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COURT OF APPEALS DECISION DATED AND FILED January 17, 2013 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No. 2008FA75 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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In re the marriage of: Bruce G. Winters, Petitioner-Respondent, v. Valerie L. Winters, Respondent-Appellant. |
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APPEAL from a judgment and an order of
the circuit court for Green County: william D. johnston, Judge. Affirmed.
Before Lundsten, P.J., Sherman and
Blanchard, JJ.
¶1 PER CURIAM. Valerie
Winters appeals the terms of maintenance and property division as set forth in a
judgment of divorce entered by the circuit court. Valerie argues on appeal that the circuit
court’s maintenance award was inadequate and that valuation errors in the
court’s division of property require correction. Valerie also argues that the circuit court
erred in denying her motion for reconsideration and for relief from judgment after
the Social Security Administration (SSA) made a finding that she was
permanently disabled. For the reasons
discussed below, we affirm.
Standard of Review
¶2 Decisions
regarding property division and maintenance in divorce proceedings are matters
typically left to the sound discretion of the circuit court. McReath v. McReath, 2011 WI 66, ¶21,
335 Wis. 2d 643, 800 N.W.2d 399. Whether
to grant relief from judgment and whether to grant a motion for reconsideration
also are discretionary decisions of the circuit court that will not be
disturbed on appeal absent an erroneous exercise of that discretion. See
Franke
v. Franke, 2004 WI 8, ¶54, 268 Wis. 2d 360, 674 N.W.2d 832; Koepsell’s
Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd.,
2004 WI App 129, ¶6, 275 Wis. 2d 397, 685 N.W.2d 853.
Background
¶3 Valerie
and Bruce Winters were married in 1985, and this divorce action was commenced
in April 2008. The parties have two
children together, one of whom was still a minor at the time of the contested
divorce trial held on February 17, 2010.
At the time of trial, Bruce was employed as an operations supervisor at
MG&E with an annual income of $85,996.08, and Valerie was not
employed. Evidence was presented at
trial regarding Valerie’s history of health problems.
¶4 Following
the trial, the circuit court entered a decision and order dated April 12, 2010,
followed by findings of fact, conclusions of law, and a judgment of divorce
entered on June 18, 2010. The terms of
the judgment included a limited term maintenance award to Valerie in the amount
of $1,000 per month for three years. If
Valerie were to enroll in technical college for one semester to refresh her job
skills, she would receive $1,500 per month during that semester. The judgment did not include child
support. The circuit court’s findings of
fact specified that Bruce had assumed full responsibility for supporting their
minor son, who was then sixteen years old.
¶5 Valerie
moved for reconsideration and for relief from the court’s decision and order
dated April 12, 2010. Valerie filed a
second motion for relief from judgment following the circuit court’s entry of
its findings of fact, conclusions of law, and judgment of divorce. After briefing, the circuit court denied the
motions. Valerie now appeals.
Discussion
¶6 Valerie
argues three issues on appeal. First, she argues that, in determining
maintenance, the circuit court failed to apply the evidence correctly to
applicable law. Second, Valerie argues
that the circuit court used erroneous values in calculating the division of
property. Third, she asserts that the
SSA decision was a new factor that entitled her to relief from the original
judgment of divorce.
¶7 As
a threshold matter, we note that many of the arguments in the appellant’s brief
are undeveloped or are without merit under applicable law. The depth of our discussion below is
therefore proportional to the appellant’s development, or lack of development, of
each issue. Any arguments in the appellant’s
briefs that we do not address are either patently meritless or are so
inadequately developed that they do not warrant our attention. See Libertarian Party of Wisconsin v. State,
199 Wis. 2d 790, 801, 546 N.W.2d 424 (1996) (an appellate court need not address
arguments that “lack sufficient merit to warrant individual attention”).
Maintenance
¶8 Valerie
argues that the circuit court did not adequately consider the length of the
marriage, Valerie’s health problems, and the limitations on her ability to work
in determining the maintenance award. We
reject this argument because the record shows that the circuit court did take
these matters into consideration, and that the court produced a detailed,
written analysis of each of the statutory factors for determination of
maintenance, pursuant to Wis. Stat. § 767.56.[1] In particular, the court discussed in detail
Valerie’s physical and emotional health, her earning capacity, and the
feasibility that she could become self-supporting at a standard of living
reasonably comparable to that enjoyed during the marriage. See
§ 767.56(2), (5), and (6).
¶9 The
circuit court acknowledged that Valerie had been treated for lymphoma and that
she had surgery in 2002 to remove a cancerous tumor from her groin. The court also discussed the fact that, while
Valerie was undergoing radiation treatments, she began to have pain in her hip,
groin, and back, and had trouble walking.
The court referenced the fact that Valerie had hip surgery in June of
2008 and that, at trial, Valerie testified that she was not doing well and was
unable to stand or sit for long periods of time. The court further acknowledged that Valerie
had been diagnosed with depression, had a history of asthma, and that she had received
temporary disability payments from SSA.
¶10 In
addition, the court considered testimony from Valerie’s expert witness, Gregory
Wisniewski, who is an expert in the area of vocational counseling. Wisniewski opined that, if Valerie were to
enter the labor market, there would be a number of options she could pursue,
but that she would need to limit the amount of time she spent sitting and that
she would need to refrain from lifting more than ten pounds.
¶11 After
reviewing the evidence, the circuit court concluded that Valerie had shown that
she had medical conditions affecting her ability to work, but that she had not
established to the court’s satisfaction that she would be unable to accept the
sort of positions described by Wisniewski, which included clerical work or
returning to her former field of dental hygiene after taking a semester of
classes to refresh her skills. The
court’s finding in this regard is supported by the absence of evidence
indicating what income Valerie would need to allow her to have the standard of
living the parties had enjoyed during the marriage and her failure to present
expert medical testimony to support her own assertions regarding her physical
and mental health.
¶12 Valerie
also argues that the circuit court’s maintenance decision was erroneous because
it misapplied child support law. We note
that the judgment of divorce did not include any award of child support. Rather, the judgment specified that Bruce had
already assumed full responsibility for supporting the parties’ minor son. Valerie argues that the circuit court erred
in considering the monthly amount paid by Bruce toward child support when
determining maintenance. However, Valerie
fails to provide any legal authority for her assertion that the circuit court’s
handling of the child support issue was contrary to law. She cites the statute governing child
support, Wis. Stat. § 767.511,
but does not cite any case law interpreting the statute in a way that supports
her position. Bruce argues in his respondent’s
brief that the circuit court was obligated to consider his support for their
minor child before determining maintenance, citing Wis. Admin. Code § DCF 150.03(6). Valerie does not refute Bruce’s argument in
her reply brief and, thus, we assume she concedes the point. See Charolais Breeding Ranches, Ltd. v. FPC Secs.
Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979).
¶13 Although
Valerie asserts numerous ways in which she is dissatisfied with the circuit
court’s maintenance decision, she fails to identify any error of law or erroneous
fact finding that would constitute grounds for reversing the circuit court.
Valuation
Of Property
¶14 Valerie
asserts that the circuit court based its property division decision upon
incorrect valuations of the parties’ property.
She asserts that the circuit court’s findings of fact regarding the
values of the parties’ property were based upon numbers introduced at trial,
when they should have been based upon values set forth by Bruce in his
post-trial brief.
¶15 We
will not disturb a circuit court’s findings of fact on appeal unless those
findings are contrary to the great weight and clear preponderance of the
evidence. Rasmussen v. General Motors Corp.,
2011 WI 52, ¶14, 335 Wis. 2d 1, 803 N.W.2d 623.
Valerie fails to present a developed argument to persuade us that the
circuit court’s findings as to the values of the parties’ property were against
the great weight and clear preponderance of the evidence. She does not explain the basis for the values
she alleges to be correct or why, specifically, the values referenced in the
court’s findings of fact were incorrect.
We need not consider arguments that are unsupported by adequate factual
and legal citations or that are otherwise undeveloped and, accordingly, we
affirm the circuit court’s property division decision on that basis. See Dieck v. Unified Sch. Dist. of Antigo,
157 Wis. 2d 134, 148 n.9, 458 N.W.2d 565 (Ct. App. 1990) (unsupported factual
assertions); State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct.
App. 1992) (undeveloped legal arguments).
Decision
Of The SSA
¶16 Valerie
also argues that it was error for the circuit court to deny her motion for
reconsideration and for relief from judgment after she submitted documentation
to the court showing that, after trial, she had received a decision from an SSA
appeals council that entitled her to disability benefits. In support of her argument, Valerie cites both
the statutory provision for motions for reconsideration after trial, Wis. Stat. § 805.17(3), and the
statute that specifies when relief from judgment is available, Wis. Stat. § 806.07(1)(b).
¶17 To
prevail on a motion for reconsideration, a party must either present newly discovered
evidence or establish a manifest error of law or fact. Koepsell’s, 275 Wis. 2d 397, ¶44. Under Wis.
Stat. § 806.07(1)(b), relief from judgment is available where there
is “[n]ewly-discovered evidence which entitles a party to a new trial under s.
805.15(3).” A new trial shall be ordered
in the interest of justice under Wis.
Stat. § 805.15(3) if the court finds that: “(a) The evidence has come to the moving party’s
notice after trial; and (b) The moving party’s failure to discover the evidence
earlier did not arise from lack of diligence in seeking to discover it; and (c)
The evidence is material and not cumulative; and (d) The new evidence
would probably change the result.”
¶18 First,
Valerie presents no legal support for the proposition that the circuit court
was required to consider fact finding by a federal administrative body. Thus, if she means to argue that the circuit
court erred by not considering this fact finding, she does not support such an
argument.
¶19 Second,
Valerie has not met her burden of showing that, at the time of trial, she did
not have notice of the evidence that
the SSA appeals council relied on in making its decision. The SSA decision is dated March 9, 2010,
which indeed is after the conclusion of the trial in this case. However, the evidence on which the SSA
appeals council relied does not post-date the trial. As Valerie admits in her brief, the SSA
council considered medical records and letters from September 2001 through
November 2008. Valerie had the
opportunity to present this and other evidence of her claimed disability at
trial and to demonstrate how it pertained to maintenance. She elected to present evidence in the form
of her own testimony and the testimony of her vocational counseling expert,
Wisniewski. She did not present any
testimony from medical experts, even though she listed eight medical doctors on
her expert witness disclosure list. “A
party may not use a motion for reconsideration to introduce new evidence that could
have been introduced at [a prior] phase.”
Koepsell’s, 275 Wis. 2d 397, ¶46. Because Valerie fails to identify any newly discovered
evidence or to establish a manifest error of law or fact, we affirm the circuit
court’s denial of her motion for reconsideration and for relief from judgment.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.