Zehowski v. Peterson

2019 WI App 1, 923 N.W.2d 174, 385 Wis. 2d 211
CourtCourt of Appeals of Wisconsin
DecidedNovember 20, 2018
DocketAppeal No. 2017AP2314
StatusPublished

This text of 2019 WI App 1 (Zehowski v. Peterson) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zehowski v. Peterson, 2019 WI App 1, 923 N.W.2d 174, 385 Wis. 2d 211 (Wis. Ct. App. 2018).

Opinion

PER CURIAM.

¶ 1 Mary Zehowski appeals a divorce judgment that terminated her marriage to Timothy Peterson. She contends, for various reasons, that the circuit court erroneously exercised its discretion when dividing the parties' property.1 We reject Zehowski's arguments, with two exceptions. Specifically, we agree with Zehowski that the circuit court erred by including her premarital Target 401(k) in the property division, and by failing to include the value of Peterson's wedding ring. We therefore affirm the divorce judgment in part, reverse in part, and remand for the circuit court to re-equalize the property division after excluding Zehowski's Target 401(k) and including the value of Peterson's wedding ring.

BACKGROUND

¶ 2 Zehowski and Peterson began living together in June 2004 and were married in September 2009. Both parties brought property to the marriage, and the circuit court found that they each made "a substantial amount of money." They did not enter into a prenuptial agreement.

¶ 3 Zehowski petitioned for divorce in August 2015, after nearly six years of marriage. The parties did not have any children together, and they both agreed to waive maintenance. Consequently, the only disputed issue during the divorce proceedings was the division of the parties' property.

¶ 4 A six-day trial commenced on January 11, 2017, and concluded on August 16, 2017. The circuit court granted the parties a judgment of divorce on the first day of trial. In October 2017, each party submitted a proposed findings of fact, conclusions of law, and judgment (hereinafter, "proposed judgment"), along with a net worth statement. The circuit court adopted Peterson's proposed judgment verbatim. At our request, the court subsequently entered an amended judgment, which clarified that the "Exhibit A" referenced in the court's original judgment was Peterson's net worth statement. The net result of the property division was that Peterson was required to make an equalization payment of $71,750.83 to Zehowski. Zehowski now appeals, arguing the court erroneously exercised its discretion in various ways. Additional facts are included below.

DISCUSSION

¶ 5 The division of property at divorce is entrusted to the circuit court's discretion and will not be disturbed on appeal absent an erroneous exercise of discretion. LeMere v. LeMere , 2003 WI 67, ¶ 13, 262 Wis. 2d 426, 663 N.W.2d 789. A court properly exercises its discretion when it examines the relevant facts, applies a proper standard of law, and uses a demonstrated rational process to reach a reasonable conclusion. Id. A discretionary determination may involve both findings of fact and conclusions of law. Covelli v. Covelli , 2006 WI App 121, ¶ 13, 293 Wis. 2d 707, 718 N.W.2d 260. We review questions of law independently, but we will not overturn the circuit court's factual findings unless they are clearly erroneous. Id.

¶ 6 Here, Zehowski claims the circuit court erroneously exercised its discretion when dividing the parties' property by: (1) applying an incorrect presumption regarding the division of the marital estate; (2) erroneously dividing assets and liabilities that the parties acquired during the marriage; (3) treating the parties' respective assets and liabilities differently; and (4) adopting Peterson's proposed judgment verbatim, with no supporting analysis, even though that document was "riddled with errors and inconsistencies." (Capitalization omitted.) We address each of these arguments in turn.

I. Presumption regarding the division of the marital estate

¶ 7 WISCONSIN STAT. § 767.61 (2015-16),2 governs the division of property at divorce. The statute provides that certain property of the divorcing parties is not subject to division-specifically, property acquired by gift or by reason of another's death-unless refusal to divide that property will create a hardship on the other party or on the children of the marriage. Sec. 767.61(2). The statute then sets forth a presumption that all of the parties' other property should be divided equally. Sec. 767.61(3).

¶ 8 Zehowski argues the circuit court failed to follow the statutory procedure when dividing the parties' property in this case. She argues that, under WIS. STAT. § 767.61, the court should have included all of the parties' property in the marital estate, aside from gifted or inherited property, and should have then presumed that property would be divided equally. Instead, Zehowski contends the court improperly presumed that all property brought to the marriage was the individual property of the spouse bringing it and, therefore, was not subject to division.

¶ 9 As an initial matter, Zehowski's position on appeal appears to be inconsistent with the position she took in the circuit court. During the first day of trial, when discussing the parties' respective positions regarding the property division, the following exchange took place between the court and the parties' attorneys:

THE COURT: Presumption is we start the date of marriage.
[PETERSON'S ATTORNEY]: Correct.
THE COURT: So to overcome that you have to have some pretty good evidence.
[ZEHOWSKI'S ATTORNEY]: Correct. And that's what I need to get on the record, Your Honor.

Based on this exchange, it appears Zehowski conceded that the circuit court could presume the property each party brought to the marriage was not divisible. The doctrine of judicial estoppel prevents Zehowski from adopting an inconsistent position on appeal. See Olson v. Darlington Mut. Ins. Co. , 2006 WI App 204, ¶ 4, 296 Wis. 2d 716, 723 N.W.2d 713.

¶ 10 In any event, regardless of any concession by Zehowski that the circuit court could presume property brought to the marriage was not subject to division, we conclude the court properly exercised its discretion in that regard. By presuming that Peterson and Zehowski would each retain their premarital property, the court essentially deviated from an equal division of the parties' marital estate. A court may deviate from an equal division of the marital estate after considering the factors set forth in WIS. STAT. § 767.61(3)(a)-(m).

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Bluebook (online)
2019 WI App 1, 923 N.W.2d 174, 385 Wis. 2d 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zehowski-v-peterson-wisctapp-2018.