COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 19, 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. 95-0355-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
MICHAEL ANDERSON,
Petitioner-Respondent,
v.
DEBRA ANDERSON,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Polk County:
JAMES R. ERICKSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Debra Anderson appeals the property
division of her divorce judgment.[1] After thirteen years in the U.S. Navy and
eight years of marriage to Debra, Michael volunteered for an incentive plan
encouraging early departure from the service; under the Navy's Voluntary
Separation Incentive (VSI) plan, Michael received the right to receive monetary
payments for twenty-three years. The
trial court classified Michael's VSI benefits as income and then excluded them
from the property division. Debra
submits two arguments on appeal: (1)
the VSI benefits were property that the trial court should have included in the
marital estate; and (2) the trial court undervalued several other marital
assets. We reject these arguments and
therefore affirm the judgment.
We will not overrule the
trial court's decision to classify the VSI payments as income, not as property
divisible in the property division.
Divorce courts have considerable discretion to treat such separation
benefits as income. See Gohde
v. Gohde, 181 Wis.2d 770, 774-77, 512 N.W.2d 199, 201-02 (Ct. App.
1993). Although Gohde
addressed the question in the context of the child support percentage
standards, we conclude that the Gohde court's analysis can also
apply to property division questions. Gohde
effectively held that divorce courts had discretion to consider such payments
income as long as they exhibited the customary characteristics of financial
flows divorce courts usually denominate income. Here, Michael will receive his VSI payments over a twenty three
year period. Unlike a pension, which is
divisible in a property division, Michael earned his VSI payments by
discontinuing his military career, not by continuing it. In large measure, the VSI payments represent
the armed forces' buyout of Michael's future wages, not a substitution of a new
annuitized benefit for pension benefits he had already earned. Michael's election substitutes one form of
income for another; it does not substitute property for property. In the absence of contrary proof, the trial
court reasonably classified the VSI benefits as income.
We also decline to
overrule the trial court's valuation of the parties' personal property,
including the forty-two U.S. EE savings bonds in Michael's possession. Like other property division questions, the
trial court's valuation decision was a discretionary one. Forester v. Forester, 174
Wis.2d 78, 91, 496 N.W.2d 771, 777 (Ct. App. 1993). Although Michael testified that the EE savings bonds were worth
$36,000.00, his counsel informed the trial court by posthearing letter that
they were worth only $2,406.16. Debra
never contested this amount, and it has a surface reasonableness when measured
against the forty-two bonds' $4,200 face value. In any event, Debra has not shown it to be materially
inaccurate. The trial court's other
valuations also seem relatively accurate.
As the trial court noted, the parties' property was of modest
value. Although the trial court made no
express findings on these matters, Debra has not demonstrated that its
valuations deviated from the property's actual value by a material amount or
that the trial court's property award was disproportionate in Michael's favor. In sum, we see no abuse of discretion.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.