229, 467 N.W.2d
772, 779-80 (1992). Although
§ 767.255(3)(b), Stats.,
allows the court to depart from the presumptive fifty-fifty division of the
marital property based on property brought to the marriage, it does not allow
the court to exclude the property from the marital estate.
Roberta's brief on
appeal suggests that the trial court unequally divided the marital estate after
considering the property brought to the marriage. The record does not support that argument for several reasons. First, the trial court unequivocally stated
"The Court finds the home as not part of the marital estate." Second, a letter from the court to the
parties' attorneys identified the issue presented in the parties' briefs as
"whether the home is a marital asset." The court stated in that letter that it found that the home was
not a part of the marital estate.
Finally, although Roberta's initial brief filed in the trial court
requested unequal division of the marital property, Rodney's brief and
Roberta's reply brief digressed into issues of whether the property was kept
sufficiently separate and whether Roberta exhibited "donative
intent." These briefs lost sight
of the correct issue of whether the court should depart from the presumptive
fifty-five distribution of the marital property and induced the trial court to
erroneously believe that the issue was whether the home was a part of the
marital estate.
This opinion should not
be construed as a requirement that the trial court award Rodney any part of the
home or any additional property. After
including the home in the marital estate, the trial court is free to exercise
its discretion and divide the property unequally to achieve the same result if
it is justified after consideration of the factors listed in § 767.255, Stats.
We merely hold that the home is a part of the marital estate subject to
division.
By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.