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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 12, 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. 95-1855-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
FRANCIS E. YOHNK,
Petitioner-Respondent,
v.
KLARA YOHNK,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Chippewa County:
RODERICK A. CAMERON, Judge. Affirmed
in part and cause remanded with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. This matter arises out of post divorce
proceedings. Klara Yohnk appeals an
order determining that her interest in her former husband's business, Amstar
Properties partnership, is $7,163.18.[1] She argues that the trial court erred
because it failed to consider the partnership's income and failed to award her
one-half of his accrued wages. Because
the trial court properly valued her interest, we affirm that portion of the
order. Because the trial court made no
findings with respect to accrued wages, we remand to the trial court for
findings.
The parties were
divorced April 22, 1992. Klara's
husband, Francis, owned a one-half interest in a business partnership known as
Amstar. Amstar was a real estate
development business that owned condominiums, apartments and a motel. The divorce judgment provided that Francis
may liquidate his interest in the partnership and pay Klara
50%
of the net amount of [Francis'] interest in the Amstar Partnership after
payments of the debts and obligations associated with said partnership .... If
the Amstar Partnership is liquidated, [Klara] shall have to agree to the
valuation of the debts and assets. ... Said equal division with [Klara] shall
include payment to her of one-half of any proceeds received for accrued wages
owing to [Francis] by the Amstar Partnership.
When Amstar was
dissolved in March 1994, Francis' accountant prepared an asset and liability
statement. According to the statement,
based upon values agreed upon by the partners, Francis received total assets of
$653,367.67 and assumed debts in the sum of $639,041.30. His net equity, represented by the
difference between the assets and debts, equaled $14,326.37. Klara does not challenge these values.
Francis' accountant
testified that no draws were taken from the partnership over the years in
question. He testified that when the
five properties were sold in 1993, the tax returns reflect a taxable gain,
calculated by a sales price, less the purchase price, plus the
depreciation. Because the business had
declared depreciation for tax purposes as an expense against income,
depreciation of $66,302 was added back in for tax purposes when the properties
were sold. He testified that this
accounting procedure did not affect the actual sales price, nor affect the amount
received by the partnership for each sale.
The 1993 return also reflects a $14,000 payment to Francis that Amstar
had owed him at the time of the divorce.
Klara had moved for
discovery of all the details of the dissolution, an accounting of all income
and a determination of their one-half interest in Amstar. After the hearing, Klara's attorney stated:
"I don't think my client is entitled to Mr. Yohnk's half that he got
at the time of dissolution, but I think she's entitled to half of the income
during the applicable period of time that the partnership ran before it
dissolved." The trial court
disagreed, finding that her interest was represented by the sum Francis
received upon dissolution: "They
used real property values, not a depreciation cost basis, for computations
which tells me that the depreciation, while it has some value for tax purposes
and value for accounting purposes, it didn't have any actual value to the
liquidation of the partnership."
The
court found that Francis' actual net value of his interest upon liquidation was
$14,326.37, and that Klara's interest was one-half this amount.
Klara argues that the
trial court erred by not considering partnership income during the years after
the divorce and before the dissolution.
We disagree. First, the judgment
of divorce does not provide that Klara is entitled to a portion of partnership
income. It states that she is entitled
to one-half of Francis' interest upon dissolution. Second, the accountant's testimony that no partnership income was
distributed is undisputed.
The record reflects that
the trial court correctly valued her interest.
Generally, the valuation of an asset is a finding of fact. Sharon v. Sharon, 178 Wis.2d
481, 488, 504 N.W.2d 415, 418 (Ct. App. 1993).
We do not overturn a trial court's findings of fact unless they are
clearly erroneous. Section 805.17(2), Stats.
Klara contends that tax returns showed that Amstar had income of $66,302
and that her interest entitles her to a portion of that income. The record
fails to support her argument. The
accountant, the CPA who prepared the tax returns, testified that the income
reported on the partnership return reflected $66,302 in depreciation added back
into the calculation of taxable gain resulting from the sale of partnership
properties. The accountant testified that
the taxable income did not have any reflection on the sale price received by
the partnership. Klara fails to show
that the taxable partnership income was available for distribution.
Klara does not dispute
that the partnership assets were set at fair market value at the time of
dissolution. Klara fails to demonstrate
that the assets' fair market values do not reflect partnership income over the
years in question. The record supports
the trial court's determination. Cf.
Sharon, 178 Wis.2d at 489, 504 N.W.2d at 418-19 (partnership
interest properly valued according to sums received by withdrawing partner).
Klara also argues that
the trial court erred by not awarding her one-half of the accrued wages that
Amstar paid Francis, in the sum of $14,000 owing to him at the time of the
divorce. Francis responds that Klara
failed to request this sum in her motion or at the hearing.
The divorce judgment
states that Klara is to receive "one-half of any proceeds received for
accrued wages owing to [Francis] by the Amstar partnership." Testimony was received that Francis was paid
$14,000. There was also proof that due
to certain losses, Francis' net taxable income from the partnership was $4,341.
Although the judgment
provided for payment to Klara of proceeds Francis received for accrued wages,
Klara did not specifically ask the trial court to address this issue. Her motion merely referred to the interest
in the partnership, not Francis' accrued wages. Nonetheless, because the divorce judgment specifically addressed
accrued wages, and because the issue was not fully tried, we conclude that the
interests of justice require the matter to be remanded to the trial court. See § 752.35, Stats.
On remand, the trial court shall determine the amount of "any
proceeds received for accrued wages" owing to Francis by Amstar at the
time of the divorce, but paid thereafter, and award Klara her portion under the
judgment. Cf. State v. Williams, 104 Wis.2d 15, 22,
310 N.W.2d 601, 605 (1981) (the appellate court may remand for findings and
conclusions).
By the Court.—Order
affirmed in part and cause remanded with directions. Costs are awarded to petitioner-respondent.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.