*1 DeWitt, Plaintiff-Appellant, John R. DeWitt, Defendant-Respondent. M.
Janice Appeals
Court of July No. 78-925. Submitted briefs 11, 1979. 20, 1980. Decided June 761.) reported (Also *2 plaintiff-appellant For the the cause was on submitted Daphne S.C., Harms, the briefs Webb and Easton & counsel, all Madison. defendant-respondent
For the was submitted cause Cheryl on Rosen the brief Weston of Madison. Gartzke, Bablitch, Dykman, P.J.,
Before J. J. BABLITCH, presents question J. first This case Wisconsin; impression professional whether a educa- earning tion, capacity or the increased which it confers spouse it, may on properly who holds be considered estate, subject of a “asset” marital to division in a di- action, acquisition vorce where the part earnings and to the other attributable efforts spouse. judgment (plaintiff) appeals R. from a
John DeWitt awarding entered November a divorce to Janice (defendant) grounds M. on of cruel and in- DeWitt pursuant human ch. treatment former Stats. following (1975). plaintiff contentions makes the appeal: granting
(1) was That divorce the defendant against great weight preponderance and clear evidence. *3 considering
(2) in That trial court his law erred dividing degree as asset for distribution in the mari- tal estate. couple’s only in were married 1968. The
The Justin, year. The born in of that child, was December completed year college just her first defendant had college completed plaintiff one and the had semester marriage. time of the college 1968, plaintiff in fall of resumed The until his law fulltime student he obtained continued joined degree law firm until his father’s in 1975. He practice two his own May he entered when attorneys. taught parttime at also the Univer- He other find- sity trial court’s business school. The of Wisconsin plaintiff’s practice had net value at the no challenged appeal. is not of the trial time schooling, During years plaintiff’s the de- jobs, predominantly several fulltime at fendant worked assisting parttime secretary. legal also worked She as a ventures, including the business in several her husband buildings, providing com- apartment management of two janitorial running- mercial services, a restaurant, and de- veloping legal recording audio-visual service. She performed testified that she most of tasks, the household family handled finances, provided most of the care for the child this time. plaintiff
The jobs, usually worked at various on a parttime basis, during years he attended He school. remodeling also did extensive apartment work on an building couple purchased they in 1969, and which year. lived downpayment rent-free more than a $1,000 was obtained from the sale of some stocks the plaintiff prior marriage. building owned to the was profit portion sold at a pro- and a of the sales purchase ceeds was used to a home which the plaintiff performed also par- substantial work. The subsequently purchased home, ties a second which the de- process remodeling fendant was in the at the time of trial. graduated plaintiff school,
After the from law the de- quit employment fendant her fulltime and returned to col- lege parttime completed on a basis. She seven credits at University Wisconsin-Madison the 1975 fall se- mester and then enrolled the Madison Area Technical College, degree completed where she an associate in ac- counting during following year. testified that She university she intended to return to as a fulltime student the fall of and that she to obtain wished her bachelor’s there. The defendant also testified *4 marriage plaintiff of that at the time the she and the agreed financially preferable it the would be for complete degree'' plaintiff and to attend school his law college complete first, and that she would then her edu- plaintiff was no cation. The testified that there such marriage. understanding at the of the He said time rely on his wife’s financial that he would not have had family his for education because his have would helped through school, requested. him had he parties experienced sepa
The marital difficulties and attempted An rated for a short time 1976. reconcilia plaintiff tion failed and the commenced action January 1977, grounds on cruel of and inhuman treat 247, (1975).1 ment under ch. former Stats. The defend grounds. ant on counterclaimed divorce the same parties guilty trial court found that both of The were marriage. It cruel and inhuman treatment the the divorce to defendant under doctrine awarded the finding comparative rectitude,2 “scope per- effects of acts cruel and inhuman treatment by greater petrated plaintiff than those acts are plain- part towards the directed the defendant] [of tiff.” “impos- findings of recite it was fact
The court’s parties and contributions of the sible to trace the assets marriage” joint venture of the within the context of variety and reinvestments because investments per- earnings, by parties loans, from and a made by injury defendant. settlement received sonal by found, however, contributions were that “their repealed (1975), Chapter 247, recreated was Stats. February Act, 105, 1977, effective The Divorce Reform Laws of ch. subsequently (Chapter 247, (1977), renum was Stats. 1978. 1979.) act abol Laws sec. ch. to ch. 767 bered Be ground as a for divorce. inhuman treatment ished cruel and prior the effective date cause this action was commenced Act, provisions statutes Reform The Divorce controlling. 247.101, the common-law codified sec. Stats. 2Former part: provided pertinent comparative rectitude doctrine appears it the evi- any . . where from action for divorce . sufficiently guilty of misconduct have been dence that both grant grave . . the court divorce . cause to constitute equities party on the whole judgment ... whose of divorce superior. be are found to *5 equal,” no means and that the defendant contributed a $21,226 plaintiff total of than more the to the family during through of the 1975. trial Since the computations record, possible court’s it are not testimony for this court to which exhibits or determine arriving figure.3 trial court at this It is the relied on why compara- also unclear the trial court considered the only during years parties tive contributions of the the school, plaintiff and not their contributions the attended during following year when the defendant was high- substantially plaintiff’s income was school and the years.4 prior er than found that the owned assets
The trial court totaling $55,245, for net $80,0475 owed debts 3 According exhibits, which was based to one of the defendant’s $50,390, returns, parties’ joint tax the defendant earned plaintiff $24,- joint earnings, and the earned or of the total 67% $25,577. through 1975, These for a difference of 813 from 1968 figures plaintiff deflating disputed by his income and as were figures proceeds inflating do not include the defendant’s. plaintiff $5,000 by which the incurred school loan plaintiff arriving figure, at its trial court credited marriage, plaintiff prior $1,000 or to the stock which owned personal $4,650 proceeds injury received of a settlement of period. to determine We unable the defendant figure the stock or the settle the trial included whether court’s ment. exhibit, plaintiff According earned to the defendant’s Considering $1,768 $14,042 earned in 1976. and the defendant reported purposes during joint tax the entire income total marriage prior reduce commencement of the would to the action $13,552. income to excess contribution in earned the defendant’s parties’ figure financial contributions excludes the other This 3, supra. mentioned n. figures figure the trial total of the set forth is the This paragraphs its The total and 10 of conclusions law. para individually forth in valued set items $79,047 through findings graphs 22 of the fact either improvement $81,047, materials for depending on whether home $2,000, plaintiff, were valued at to the the house awarded *6 $25,802. plaintiff marital It found the had estate of earning capacity $20,000 per of the de year, earning year, capacity $9,000 per was and that fendant’s alimony.6 party entitled to neither was homestead sub- court awarded the defendant The mortgage together outstanding $18,021, ject of to an resulting gross to personal in a award effects and cash $37,151. plain- $45,172 of The and a net award her personal property other home tiff was awarded the totaling to the land $34,875.7 He was ordered assume remaining pay debts to all the on that home and contract $37,224. re- parties This in the total amount of the plaintiff $3,349. negative net award to the sulted in a tem- that the defendant court further found The trial gave in order to care porarily up own education her family support while her parties’ child degree. It found that while the law his husband obtained value,” intrinsic it had “the had no “market law deriving income so and substantial potential for future proper- distribution an asset in the be as to considered marital valuation of the from the total or excluded were included erroneously in- plaintiff these materials were claims estate. The by appraiser they in arriv- had been considered cluded because apparent ing the home. Because the total value of computations, unable we are the court’s error mathematical plaintiff’s correct. claim is whether to determine provided 247.26, that “no sec. Stats. Former adultery guilty granted party not condoned.” shall be had asked whether she amendment when took the fifth defendant prior man other than her husband with a sexual intercourse had find The trial court made no the divorce. the commencement of alleged adultery, concerning but found the defendant’s alimony, proper whether or for the award of case was “not a marriage, issue, given adultery time of the the short is at division to be ordered and the of the health the court.” assets, these found total of the value of The correct specified $35,875 court, $33,875 reasons trial either 5, supra. n. ty present following- in the case.” It made the conclu- law, present controversy sions of the core of the appeal:8 13. The that under Court concludes the terms of this property division, if the is to be divided plaintiff on a 50-50 basis defendant would owe $15,660. the sum of from this Court subtracts arrearages plaintiff sum the in the $1,344 giving $14,316. amount of a difference of considering valuing 14. In the worth of said law degree agreement parties, as an asset of the the Court is opinion Supreme with the Court Marriage entitled, of Iowa in the case “In re the Horstmann,” of . . (1978)]. . [263 *7 15. The Court further concludes that the value of the plaintiff’s therefore, degree and, $14,316 law is not less than requires no cash contribution from the plaintiff.
defendant to the
Grounds for Divorce
plaintiff
appeal
question
concedes on
that
the
party
against
“very
takes a divorce
the other is of
significance” except
little
to the extent that the
finding
party
division
favor one
on the basis of a
party
guilty
egregious
that
the other
was
of more
con-
marriage.
duct
the
Under former ch.
Stats.
action,
applicable
(1975), which is
to this
fault was a
dividing
estates,9
proper
marital
al-
consideration
though
punish
guilty spouse.10
it
could not be used to
appeal
The contention in defendant’s
on
that
the trial
brief
plaintiff’s
“merely
degree
noted” the
law
not value
did
subject
by
it as an asset
the conclusions of
division is belied
by
quoted
opinion,
the
law
in the text of
as well as
the fact
that
exceeded the net value of
if
the award to the defendant
the estate
found
the trial court
excluded
the value
as
from the marital assets.
Manske,
(1959).
Manske v.
1 0
Kronforst,
(1963);
against given appears him that it was divorce judgment to the defendant rationalize the which so much favored her.” find no
We reason to trial believe court’s percent award to the defendant of more than 100 estate, excluding assigned net marital the value to the degree, comparison law was based of the relative parties. Rather, apparent fault of it from law, quoted above, court’s it conclusions of intended equally, to divide the estate and then to award the de- recompense sum her for her fi- fendant additional family contribution to the nancial postponement plaintiff her education while for the degree. obtained his law unnecessary opinion find it to detail this
We specific of cruel and inhuman treatment instances record, party. each have examined the claimed We engaged both conduct v/hich and conclude that marriage. dissolution their contributed to the While issue, might result have reached a different we equities it balance trial court was entitled to they findings upheld them, unless saw and its must be against great weight preponderance clear *8 110, Heiting 218 Heiting, 117, 64 v. Wis.2d the evidence. (1974). supreme in 384, court said As the 338 N.W.2d that case: making as well determinations In as a or these rather delicate testimony proper demean- and the evaluation grounds parties as to the of and other witnesses divorce, judge, observa- trial his face-to-face findings
tions, superior position make the is in a much appellate of an court than the members conclusions and who solely upon impersonal depend record.
53 applicable Under the standard of review we conclude findings the trial court’s as to the relative fault of upset. cannot be Degree Valuation of Professional appeal whether The test on of a division is making the the trial court in abused its discretion 854, Dean 902 Dean, award. v. 275 87 N.W.2d Wis.2d Leighton (1979); Leighton, 620, 261 v. 81 N.W. Wis.2d (1978). when the trial 457 an abuse occurs 2d Such factors, er proper makes a mistake or fails to consider respect upon which the division ror with to the facts circumstances, made, or when the division under is, Perrenoud, inadequate. Perrenoud v. excessive or either 36, 46, (1978). conclude 260 658 We Wis.2d valuing the its trial court abused discretion estate an asset the marital plaintiff’s law exceeding awarding the defendant properly assets. included net value of jurisdictions have con few The courts those presented appeal have taken on this issue sidered majority dealing it. The variety approaches in professional de jurisdictions held that a have those the disso subject after “property” to division gree is not McManama, Marriage marriage. In re lution of Aufmuth, Marriage 1980) ; In re (Ind. 399 N.E.2d In re (1979); Rptr. 446, App.3d Cal. 89 Cal. ; (1978) 429, P.2d 75 Graham, Marriage 194 Colo. ; (1978) App. 264 N.W.2d Moss, 80 Mich. v.Moss (1975); Todd Stern, 331 A.2d N.J. v. Stern (1969). Rptr. 131 App.2d 78 Cal. Todd, 272 Cal. expressed perhaps best cases is these rationale Graham, su Marriage In re majority opinion pra: *9 degree encompassed simply ... An educational “property.” It by concept of of the even the broad views exchange any objective trans- an value or does not have personal open on an market. It is ferable value holder. and is not holder It terminates on death of the transferred, assigned, sold, con- cannot inheritable. It be
veyed,
product
degree
pledged.
a cumulative
An
advanced
many years
previous education,
of
combined
of
diligence
may
acquired
with
work. It
not be
and hard
money.
simply
expenditure
It is
an intellec-
the mere
tual
may potentially
future
assist
achievement that
acquisition
view,
property.
it has
of the
In our
none
that
term.
in the usual sense of
attributes
The trial Horstmann, upon court relied in which Supreme agreed in In majority the Iowa Court with the Marriage supra, re Graham, degree and that a law subject admission to the bar were not themselves assets Horstmann held, to division. however, is the that “it potential earning capacity for increase in future made possible by the law certificate of admission conferred with the of his wife’s husband aid by the efforts which for distribution constitutes asset [Emphasis supplied.] court.” 263 at 891. Not couple acquired had no assets marriage earning ca other than the husband’s increased pacity, approach” approving applied the court a in “cost represented the $18,000, an award to the wife of money spent amount of the wife contributed degree. obtaining 263 N.W.2d the husband in his law at 891. supra, Kentucky Inman, Appeals Court of em-
In
logic
another no-asset
ployed
case.
a similar
frequently a com-
of assets is
that a lack
court observed
follows soon
where divorce
mon denominator
cases
completes
professional
spouse
a
education
after one
21
a
Michigan,
have utilized
Colorado and Oklahoma
Courts
recompensing
to her hus
a wife’s contribution
method of
different
by approving
professional degree,
in the
awards
nature
band’s
alimony,” regardless
“gross
the wife’s technical disentitlement
Moss,
remarriage.
instance,
v.
alimony because,
Moss
Greer,
(1978);
App.
v.
32 Col.
Greer
the financial assistance of the other It also noted spouse normally that in such cases the would be en- titled to self-support- because he or she would be ing. expressed “strong The court reservations about placing professional category license in the of marital property,” but said: spite reservations, of these ... we feel that there treating professional are certain instances in which cense as marital li- only way is the in which a equitable court can achieve an result. 578 at 268. S.W.2d *11 supra,
Inman, that held the wife was to a entitled re- “monetary turn on her investment” in the husband’s den- degree, by tal spent measured “the amount for direct expenses during period and school of educa- tion, plus adjustments reasonable interest and for infla- cautioned, however, tion.” 578 at 269. It that S.W.2d approach appropriate such an in all would not be cases: guidelines determining Proper whether a marital proper particular classification in a is instance might property tangible include whether marital there is more equity, whose division would work ex reciprocal Spouse tent to which there was in aid. A’s spouse earning capacity might partially terest in B’s be totally extinguished spouse or if B had returned the fa having helped put spouse position vor and a saleable skill. Another A in the important factor to consider might be al the extent to which the nonlicenseholder has ready financially or from otherwise benefited his her spouse’s earning capacity, eligible or is maintenance. guidelines These illustrative, are meant not ex be haustive. 578 at 269. S.W.2d reasoning do Horstmann, supra, We not find the Inman, supra, persuasive. agree equity We com pels spouse some form of remuneration for a whose con marriage significantly tributions to the have exceeded however, equi- those of the mate. agree, We cannot ty by attempting place is served dollar value on intangible something professional education, so as a de- gree, or license. The at- difficulties inherent tempt by are illustrated this case. is no evidence There finding supports record which the trial court’s degree plaintiff’s “at that the value law is worth any $14,316 or least” other amount. by approach” employed supra, and Inman, “cost degree
Horstmann, supra, presumes that the value of a money spent obtaining is think the amount it. We presumption warranted. It to consider not fails holder, efforts and acumen of scholastic bearing income-yielding well have a on the though potential It treats the of the education. they strictly partners, whom has business one of were commodity in the calculated investment made a training, expecting professional for dol a dollar other’s planning lar do think that most marital return. We supreme coldly As the court said undertaken. so 142, 145 Lacey Lacey, 173 N.W.2d (1970) : determining proportion husband of contribution property, more than acquisition wife two do not deal economic factors are involved. We people business *12 strangers or than two with no more common de- The formula for division associates .... facts of individual case. rives from the degree valuing professional a approaches for
Other they attempted.14 suggested13 think We been and have 13 To Law So Husband Can Go Schafer, Works See T. Wife “Esq.” Is “Partner” Taken In As A When Be School: She Should Erickson, Prop. By 85; N. Divorce? 1975 Comm. J. Followed Spousal Support Educational Goals: The Realization Toward Of 947, Reciprocity, 1978 Ensure L. Rev. How The Law Can Wis. (1978); Note, 646 Tulsa L. Rev. Note, L. Rev. 13 11 62 Conn. (1978). 14 Rptr. Todd, App. 131 Todd v. Cal. 272 Cal. 78 In both Marriage Graham, P.2d In re (1969) Colo. disadvantage being
share wholly speculative. professional Whether a education is and will be of fu- recipient ture resting value to its is a matter on factors which are at anticipate best difficult or A measure. person qualified by given profession education a may for it, practice may it, choose not to may practice fail at or specialty, in a generates location or manner which less average enjoyed than profession- income fellow potential als.15 may The worth of the education never many be realized for or these other An reasons. award prediction degree based holder’s success may at the relationship chosen field bear no to the real- ity he she faces after the divorce. Unlike award of alimony, adjusted which can be after divorce to reflect changes unanticipated parties’ circumstances, in the a potential inequity division not.16 The professional changes to the failed or one who careers is apparent; spouse at once his or her will have been something any a awarded share of never existed real sense. attempting addition to the difficulties inherent place agree degree, a on an valuation educational we (1978), Note, discussed in 11 Conn. L. Rev. wife expert testimony concerning introduced the value of the husband’s projected earnings pro- education based on with and without degree acquired during marriage. appellate fessional rejected attempt valuation, courts in both cases at held that the was not a marital asset. supreme held, court has in the context of a claim for support, spouse that a divorced “should be allowed pursue
fair choice of a means of livelihood and to what he honest ly opportunities though might feels his best even he for the least, present, working be lesser financial return.” Bal Balaam, 20, 28, (1971). aam 187 N.W.2d 247.32, (1975) provided Former provi Stats. sec. that “the judgment respect of a sions to final division of subject be to revision or [shall not] modification.” Present sec. 767.32, Stats., provision. contains the identical
59 contention, plaintiff’s and the with the conclusion Indiana,17 of the courts California and that a division necessarily based such a valuation involves a “di statutory earnings. post-divorce vision” find of no We 247.26, authority or other for this result. Former sec. (1975),18 Stats. court to divide the exist authorized the alimony parties and estate of the to award under stated conditions. It did not authorize a court which has surcharge alimony not determined that warranted to by awarding party party property one other in excess the estate, creating thereby of marital of the net value earnings. In what a “lien” on future As the amounts to construing compar Supreme diana Court observed under similar circumstances: able statute ... future income not lend set out in the statute do factors [T]he interpretation themselves to the thirty-six property hundred and divisible. The therefore of above the total value dollar . . . award to the wife is trial. It the evidence at the marital assets as shown Marriage Aufmuth, App.3d 446, Cal. re 89 Cal. In of Marriage Fortier, App.3d Rptr. (1979) ; In re Cal. of Todd, App.2d Rptr. (1973); Todd v. 272 Cal. 109 Cal. Marriage McManama, Rptr. (1969); re 399 N.E.2d Cal. (Ind. 1980). 1 8 part: provided 247.26, in relevant Former sec. Stats. every judgment Alimony, property Upon or of divorce division. adjudge may legal separation, limited further for a the court . . . alimony party period out of the of time to either such except maintenance, support party of the other and income granted party guilty adultery to a shall be no finally distribute divide and .... The court also condoned party personal, estate, of either between both real and any accordingly, parties title thereof divest and transfer and rights regard legal equitable having given and due after age length marriage, party, health of the each party liability chil- parties, for debts or of either estates, respective whether dren, abilities their alimony, addition to character in lieu or in award is . . . the circumstances of the case . and all situation
60 apparent . paid is . . this amount would be as an way only award of the husband’s future income. The given any trial court the to the could additional have amounts way at that wife time wouid have been of an award of either or maintenance ... In re . Marriage 371, (Ind. McManama, 399 N.E.2d 373 1980). We concur with conclusion. valuing
While we hold that the trial court in erred plaintiff’s estate, an law asset of the marital it opinion is our that both the defendant’s financial con family tributions while he it and the obtained present disparity parties’ earning capaci in the income resulting postponement ties from the of the defendant’s appropriate own education are factors for consideration determining arriving division, property in at a alimony (now appropriate. “maintenance”) whether Supreme goal Wisconsin Court has said that the determining “fair, equitable division to reach 78, just” result, Bussewitz, v. Bussewitz 75 Wis.2d 417, (1977), 248 N.W.2d 420 and that “each case must be the material facts and factors decided present 422. therein.” at at 75 Wis.2d N.W.2d property factors relevant to a division are The same determining Van award. be considered Wyk 100, 108, Wyk, v. Van Wis.2d N.W.2d ; 26, 32, (1978) Shetney Shetney, N.W. Wis.2d (1970). 2d 516 supra, Lacey, supreme court set forth a wide
variety appropriate in mak for consideration factors noting ing division, encyclopedic property that “an list probably impossible, and ing possible was factors” of all in establish is material and relevant that “[w]hatever equitable for division of the basis a fair and at be considered.” Lacey were enunciated 145. The factors subsequently 247.26, in former codified sec. Stats. provided the circumstances of case” “all given regard.” should be “due present sec. and sec.
We note that under
767.25519
Stats.,20
spouse
767.26(1),
contributions
one
earning
spouse,
power of the other
education or increased
together
earning capacities and educational
with the
specifically
spouse,
as factors
needs
each
mentioned
main-
and awards of
to be
divisions
considered
*15
applicable
this
those
are
to
tenance. While
sections
provides
767.255, Stats.,
that:
Section
presume
is to be
the marital
. . .
estate]
court shall
[T]he
[that
may
equally
parties,
this
but
alter
distribution
divided
between
considering:
. .
.
after
education, training
(5)
by
party
one
to the
or
The contribution
earning power
increased
other.
including
capacity
party,
(6)
earning
of each
educational
length
background,
skills,
experience,
training, employment
work
market,
responsibilities
job
for chil-
absence from the
custodial
expense necessary
acquire
edu-
to
sufficient
dren and the time and
party
self-supporting
training
cation
to enable the
to become
or
comparable
enjoyed
reasonably
living
a
to that
standard of
during
marriage.
part
Stats., provides
767.26(1),
in relevant
Section
considering:
payments
may grant
after
maintenance
marriage
(d)
party at the time
level of each
The educational
time the action is commenced.
and at the
party
maintenance,
capacity
seeking
in-
(e)
earning
of the
employment skills,
background, training,
cluding
work
educational
job
length
market,
experience,
re-
from the
custodial
of absence
necessary
expense
and
to
sponsibilities
the time
for children and
party
training
acquire
to
or
enable
sufficient education
appropriate employment.
find
parties
agreement
(h) Any
before or dur-
made
mutual
party
marriage, according
has
ing
to the
which one
terms
the ex-
to the other with
service contributions
made financial or
future,
compensation
reciprocation
pectation
other
or
made,
agree-
any
repayment
been
or
mutual
has not
where such
marriage
concern-
before
made
ment
parties.
any arrangement
for the financial
case, we conclude that
the standards set forth in their
predecessors
Lacey, supra,
sufficiently
broad
considering
to warrant
those factors in
case.
this
See
Wyk,
also
100;
Van
Shetney,
26;
86 Wis.2d
Ausman,
Ausman v.
Wis.2d
Consideration of those factors well entitle the fifty percent defendant an award of more than the marital estate this case. We are unable to deter mine whether to what extent be so be cause, above, conflicting testimony as noted there was concerning the relative financial and nonfinancial con parties, tributions of the and the manner in which the trial court resolved those conflicts is not discernible from the record. For this reason alone case must findings be remanded for a new division consistent opinion. addition, the trial court’s deter mination that the defendant was not entitled part upon was based division which we supreme have vacated. The court has held the di of a respecting vision marital estate and decision ali *16 mony closely Wyk, supra, 110; related. Van Johnson, 137, 145, v. Johnson 254 (1977). may A of this be redetermination issue appropriate remand, depending parties’ on on the current circumstances, the trial the de unless court finds 247.26, fendant barred under former otherwise sec. (1975), claiming alimony.21 Stats. from making remand, In the either determination trial and court should consider the relative financial other parties during contributions of the the whole course of marriage, merely during period not the of the and schooling. plaintiff’s The in earn- defendant’s excess during early years ings marriage, as well as 2 1 supra. 6,n. See earning capacity resulting post-
the inferior from the education, ponement partially com- of her were at least year pensated and of the last one-half marriage and ac- when she attended school earned an degree. counting appears to ac- This fact have been weight no the trial court’s determina- corded initial tion, and is entitled to consideration.
By portion judgment per- the Court. —That of the taining division is reversed and proceedings and the case is remanded for vacated respects opinion. In with this all consistent other judgment are not to either affirmed. Costs allowed party. (Concurring.) agree
DYKMAN, ma- I with the J. jority opinion not award more that a trial court defendant, percent but than 100 plain- majority’s disagree conclusion that the I degree may marital asset not considered a be tiff’s law present 767.- predecessor secs. 767.255 under 26, Stats. comport majority opinion with decisions does valuation Supreme which allow Court the Wisconsin prop- purposes of a property for interests
of future
unnecessarily
trial
limits the
erty
it
settlement
equitable
providing
settlement
options
an
court’s
a divorce action.
620, 261 N.W.2d
Leighton
Leighton, Wis.2d
concluded under
the Wisconsin
case,
applies to this
which
law
same divorce
pension
included
interest
in a
fund could be
unvested
lists
majority in this case
property division.
might
actual
contingencies
reduce
numerous
con
existence
plaintiff. The
earning power of the
*17
excluding
prop-
in a
asset
tingencies
is not a basis
erty
Leighton,
division.
theAs
court
in
at
Wis.2d
634-35,
464,
261 N.W.2d at
stated:
dealing-
contingent
interests,
cases
with other
[I]n
such
as a
an
testamentary trust,
remainder of interest
in a
profit-sharing trust,
in
interest
a
we have
held
contingent
the fact that
the interest
is
does not mean
ignored
it
tions.
be
in
in
divisions
divorce ac-
(Footnotes omitted.)
Likewise,
valuing
professional
the method of
a
valuing
can be no more obscure than that of
unvested
pension plans.1
interests in
question
considering
to be
when
asked
to
whether
person
value
probability
a future
is
interest
that the
enjoy
enjoys.
will continue to
what he or
now
she
Leighton,
probable
when distributed undoubtedly discounting right then the trial would be $8,047.61 twenty-three years percent. in this at 5 error $8,04.7.61 method will continue to accrue interest over is that twenty-three [Emphasis Assuming years. supplied.] the next a percent growth, approximate- rate will value fund triple period. ly approximately If over we were to take the tripled years figure, twenty-three future, in the dis- and then [emphasis figure original] percent, count that at 5 we would up started, present approximately end where we with a value $8,047.61. Bloomer, Wis.2d at 240. Valuing professional degree speculative no more than assum- person that a remain will alive continue with or her his employment present employer until retirement. *18 importantly, by precluding a trial court from More degree degree considering any a or as an law asset settlement, purposes of a some circumstances persons support spouse’s who educational efforts their compensated. options under could not be available (1) majority’s the decision are either: to consider the adjusting support as a factor in the educational 50/50 sup- (2) property; or, educational division of use the payments. port as a basis for maintenance option. In order are difficulties with either There prop- adjustments in the for a trial court to make such erty division, to ade- be sufficient assets there must spouse. supporting quately compensate For court the support for maintenance as basis to use the educational party some need payments must have established for the maintenance.2 neither which to find a situation
It is not difficult - to find It is common prerequisites is met. of these spouse children, where one couples with no or an edu- obtains gainfully employed the other while receipt obtained If divorce is cation. significant which the assets degree, are no there compensation. The spouse as supporting award the can time establish- a difficult spouse have supporting would is em- payments if he she maintenance need Thus, court’s children. are no there ployed and would asset a marital inability consider necessary to establish implies majority it is not payments. How maintenance award a court before “need” exist. a need must strongly that such indicates ever, case law Anderson, 72 Wis.2d Anderson court stated As and “Both 642-43, 242 N.W.2d the wife the needs of payments the basis on are fixed or pay. needs are These ability husband of the children and wife’s assets dinarily a consideration established wife age of both needs, and health special income, her customary life.” station in their and children spouse
result in a one situation income no spouse is used for the other the benefit of allowing compensation. method Such a trial court’s limitation discretion providing equitable is unwarranted. solution more
I cannot award would a court reverse because *19 percent couple’s property and because than 100 aof valuing was plaintiff’s law court’s method of entirely speculative. Plaintiff, R.
Charles Patrick, Cooperative Association, Head of the Lakes Electric Cross-Respondent, Defendant-Appellant and Company, Electric Insurance Federated Rural Cross-Appellant. Defendant-Respondent and Appeals Court of April Submitted No. 79-1452. briefs 8, 1980. June 24, 1980. Decided 205.) (Also reported