COURT OF
APPEALS DECISION DATED AND
RELEASED September
26, 1996 |
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. 95-1751
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN RE
THE MARRIAGE OF:
DONALD
R. STRINGER,
Petitioner-Appellant,
v.
JOYCE
D. STRINGER,
Respondent-Respondent.
APPEAL
from a judgment of the circuit court for Sauk County: VIRGINIA
WOLFE, Judge. Affirmed in part;
reversed in part and cause remanded.
Before
Dykman, P.J., Paul C. Gartzke and Robert D. Sundby, Reserve Judges.
PER
CURIAM. Donald Stringer appeals from both the maintenance
award and the property division of his divorce judgment, claiming that the
circuit court erroneously exercised its discretion. We conclude that:
(1) the trial court erroneously exercised its discretion in
awarding maintenance because it failed to properly explain why the chosen
amount was appropriate; and (2) the trial court did not erroneously
exercise its discretion in its determination of the property settlement.
BACKGROUND
On
June 15, 1994, Donald Stringer petitioned for a divorce from Joyce
Stringer. The parties had one son,
Timothy, who had reached the age of majority before the divorce proceedings
began.
Since
1979, the Stringers operated a veal farm incorporated under the name of Oaklawn
Farms in Neillsville, Wisconsin. At one
time, Oaklawn Farms was successful and debt free. However, by the time of the Stringers' separation, the
corporation was nearly bankrupt. The
real estate was sold in full satisfaction of a $160,000 debt to the bank. In July 1993, an auction was held for the
sale of the corporation's machinery and equipment as well as other personal
household furnishings. Joyce received
approximately $12,000 from the auction after all debts were satisfied. Donald had moved from the residence and did
not take part in the auction or the sale of the farm.
When
Donald moved from the parties' residence in May 1993, he took only his motorcycle,
a pistol and the proceeds of his individual retirement account (IRA). Donald spent all the proceeds of his IRA
before finding employment in August 1993 at the Underhill Veal Farm. At Underhill, Donald usually took care of
256 calves at a wage of $1.15 per calf per week, earning a net of $1,053.70 per
month. Donald's job benefits included
medical insurance, free living quarters and major utilities.
After the separation,
Joyce moved to Phoenix, Arizona. Joyce
used one of her IRAs valued at approximately $7,600 to subsidize her living
expenses before finding employment in the reservation department at America
West Airlines on January 6, 1994. Joyce
earned a net of $978.56 per month and her monthly expenses were $1,195.10.
The
divorce trial was held on April 20, 1995.
The court granted the divorce and ordered Donald to pay Joyce $10,000 as
a property settlement and $250 per month indefinitely for maintenance. Donald appeals.
DISCUSSION
Donald
first contends that the trial court erroneously exercised its discretion in its
calculation of the maintenance award.
The determination of the amount and duration of maintenance rests within
the sound discretion of the trial court and will not be overturned unless the
court erroneously exercised its discretion.
LaRocque v. LaRocque, 139 Wis.2d 23, 27, 406 N.W.2d 736,
737 (1987). Discretion is properly
exercised when the court arrives at a reasoned and reasonable decision by
employing a rational mental process through which the facts of the record and the
law relied upon are stated and are considered together. Id.
Section
767.26, Stats., governs
maintenance.[1] This section is designed to further two
objectives: to support the recipient
according to the parties' needs and earning capacities and to ensure a fair and
equitable financial arrangement in each case.
LaRocque, 139 Wis.2d at 32-33, 406 N.W.2d at 740. Donald specifically contends that the
circuit court failed to take the fairness objective of § 767.26 into
account. We agree.
The
circuit court must set forth the factors on which it relied in reaching the
maintenance award. Lacey v. Lacey,
45 Wis.2d 378, 387, 173 N.W.2d 142, 147 (1970). The court offered the following explanation for its $250 per
month maintenance award:
Regarding
maintenance it is clear that Mrs. Stringer cannot meet her current needs. I find it reasonable, and that in addition
as well as depleting her marital assets which were not appropriate, she has
health difficulties that are going to involve major surgery.
This is a marriage
of longstanding. Maintenance is appropriate. I will award maintenance in the amount of
$250 per month. That will commence May
1 and the first of every month thereafter.
This
explanation is not sufficient to justify the court's award. Although the court indicates that Joyce must
undergo surgery, it makes no finding that this surgery will diminish her
ability to earn a living over the long term, thereby justifying indefinite
maintenance. In making its
determination, the court relied only on the length of the marriage and the fact
that Joyce cannot meet her current needs.
The court did not address the educational level of the parties, Joyce's
earning capacity or the feasibility that she may become self-supporting. Nor did the trial court consider Donald's
income and expenses to determine the fairness of awarding Joyce $250 per month
in maintenance. We conclude that the
court erroneously exercised its discretion and, therefore, we reverse and
remand to the trial court for a redetermination of the maintenance issue.
Donald
next argues that the trial court erred in its division of the marital
property. First, Donald contends that
the court erred in the valuation of the assets. We disagree.
Property
division generally rests within the sound discretion of the court. Brandt v. Brandt, 145 Wis.2d
394, 406, 427 N.W.2d 126, 130 (Ct. App. 1988).
We will not overturn the trial court's decision unless it is premised on
legal or factual errors. Id.
Assets
must be valued as of the date of divorce unless special circumstances warrant
deviation from this rule. Id.
at 421, 427 N.W.2d at 136. Special
circumstances will be found only in cases in which the parties have little, if
any, control over the situation and have not caused or contributed to the
special circumstances. Id.
at 422, 427 N.W.2d at 136.
In
this case, no special circumstances justify a different valuation date. Donald left the household in May 1993. He chose not to participate in the sale of
the business or liquidation of its assets.
Donald, as co-owner of the shares of the corporation, could have helped
exercise control over the disposition of the marital assets. The court did not find that Joyce wasted or
intentionally depleted the marital estate.
Thus, Donald may not now argue that special circumstances existed which
justified a different property valuation date.
We conclude that the trial court did not erroneously exercise its
discretion by concluding that the ultimate property division should be
determined as of April 20, 1995, the date of the divorce.
Donald
next claims that the court erred in charging him with the value of some guns
because he testified that he does not have them in his possession or know of
their location. The testimony of the
parties is conflicting about who has present possession of the gun collection.
When
there is a conflict in testimony, the trial court is the ultimate arbiter of
the credibility of witnesses and the weight given to the testimony. Gardner v. Gardner, 190 Wis.2d
216, 243, 527 N.W.2d 701, 710 (Ct. App. 1994).
We will not overturn the court's assessment of credibility unless the
inferences drawn from the testimony were unreasonable. Id. Here, each party testified that the guns were in the other
party's possession. Joyce testified
that their son, Tim, took the guns because Donald told him "he could take
whatever he wanted." It was her
understanding that Donald had given the guns to Tim. After weighing the relative credibility of the parties, the court
stated: "I grant the testimony is
conflicting, but under the circumstances I believe Mrs. Stringer and the
testimony that was given and that either they are in Mr. Stringer's possession
or Tim's possession or have been disposed by them." The trial court's inference was reasonable
based on the testimony. Thus, the court
did not err in assigning the value of the guns to Donald.
Donald
also argues that the trial court erred in assigning him the credit card debt
that accumulated after the parties separated.
We disagree. The court found
that the visa bill covered legitimate living expenses and money for farm
necessities during the parties' separation.
Because Donald was not contributing to Joyce's living expenses or for
farm costs and necessities during this period, it was within the court's discretion
to charge Donald with these costs.
Donald
last contends that the judge attempted to punish him for marital misconduct
when she stated:
It is clear to the
court that Mr. Stringer made no provisions or did not assist in any way in the
marital property or the financial grave difficulties that were existing at the
time he left in May of 1993. He walked
out. He has to take the lumps that go
along with that.
The
court may not consider marital misconduct when determining the proper
allocation of marital property. Dixon
v. Dixon, 107 Wis.2d 492, 502, 319 N.W.2d 846, 851 (1982). Instead, the legislature intended property
division to be based on the needs of the parties, rather than on the assignment
of blame. Id. at 503, 319
N.W.2d at 851.
The
trial judge's comments do not establish that she intended to penalize
Donald. The judge was referring to the
problems Joyce had with liquidating the marital assets. She merely noted that because Donald chose
not to participate in the sale of the farm or marital property, he could not
later complain about how the disposition was accomplished. Nor is there any indication that the judge
did, in fact, improperly allocate property as a punishment for Donald walking
out. Therefore, we reject Donald's
claims that the judge improperly considered marital misconduct in calculating
the property division.
By
the Court.—Judgment affirmed
in part; reversed in part and cause remanded.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Section 767.26, Stats., provides that when granting a divorce, the court may
order maintenance payments to either party for a limited or indefinite length
of time after considering: (1) the
length of the marriage; (2) the age, physical and emotional health of the
parties; (3) the division of property made under § 767.225, Stats.; (4) the educational level
of each party; (5) the earning capacity of the party seeking maintenance;
(6) the feasibility that the party
maintenance can become self-supporting; (7) the tax consequences to
both parties; (8) any mutual agreements made by the parties; (9) the
contribution by one party to the education, training or increased earning power
of the other; and (10) other factors as the court may in each case deem
relevant.