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COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 15, 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(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. 95-1006-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
ROBERT S. SCHROEDER,
Petitioner-Appellant,
v.
VICKI L. SCHROEDER,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Shawano County:
THOMAS G. GROVER, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Robert Schroeder appeals that part of a divorce
judgment dividing the marital property.[1] The trial court found that an investment
account was nonmarital property belonging to Vicki Schroeder. Robert argues that by placing the gifted
money in a joint account, Vicki intended to donate half of the account to
him. He also argues that the trial
court improperly exercised its discretion when it refused to deviate from a
substantially equal marital property division in light of Vicki's significant
nonmarital assets inherited during the marriage. We reject these arguments and affirm the judgment.
During the marriage,
Vicki received a gift of a house. She
sold the house and placed the proceeds in a separate bank account. She then transferred the proceeds to an
investment account. At Robert's insistence,
she then put the investment account in both their names. All of the money in that account was
received from the sale of the house.
All of the money in the account is therefore traceable to Vicki and
retained its separate identity. See
Brandt v. Brandt, 145 Wis.2d 394, 408, 427 N.W.2d 126, 131 (Ct.
App. 1988).
The trial court properly
concluded that the investment account also retained its separate character and
was not a part of the marital estate.
Robert argues that when Vicki opened a joint account, she changed the
character of the funds from exempt gifted property to marital property. Vicki's decision to place the account under
joint ownership creates only a rebuttable presumption of donative intent. See Trattles v. Trattles,
126 Wis.2d 219, 224, 336 N.W.2d 379, 382 (Ct. App. 1985). Vicki rebutted the presumption by evidence
establishing how the account was created.
The trial court found that Vicki never intended to transfer half of the
money to Robert, but only to establish a joint account to placate Robert after
he reacted angrily to her placing the money in a separate account. Because we must defer to the trial court's
determination of weight and credibility of witnesses, and because her testimony
supports this finding, it is not clearly erroneous. Section 805.17(2), Stats.
The trial court properly
exercised its discretion when it refused to deviate from the presumptive equal
division of marital property. The court
considered the substantial gift and inheritance Vicki received during the
marriage, but found that it did not constitute grounds to vary from the equal
property division presumptively created by § 767.255(3), Stats.
Robert has a secure job that pays almost three times Vicki's average
income. Robert's earnings and income
potential offset Vicki's additional assets and provide an adequate basis for
the decision to equally divide the marital property.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.