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COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 17, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1064-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
ROBERT E. WILLIAMS,
Petitioner-Appellant,
v.
GWEN A.
BRADLE-WILLIAMS,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Douglas County:
JOSEPH McDONALD, Judge, and WILLIAM CHASE, Reserve Judge.[1] Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Robert Williams appeals a divorce judgment,
contending that the trial court erroneously awarded to his former wife, Gwen
Bradle-Williams, one-half the increase in his savings account.[2] He also argues that the trial court
erroneously considered the issue of marital misconduct. We affirm the judgment.
The parties were married
in July 1991. Gwen, age forty-two,
earned approximately $21,000 per year, and Robert, age fifty-one, earned
approximately $31,000 per year. Before
the marriage, Robert had a savings account of $20,000. It increased by $17,000 during the marriage
due to accumulated interest and contributions from Robert's earnings. Both parties owned their own residences at the
time of the marriage. In August 1991,
Robert loaned Gwen $1,100 to pay her fuel oil bill. In March 1992, Gwen sold her residence and repaid Robert $1,100
from the approximately $2,000 in proceeds from the sale. The couple began to live together at Robert's
residence. Robert disputed Gwen's
testimony that she paid for the utilities, telephone and groceries at Robert's
house. The couple kept separate
accounts and acquired no jointly titled assets during their marriage.
The trial court divided
equally the amount that Robert's savings account increased from the date of the
marriage to the date the divorce action was filed. It stated:
The
reason respondent is awarded the above, she did not seek attorney fees,
maintenance payments, 50% of the entire savings account plan, 50% of
petitioner's interest in the home, nor did she ask to be awarded 50% in
petitioner's pension plan, which she was presumptively entitled to. Petitioner gets well over 50% of his estate,
plus petitioner was kept out of the house because of a restraining order.
Property division is
addressed to trial court discretion. Forester
v. Forester, 174 Wis.2d 78, 91, 496 N.W.2d 771, 777 (Ct. App.
1993). Discretion requires a rational
process in which the facts of record and relevant legal principles are
considered to achieve a reasoned determination. Bahr v. Bahr, 107 Wis.2d 72, 78, 318 N.W.2d 391,
395 (1982). The appellate court reviews
the record to determine whether discretion was exercised and whether the record
supports the determination. See Vier
v. Vier, 62 Wis.2d 636, 639-40, 215 N.W.2d 432, 433-34 (1974).
Because the parties'
property was not derived by gift or inheritance, an equal property division is
presumed. Section 767.255(3), Stats.
The court may alter the presumed equal division, without regard to
marital misconduct, after considering the factors outlined in § 767.255(3),
including the length of the marriage, the property brought to the marriage by
each party, the parties' contributions to the marriage, their earning capacities
and other economic circumstances.
Robert argues that the
trial court unreasonably exercised its discretion when it awarded Gwen one-half
the increase in his savings account. He
argues that it failed to consider the § 767.255(3), Stats., factors. He
further contends that the increase in the savings was due entirely to his
efforts, the parties kept their incomes separately, and Gwen contributed only
upkeep and utilities while living in the family home.
We reject Robert's
argument that Gwen must prove that she contributed to the increase in the
savings account in order to be awarded one half. To the contrary, § 767.255, Stats.,
specifically presumes that each party is entitled to one-half of the
assets.
We conclude that the
record supports the trial court's exercise of discretion. The trial court applied the presumed 50%
division to only a part of one of the assets of the marital estate. Given the length of the marriage, the
property brought to the marriage and the parties' economic circumstances, the
court was entitled to alter the 50% division and apply it in this limited
respect.
Robert next argues that
the trial court erroneously referred to the restraining order that prohibited
him from living in the home and entered the property division to penalize him
for misconduct. We disagree. The court's only comment was that
"Petitioner gets well over 50% of his estate, plus petitioner was kept out
of the house because of a restraining order." The record does not support Robert's assertion the court
penalized him. To the contrary, the
court awarded him over 50% of the assets subject to division. The court's reference to the restraining
order referred to the time that Gwen was living in the marital home in Robert's
absence. She testified that she kept up
the home, paid for utilities and upkeep, cared for Robert's son from his prior
marriage and did not receive any contribution from Robert during this time. The court's reference implies an apparent
finding that it accepted Gwen's testimony that she contributed to maintaining
marital assets as credible. Credibility
is a trial court, not appellate court, function. Section 805.17(2), Stats. Because the record does not disclose an
erroneous exercise of discretion, the judgment is affirmed.[3]
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.