Aman v. Aman
| Decision Date | 06 May 1992 |
| Docket Number | No. 91-1652,91-1652 |
| Citation | 487 N.W.2d 660,169 Wis.2d 467 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In re the Marriage of Shirley AMAN, Petitioner-Respondent, v. Reinhold AMAN, Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Waukesha county; Marianne E. Becker, Judge. Affirmed in part; reversed in part and cause remanded with directions.
Circuit Court, Waukesha County
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Before NETTESHEIM, P.J., ANDERSON and SNYDER, JJ.
Reinhold Aman (Reinhold) appeals from a judgment of divorce entered in an action commenced by his former wife, Shirley Aman (Shirley). Reinhold challenges: (1) the trial court's rejection of his testimony as not credible; (2) the property division award; (3) the maintenance award; and (4) an attorney's fees award based on "overtrial." We uphold all of the trial court's rulings with the exception of the attorney's fees award.
Reinhold and Shirley were married on April 9, 1960. At the time of the divorce, Reinhold and Shirley were fifty-four and fifty-five years old respectively. They have one daughter, who is an adult living in the state of California.
At the time of their marriage, Shirley had a B.A. degree in education and was employed as a second-grade teacher in Milwaukee; Reinhold was employed as a chemist for A.O. Smith Corporation. Reinhold quit his job at A.O. Smith shortly after the marriage and enrolled at the University of Wisconsin--Milwaukee (UWM) to effectuate a career change. He received a B.A. degree from UWM in 1965 and a Ph.D. degree from the University of Texas in 1968. Thereafter, Reinhold returned to UWM where he was employed as a professor of German from 1968 until 1974, when he was denied tenure.
Reinhold then left UWM and started his own business, a unique enterprise known as "Maledicta Press" whose sole purpose is to publish the journal Maledicta. Reinhold was, and remains, the chief contributor to Maledicta, a publication variously described in this case as a "scholarly journal of verbal aggression." 1 Reinhold additionally typesets, edits and ships Maledicta to its subscribers. The evidentiary record includes a typical publication of Maledicta. This edition describes the publication, in part, as follows:
Maledicta specializes in uncensored studies and glossaries of offensive and negatively-valued words and expressions, from all languages and cultures, past and present. Our main areas of interest are the origin, etymology, meaning, use, and influence of verbal aggression and verbal abuse of any kind, as well as language usually considered vulgar, obscene, or blasphemous.
While Reinhold studied at UWM, Shirley worked full time as a teacher until the end of the 1963 school year. The couple's daughter was born in the spring of 1964, and, for a number of years thereafter, Shirley occasionally worked as a substitute teacher. Later, after the parties had returned from Texas to Milwaukee and their daughter was enrolled in elementary school, Shirley again worked as a substitute teacher. Shirley was subseuquently hired as a full-time teacher in the Milwaukee Public Schools for the 1972-73 school year. After three months, Shirley determined that she "could not handle the discipline in the class" and withdrew from full-time teaching. Sometime in 1977, at Reinhold's suggestion, Shirley took her name off of the substitute teaching list and began working for Maledicta Press, which was located in the Amans' home.
In 1983, Reinhold and Shirley purchased a computer to assist with the production of Maledicta. The introduction of the computer made production more efficient and effectively eliminated much of Shirley's job, which was typing and proofreading. Shirley again substitute taught until 1989, when she signed on as a clerical and intake worker with Kaiser Employment Center. When Kaiser lost its funding for Shirley's position, Shirley sought other employment and, in February of 1989, began working for Metropolitan Life Insurance Company at a salary of $14,000 a year. Shirley continued this employment until June of 1990, at which time she became employed as a case manager for Goodwill Industries. Shirley continues to work for Goodwill; she testified at trial that her bi-weekly gross pay was $655.20.
Because the trial court's determination that Reinhold's testimony was not credible controls or influences many of the appellate issues, we address this question first. Reinhold complains that the court's rejection of his testimony was based on other evidence which Reinhold contends was inadmissible or otherwise not worthy of belief.
Reinhold's argument misconstrues the basis for the trial court's credibility ruling. The court did not look to any other evidence in making its credibility assessment of Reinhold's testimony. Rather, the court made a threshold determination that Reinhold was not a credible or reliable witness: (Emphasis added.) Thus, the court's credibility determination did not rest upon any other evidence in the case.
An assessment of a witness's credibility is an integral part of fact finding. For this reason, we give substantial deference to a trial court's credibility assessment. As one commentator has recently observed, "an appellate court defers to a determination made below when it has reason to believe that the lower tribunal was, for whatever reason, in a better position to make that particular determination." Hofer, Standards of Review--Looking Beyond The Labels, 74 Marq.L.Rev. 231, 250 (1991). In re L.A.T., No. 90-2670, slip op. at 7 (Wis.Ct.App. ordered published April 28, 1992). Here, the trial court was in a far better position to assess Reinhold's credibility than we as a reviewing court operating from a paper record. The court's ruling was not clearly erroneous. Section 805.17(2), Stats.
The trial court's credibility ruling, however, did not completely preclude the court from adopting Reinhold's testimony in certain instances. Despite the court's credibility ruling, the court stated that it would accept Reinhold's testimony on a given point if it was supported by other credible evidence. Thus, only after making the threshold credibility determination did the court turn to the other evidence about which Reinhold complains. While we will address certain of this evidence and its use by the court as we discuss the various issues, we conclude that this evidence had no bearing on the court's threshold credibility determination. We uphold the court's finding.
Reinhold argues that the trial court erroneously concluded that a certificate of deposit with the First Financial Bank, Waukesha was property subject to division. Reinhold maintains that this account is his separate nondivisible property because it was a gift from his mother.
Ultimately, a property division in divorce is committed to the sound discretion of the trial court and will not be upset absent an abuse of that discretion. Ashraf v. Ashraf, 134 Wis.2d 336, 340, 397 N.W.2d 128, 130 (Ct.App.1986). Discretionary rulings are usually underpinned by both factual findings and legal conclusions drawn therefrom. Reinhold's quarrel is with the trial court's determination that he had failed to prove that the source of the funds represented by the certificate was a gift from his mother.
The historical facts pertaining to the property at issue in a divorce action obviously involve fact finding. See, e.g., Brandt v. Brandt, 145 Wis.2d 394, 407, 427 N.W.2d 126, 130 (Ct.App.1988). We do not interfere with such findings unless they are clearly erroneous. Id.; sec. 805.17(2), Stats. However, the construction and application of the property division statute to the historical facts present a conclusion of law. See Hubert v. Hubert, 159 Wis.2d 803, 811-12, 465 N.W.2d 252, 255 (Ct.App.1990). As to such questions, we do not defer to the trial court's conclusions. Id.
Section 767.255, Stats., which governs property division in divorce, states in relevant part that "[a]ny property shown to have been acquired by either party prior to or during the course of the marriage as a gift, bequest, devise or inheritance ... shall remain the property of such party and may not be subjected to a property division under this section." All property held by the parties at the termination of their marriage is presumed marital, see, e.g., Bahr v. Bahr, 107 Wis.2d 72, 81-82, 318 N.W.2d 391, 396-97 (1982), and the burden to show that an asset is gifted or inherited, and therefore exempt from division, rests upon the party asserting such a claim. Brandt, 145 Wis.2d at 408, 427 N.W.2d at 131. Whether a party has met his or her burden of proof is a question of law which this court reviews de novo. Id. at 409, 427 N.W.2d at 131.
Such a claimant must prove that the asset is gifted or inherited "to a reasonable certainty by the greater weight of the credible evidence." Id. at 407, 427 N.W.2d at 131 (emphasis added). The claimant must not only show that the asset in question was either gifted or inherited, but that the character and identity of such property was preserved. Id. at 408, 427 N.W.2d at 131. If each of these requirements is met to the requisite burden of proof, then, and only then, does the burden shift to the opposing party to show by sufficient countervailing evidence that the asset is not gifted or inherited, or has otherwise lost its exempt status because its character or identity has not been preserved. See id. at 408-09, 427 N.W.2d at 131.
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