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COURT OF APPEALS DECISION DATED AND RELEASED February 15, 1996 |
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. 95-2243-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
HELEN MAE BROWN,
Petitioner-Respondent,
v.
ROBERT G. BROWN,
Respondent-Appellant.
APPEAL from a judgment
and an order of the circuit court for Rock County: PATRICK J. RUDE, Judge. Judgment
affirmed and cause remanded with directions; order affirmed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. Robert Brown appeals from the judgment divorcing him
from Helen Mae Brown, and an order finding him in contempt for violating its
provisions. The issues concern the
court's division of marital property and Helen's maintenance award. We affirm the judgment and remand with directions. We also affirm the contempt order.[1]
Robert, then
sixty-seven, and Helen, then sixty-one, divorced after forty-one years of
marriage. Robert's income consisted of
a $999 per month pension from General Motors, and $846 per month from social
security. Helen received $56 per month
in SSI disability pay, and $150 per month in rental income. After Helen commenced the divorce in 1991,
Robert closed out four bank accounts totaling about $223,000. He testified at trial that he spent some of
the money on unspecified medical bills, and lost the rest gambling. In addition to that money, the parties owned
real estate worth $46,000, various cars and other property worth about $15,000
and Robert's General Motors pension.
Part of the missing
$223,000 came from a CD purchased for $100,000. Robert testified that he purchased it with money given to him by
his mother. For that reason, he asked
that it be excluded from the marital estate.
In the decision rendered
from the bench, the trial court expressly disbelieved Robert's testimony that
he had spent or lost the missing funds.
As for the missing CD proceeds, the trial court found that the gifted
money had, at some point, become commingled with marital funds. All of the missing amounts were therefore
included in the marital estate, and Helen received a one-half share of
them. She also received a one-half
share in the General Motors pension.
With the exception of Robert's car and other negligible property in his
possession, Helen received all of the remaining property. However, the court declared that it would
offset the value of the property against the cash assets, if found, after
deducting the costs of finding those assets.
The court also gave Robert a thirty-day option to purchase any of the
several vehicles awarded to Helen.
Helen's maintenance
award consisted, temporarily, of one-half of Robert's monthly social security
check, less $75 representing Robert's share of Helen's rental income, and
one-half the pension check until entry of a Qualified Domestic Relations
Order. The court ordered the
maintenance award reduced after Helen's sixty-second birthday, in three months,
by one-half the amount Helen could then receive from her own social security
pension.
Helen's counsel drafted
the divorce judgment. By that time,
Robert was no longer represented by counsel.
The judgment as drafted and signed does not provide for reduced maintenance
after Helen's sixty-second birthday, does not grant Robert the option to
purchase the autos awarded Helen and does not recite the arrangement by which
the court would offset the value of Helen's property against the missing money,
if found. It was signed for the presiding
judge by another judge of the court.
Four months after the
trial and nine days after entry of the divorce judgment, the court entered a
contempt order based on Robert's failure to provide titles and fees to the cars
awarded to Helen, for removing property from Helen's premises awarded to her at
trial, and for failing to pay any maintenance since the trial.
Property division is
left to the trial court's discretion. Haack
v. Haack, 149 Wis.2d 243, 247, 440 N.W.2d 794, 796 (Ct. App.
1989). Property that one party acquires
by gift is exempt from the marital property division unless exempting it would
create hardship for the other party.
Section 767.255, Stats. However, gifted property may also be divided
if it loses its character as one spouse's separate property. Zirngibl v. Zirngibl, 165
Wis.2d 130, 136, 477 N.W.2d 637, 639 (Ct. App. 1991). Income generated from gifted property is not exempt from the
division. Friebel v. Friebel,
181 Wis.2d 285, 294, 510 N.W.2d 767, 771 (Ct. App. 1993).
The trial court properly
determined that Robert's $100,000 CD lost its character as separate gifted
property. Robert testified that over
forty years ago he bought a house in his name for his mother's benefit with
some money from her. Later, but still
"many years ago," he offered her the accumulated rent and $25,000
sale proceeds from the house. The gift
consisted of her refusal to accept the money.
Robert offered no evidence as to the total amount involved, where it was
kept or how it was invested until he purchased the $100,000 CD in 1989. The only reasonable inference is that a
substantial part of that sum accumulated during the marriage and was therefore
marital property. The trial court
reasonably inferred that the original gift amount was also divisible because it
had lost its character as individual property during the many years that Robert
failed to account for it.
The trial court properly
divided all of the other money that disappeared after the divorce
commenced. Robert's own testimony and
other evidence demonstrated that he was a very frugal man. He offered no evidence to support his claim
of uninsured medical expenses or gambling losses. Having rejected Robert's unsupported testimony, the trial court reasonably
inferred that the money still existed in hidden locations. Additionally, even if Robert had, in fact,
lost the money gambling, the trial court could still properly consider it part
of the marital estate. Section 767.275,
Stats.
The trial court properly
held Robert in contempt. At the time of
trial, Robert's maintenance arrearage exceeded $1,000. The trial court's order temporarily
continued maintenance at $797 per month.
In the ensuing three months, Robert paid nothing, and also refused to turn
over the titles and keys to the automobiles awarded to Helen. The record discloses that these facts were
undisputed and that Robert offered no defense at the contempt hearing. He made no showing of inability to comply
with the terms for purging the contempt.
Although we affirm the
judgment, we remand to the trial court with directions to conform the judgment
to the original decision. It appears
probable that the substitute judge who signed the judgment failed to notice the
substantial discrepancies between the oral decision rendered by the presiding
judge and the judgment drafted by Helen's counsel.
By the Court.—Judgment
affirmed and cause remanded with directions.
Order affirmed. No costs to
either party.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.