Anstutz v. Anstutz
| Citation | 112 Wis.2d 10,331 N.W.2d 844 |
| Decision Date | 15 February 1983 |
| Docket Number | No. 82-243,82-243 |
| Parties | In re the Marriage of Josephine E. ANSTUTZ, Petitioner-Respondent, v. Raymond W. ANSTUTZ, Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
James H. Whiting, Antigo, for respondent-appellant.
Richard T. Winter, Antigo, for petitioner-respondent.
Before FOLEY, P.J., and DEAN and CANE, JJ.
Raymond Anstutz appeals from that portion of a divorce judgment dividing the marital estate. He argues that the court abused its discretion in awarding him virtually none of the marital estate after the debts are paid and awarding Josephine Anstutz approximately $26,000. Because we conclude that the trial court's findings do not support such a drastic departure from the equal division envisioned by the statutes, we reverse the judgment and remand the cause for further proceedings.
The trial court failed to make adequate findings concerning the value of the property awarded to each of the parties to indicate that it had exercised its discretion. The parties do not agree on the value of the property awarded to each of them, and the trial court refused to make specific findings on the value of the marital estate. The parties agree that Josephine was awarded between $24,000 and $26,450. Raymond was awarded property valued at approximately $12,450, but was required to pay all of the parties' outstanding debts. Because of the inadequacy of the trial court's findings, it is not clear whether the debts Raymond is required to pay exceed the assets he was awarded. It is clear, however, that Josephine received virtually all of the unencumbered marital property.
It is also unclear what portion of Josephine's award represents the return of her inheritance. The parties' home and land was purchased in 1965 for $8,500, $5,000 of which Josephine had just received as an inheritance. Substantial repairs were done to the house and, at the time of the divorce, the house was appraised at $31,200. The trial court did not indicate whether it returned Josephine's $5,000 inheritance or any part of it, or whether it considered the inflated value of that money, or whether it awarded her a percentage of the house and property. Since inherited property is generally exempt from division under sec. 767.255, Stats., the total value of the marital property subject to division is unclear.
The trial court, considering the length of the marriage, determined that it should disregard or minimize the inheritance. The court did not find that the inherited money was so commingled with other property that it could not ascertain its present value. The court appears to have considered the fact that the $5,000 inheritance was applied toward the $8,500 purchase price of the home as a factor in departing from equal division of the marital assets. Under sec. 767.255, unless the inheritance funds were so commingled with the parties' other assets that the court is not able to determine its present value or whether the inheritance has been preserved, the court should return the present value of the inheritance to the heir. The fact that property was inherited is not a factor to be considered in departing from equal division of the marital property. Rather, the statutes envision return of the inheritance or property paid for with inherited funds to the heir prior to division of the marital property.
Section 767.255 creates a rebuttable presumption that the marital property is to be divided equally, although the court may alter the distribution based upon the factors enumerated in the statute. The trial court apparently placed substantial weight on the fact that Josephine was awarded custody of the parties' minor child and that it was desirable to award the family home to the custodial parent, as authorized by sec. 767.255(7). The child,...
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