Bosman v. Bosman

Decision Date05 April 1990
Docket NumberNo. 89-0915,89-0915
Citation156 Wis.2d 465,458 N.W.2d 388
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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 Susan T. BOSMAN, Petitioner-Respondent-Cross-Appellant, v. Donald BOSMAN, Appellant-Cross-Respondent.
CourtWisconsin Court of Appeals

Appeal from a judgment of the circuit court for Dane county: MORIA KRUEGER, Judge.

Circuit Court, Dane County.

AFFIRMED IN PART, REVERSED IN PART AND CAUSE REMANDED.

Before EICH, C.J., and GARTZKE, P.J., and DYKMAN, J.

PER CURIAM.

Donald Bosman appeals and Susan Bosman cross-appeals from their judgment of divorce. The parties raise numerous issues regarding their property division. Susan also contends that the trial court erred by failing to consider her request for attorney fees. On most issues, we affirm. We reverse and remand, however, for reconsideration of three relatively minor matters.

Donald and Susan divorced after seven years of marriage. At the time of trial, their two major assets not disposed of by stipulation were the homestead, which Donald brought to the marriage, and a small farm. Because Donald brought substantial assets to the marriage, including the homestead, and because of their relatively short marriage, the trial court excluded from division and awarded the value of the homestead, at the time of the marriage, to Donald. He also received the downpayment on the farm, which came from money he saved prior to the marriage. The court then equally divided the remaining property, including the amount of appreciation on the homestead during the marriage and the remainder of the farm equity. The court awarded Donald title to both the homestead and the farm and ordered him to pay Susan a cash settlement of $27,497, to equalize the awards. As part of the settlement Donald also received his individual retirement account, valued at $4,544, and Susan received hers valued at $4,912.

Donald contends that it was an abuse of discretion to award him title to the farm, with cash payment to Susan of her share of its appraised value, rather than ordering it sold and letting the sale price establish its value. He further contends that the trial court abused its discretion by ordering him to pay Susan her cash settlement within sixty days, by not reducing Susan's share of her real estate values, by not adjusting the settlement for money Susan owed him, and by overvaluing his motorcycles.

On cross-appeal, Susan contends that the trial court abused its discretion by using different methods to value each party's retirement account, by excluding Donald's downpayment on the farm from the equal division of property, by finding that Donald did not waste marital assets and by failing to decide her claim for attorney's fees.

Property division is left to the trial court's discretion, and we will reverse only for an abuse of that discretion. In re Marriage of Duffy v. Duffy, 132 Wis.2d 340, 343, 392 N.W.2d 115, 116 (Ct.App.1986). The trial court abuses its discretion by failing to consider proper factors, basing its decision on mistaken facts, making an inadequate or excessive division, or relying on an error of law. Id. Awarding attorney fees for a divorce is also a matter for the trial court's discretion. In re Marriage of Ondrasek v. Ondrasek, 126 Wis.2d 469, 483, 377 N.W.2d 190, 196 (Ct.App.1985).

APPEAL

The trial court properly awarded Donald the farm rather than ordering it sold. Section 767.255 does not mandate liquidation of marital assets. Marriage of Arneson v. Arneson, 120 Wis.2d 236, 246-47, 355 N.W.2d 16, 21 (Ct.App.1984). At various times during the proceeding Donald asked the court to award him the farm and at other times asked that it be sold. Susan asked that it be sold only if the court rejected the appraisals offered in evidence. Having accepted Susan's appraisal of the farm, and given Donald's ambivalency on the issue, the decision to award the property to Donald and to award Susan part of its appraised value in cash was a reasonable exercise of discretion.

The trial court did not prejudice Donald by ordering him to pay Susan within sixty days. Donald contends that before the trial court could make that order, it was required to find that Donald could, in fact, raise the money within sixty days. Otherwise, Donald argues that the order has the effect of subjecting him to punishment for contempt through no fault of his own. We disagree. Contempt of court is reserved for intentional disobedience of a court order. Sec. 785.01(1)(b), Stats. Contempt will not lie for failing to do the impossible.

The trial court did not award Susan an excessive share of the marital property. Although Donald received 94% of the value of the homestead and 78% of the value of the farm, he contends that the trial court should have reduced Susan's share of those assets even further because of her failure to contribute to purchasing and maintaining them. According to Donald, the parties maintained separate finances, and while he spent his income on the couple's necessary expenses, she spent hers mostly on herself. The...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT