Button v. Button, 84-2337
| Decision Date | 20 June 1986 |
| Docket Number | No. 84-2337,84-2337 |
| Citation | 388 N.W.2d 546,131 Wis.2d 84 |
| Parties | In re the marriage of Florence S. BUTTON, Petitioner-Appellant, v. Charles H. BUTTON, Respondent. |
| Court | Wisconsin Supreme Court |
Randall R. Garczynski, Delavan (argued), for petitioner-appellant; Clair Law Offices, S.C., Delavan, on briefs.
Clark Dempsey, Whitewater (argued), for respondent; Dempsey Law Offices, Whitewater, on brief.
This is an appeal from a judgment of the circuit court for Walworth county, Circuit Judge Robert D. Read, dividing property upon divorce in accordance with the terms of a written property agreement which the circuit court found binding under sec. 767.255(11), Stats. 1983-84. 1 This court took jurisdiction of the appeal upon certification by the court of appeals. Secs. 808.05 (2), 809.61, Stats. 1983-84.
Sec. 767.255 provides for division of property upon divorce. The statute requires the court to presume that certain property shall be divided equally between the parties but authorizes the court to alter this distribution after considering certain factors, including any written agreement between the parties. The statute provides that a written agreement for property distribution shall be binding upon the court and the court shall presume any agreement to be equitable as to both parties. No written agreement shall be binding, however, where the terms of the agreement are inequitable as to either party. Sec. 767.255 provides, inter alia, as follows:
The circuit court concluded that the provisions in the parties' 1974 postnuptial written agreement dividing the property in the event of a divorce were binding under sec. 767.255 (11), Stats. 1983-84, but that the provisions waiving support and alimony were "not enforceable as being against public policy and contrary to the laws of the State of Wisconsin." Florence S. Button appeals only from that part of the judgment directing a division of property pursuant to the 1974 written agreement; neither party appeals from that part of the judgment awarding limited maintenance.
As a result of dividing the property at the dissolution of this 14-year marriage according to the 1974 agreement, the circuit court awarded Mrs. Button assets valued at $7,882.10 and awarded Mr. Button assets valued at $255,103.99. The circuit court's entire finding relating to the division of property in the event of divorce is as follows:
The court of appeals certified the following issue: "When is equitableness of an antenuptial or postnuptial agreement [under sec. 767.255 (11) ] to be determined--as of the time of execution of the agreement or as of the time of divorce?" Although the circuit court found the agreement equitable, it did not state whether it examined the agreement as of the date of execution or as of the divorce.
The parties present a second issue, namely, what constitutes an equitable agreement? The circuit court apparently considered four factors: Mrs. Button's age, Mrs. Button's transfer to her child of property which she brought into the marriage, Mrs. Button's desire to retain the power to dispose of her separate property, and Mrs. Button's awareness of the consequences of the postnuptial agreement.
This court is addressing both of these issues for the first time. We conclude that an agreement is inequitable under sec. 767.255 (11) if it fails to satisfy any one of the following requirements: each spouse has made fair and reasonable disclosure to the other of his or her financial status; each spouse has entered into the agreement voluntarily and freely; and the substantive provisions of the agreement dividing the property upon divorce are fair to each spouse. The first two requirements must be assessed as of the time of the execution of the agreement. As we shall explain, the third requirement is also assessed as of the time of the execution of the agreement and, if circumstances significantly changed since the agreement, then also at the divorce.
Because the circuit court did not consider and apply the three requirements discussed herein, we reverse that part of the judgment ordering property division on the basis of the written agreement and remand the cause to the circuit court to consider whether the terms of the written agreement are inequitable and not binding under sec. 767.255 (11) under the test set forth herein.
The relevant facts are as follows. The parties married on September 12, 1969, having known each other for approximately five years prior to their marriage. Both parties had been married previously; Mrs. Button had one adult child from her prior marriage and Mr. Button had three adult children. When they were married, Mrs. Button was 50 years old, and Mr. Button 61 years old. Mrs. Button began the divorce action in 1983.
Prior to the marriage, Mrs. Button had acquired some personal property and other assets with a total worth of no more than $3,000 and a life insurance policy on the life of her former husband in the amount of $12,000. Mr. Button had an upholstery business, a stock portfolio, personal property and real estate upon which a duplex residence and the business were located. He had inherited a substantial part of this property and, under sec. 767.255, inherited property is considered separate property not generally subject to division upon divorce.
The parties entered into a written prenuptial agreement on August 15, 1969. While this prenuptial agreement is not the agreement in issue here, the facts relating to the execution of the 1969 agreement are stated because they may bear on the determination of whether the 1974 agreement is inequitable.
Mrs. Button testified that there was no discussion of Mr. Button's finances prior to their marriage, although she was aware that he owned a duplex house, an upholstery business, a car, and a snowmobile. Mrs. Button also testified that Mr. Button's attorney told her that "if [you] wanted to take it to another attorney [you] could, but if [you] did that then you would say that you didn't trust Charles and Charlie said that's right and [the attorney] said the same thing." Mrs. Button also stated that she did not read the agreement before signing it. Mr. Button's attorney testified that he believed that both parties understood the agreement, although he has no record of any financial disclosures being made between the parties. Mr. Button testified that he did not make any financial disclosures to Mrs. Button. Neither Mrs. Button nor Mr. Button's attorney had any recollection of Mrs. Button's being advised of the rights she was surrendering by signing the agreement.
Mrs. Button testified that soon after their marriage, Mr. Button instructed her to stop working outside the home because her contribution to the marriage would be greater if she devoted all her time to being a homemaker. Mrs. Button had been employed as a produce worker at a supermarket. Mr. Button denied that he made this demand. Mrs. Button did cease to work outside the home within 6 months after the marriage. She testified that she worked hard in the house. After the marriage, Mr. Button continued working outside the home as an upholsterer.
In 1970 Mrs. Button received $12,000 from the life insurance policy on the death of her first husband. These funds were held in her own name until 1974, when she placed the funds in a joint account with her daughter. In 1982, apparently after the parties separated, Mrs. Button transferred $12,000 to her daughter. Mrs. Button's daughter testified that she used these funds for Mrs. Button.
In June 1974, after Mr. Button sold his upholstery business to his son for $85,000, the parties signed a postnuptial agreement which expressly rescinded and terminated the 1969 prenuptial agreement. Mr. Button's assets had appreciated in value during the marriage to approximately $110,000. Mrs. Button's assets were essentially the same as before marriage, except that sometime during the marriage Mr. Button gave her a joint interest in shares of stock having a value of $3,000. During the marriage Mr. Button paid for the household expenses and vacation trips from his income and property.
The 1974 agreement--which is the agreement to be tested under ...
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