��� COURT OF APPEALS ������� DECISION �� DATED AND RELEASED ������������ August 31, 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.� 95-1116-FT
STATE
OF WISCONSIN�������������� IN COURT OF
APPEALS
�� � DISTRICT IV�����������
�����������������������������������������������������������������������������������������������������������������������
IN RE THE MARRIAGE OF:
ELIZABETH TOOKE,
����������������������� ����������������������� ����������� Petitioner-Respondent,
����������� ����������� v.
ROBERT TOOKE,
����������������������� ����������������������� ����������� Respondent-Appellant.
����������������������������������������������������������������������������������������������������������������������
����������������������� APPEAL from an order of
the circuit court for La Crosse County: DENNIS G. MONTABON,
Judge.� Affirmed.�
����������������������� Before Dykman, Sundby,
and Vergeront, JJ.
����������������������� DYKMAN, J.�� This is an appeal from an order directing
Robert Tooke to pay his former wife, Elizabeth Tooke, $7,534.80, the amount of
a real estate special assessment.[1]�� Because we conclude that the parties'
marital settlement agreement required Robert to pay the special assessment, we
affirm.
����������������������� Elizabeth and Robert
were divorced in 1992.� A part of their
marital settlement agreement provided:�
"Any outstanding debt or liability not disclosed shall be the
responsibility of the person who incurred it, and that party shall hold the
other harmless for its payment."�
The parties further agreed:
Both parties agree that the provisions of this
agreement shall survive any subsequent judgment of (divorce/legal separation)
and shall have independent legal significance.�
This agreement is a legally binding contract, entered into for good and
valuable consideration.� It is
contemplated that in the future either party may enforce this agreement in this
or any other court of competent jurisdiction.
����������������������� Several of the major
assets involved in the divorce included parcels of land located in Onalaska,
Wisconsin.� Elizabeth received this land
which was estimated by her to be worth about $550,000, and by Robert to be
worth $585,000.
����������������������� Unfortunately, Robert's
financial statement did not mention that in 1988, the City of Onalaska had
levied special assessments against the parcels of land totalling
$7,534.80.� After the divorce, Elizabeth
discovered the special assessments and asked the trial court to order Robert to
pay them.� The trial court did so, and
Robert appeals.� His brief raises three
issues:
����������������������� 1. Whether
the trial court can modify a property settlement.
����������������������� 2. Whether
Elizabeth's only remedy is a constructive trust.�
����������������������� 3. Whether
the range of value on the property prevented the special assessments from being
an omitted asset.
����������������������� In Robert's reply brief,
he mentions that special assessments are not debts.� But we generally do not review issues raised for the first time
in a reply brief.� State v.
Schindler, 146 Wis.2d 47, 51 n.2, 429 N.W.2d 110, 112 (Ct. App. 1988), modified,
State v. Lee, 175 Wis.2d 348, 499 N.W.2d 250 (Ct. App.
1993).� Permitting an appellant to raise
new issues in a reply brief gives that party an unfair advantage because the
respondent cannot counter such arguments.�
As we concluded in Schindler, we see no reason to depart
from this rule here.[2]� Therefore, we will only address the three
issues that Robert raises in his brief-in-chief.
� MODIFICATION OF PROPERTY SETTLEMENT���
����������������������� Robert asserts, without
citing any authority, that a trial court cannot modify a property division, and
that forcing him to pay the special assessments is such a modification.� We agree that a trial court may not modify a
property division. Section 767.32(1), Stats.� See also Wright v. Wright, 92
Wis.2d 246, 263, 284 N.W.2d 894, 903 (1979), cert. denied, 445 U.S. 951
(1980).� But the trial court did not
modify the parties' agreement�it enforced the agreement.� The parties stipulated in their marital
settlement agreement that any undisclosed debt or liability would be the
responsibility of the person who incurred it.�
And, they agreed that this provision could be enforced in the trial
court which entered the order of which Robert complains.� Were we to accept Robert's assertion, no
property settlement could be enforced, even if the parties agreed that it could
be.� This would be contrary to Rotter
v. Rotter, 80 Wis.2d 56, 62-63, 257 N.W.2d 861, 864-65 (1977), where
the court concluded that trial courts have inherent powers in family court
matters to remedy injuries arising from violations of or noncompliance with
their judgments.� We conclude that the
trial court did not modify the parties' property division by requiring Robert
to pay the special assessments.
CONSTRUCTIVE TRUST
����������������������� Section 767.27(5), Stats., provides in pertinent part:
If any party deliberately or negligently fails
to disclose information required by sub. (1) and in consequence
thereof any asset or assets with a fair market value of $500 or more is omitted
from the final distribution of property, the party aggrieved by such nondisclosure
may at any time petition the court granting the annulment, divorce or legal
separation to declare the creation of a constructive trust as to all
undisclosed assets, for the benefit of the parties and their minor or dependant
children, if any, with the party in whose name the assets are held declared the
constructive trustee, said trust to include such terms and conditions as the
court may determine.
����������������������� Robert asserts that
because Elizabeth did not petition for a constructive trust and because the
trial court did not order a constructive trust, the trial court's order is
improper.� Robert does not explain his
contention further.� He cites no
authority for his position, except for several cases holding that an
unambiguous statute must be interpreted literally.� We agree, but that does not explain why � 767.27(5), Stats., is applicable.� We are unable, without more from Robert, to
see the significance of the statute to Robert's case.� Section 767.27(5) pertains to undisclosed assets.� Elizabeth did not complain that Robert
failed to disclose an asset but asserted that he omitted a debt.� Robert does not explain how creating a
constructive trust over a debt would be anything other than an exercise in
futility.� Even if � 767.27(5) were
to apply to debts, the use of the word "may" in the statute means
that such a procedure is not required.� See
Schmidt v. Department of Local Affairs & Dev., 39 Wis.2d 46,
53, 158 N.W.2d 306, 310 (1968) (use of the word "may" is permissive
unless different construction is demanded by statute).� Perhaps Robert is suggesting that despite
the use of the word "may," the statute is the exclusive remedy for an
undisclosed liability.� But he fails to
explain or cite any authority for this proposition.� We conclude that � 767.27(5) is inapplicable to this case.
UNCERTAIN VALUE
����������������������� Robert
asserts that the value of the property ranged from $500,000 to $550,000.� He concludes that the real estate was not
omitted from his financial statement.�
We agree, but we cannot see the significance of this conclusion.� Even Elizabeth does not contend that Robert
omitted the real estate.� Robert then
notes: "To the extent that the sidewalk special assessment might be
considered a debt, such improvement actually enhanced the resale and
development value of the real estate and should [in] equity go with the
property in any event."� But the
special assessments were made in 1988, and Robert's financial statement showed
that the appraisals on the real estate were made in 1990 and 1991.� The improvements which caused the special
assessments would have been a part of the value of the real estate at the time
of the appraisals.� We reject Robert's
third assignment of error.
����������������������� By the Court.�Order
affirmed.
����������������������� Not recommended for
publication in the official reports.
No.� 95-1116-FT(C)
����������������������� SUNDBY, J. (concurring). I
conclude that the trial court reached the right conclusion for the wrong
reasons.� The marital settlement
agreement provided:� "Any
outstanding debt or liability not disclosed shall be the responsibility of the
person who incurred it, and that party shall hold the other harmless for its
payment."� A special assessment is
not a debt of the party.� A municipality
may not sue the owner of the property for special assessments.
����������������������� However, special
assessments are a lien against property.�
Therefore, Robert was required to show on the standard form the lien of
the special assessment.� The standard
financial disclosure form contains the following:� "3.� DEBTS AND
OBLIGATIONS:� Attach schedules if
necessary.� Include:� Mortgages and Liens...."� (Emphasis added.)� Robert did not show the lien of the special assessment and in
that respect he violated the requirement that he make full disclosure of all
debts and obligations.� Therefore, I
concur in the majority opinion.
���� [2] Even
were we to consider this argument, we would likely reach the same result.� Common sense dictates that a special
assessment is a debt because if the owner of real estate does not pay a special
assessment, the land is sold to pay the debt.�
The supreme court took this common sense approach in Riesen v.
School District No. 4, 192 Wis. 283, 292, 212 N.W. 783, 786 (1923),
where the court said:�
Certain real estate of the school district had
been assessed for special improvements, and the district was liable for the
payment thereof.� It is the contention
of the appellants that this amount should not be considered as a liability
against the district.� There can be no
question but that this was an indebtedness of the district which had to be paid
in the future.� It was not a liability
for current expenses, and therefore it should be considered, as the court held,
a future capital liability.
������������� The school district had argued that a special assessment against its real estate was not a debt.� As the supreme court noted, the special assessment had to be paid in the future and was therefore a debt.� In his reply brief, Robert has made the same argument as the school district did in Riesen.� But he does not explain why we should not reach the same result as the court reached in Riesen.�