Boss v. Boss

• Decision Date: 29 April 1999
• Docket Number: 97-2269
• Citation: Boss v. Boss (Wis. App. 1999)
• Parties: This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats. In re the Marriage of: Connie L. Boss n/k/a Connie L. Wiesenberg, Joint-Petitioner-Appellant, v. Jerry E. Boss, Joint-Petitioner-Respondent
• Court: Wisconsin Court of Appeals

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats.

In re the Marriage of

Connie L. Boss n/k/a Connie L. Wiesenberg, Joint-Petitioner-Appellant v Jerry E. Boss, Joint-Petitioner-Respondent

No. 97-2269

April 29, 1999

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

APPEAL from a judgment and an order of the circuit court for Green County: JAMES R. BEER, Judge. Affirmed in part; reversed in part and cause remanded with directions.

Before Dykman, P.J., Roggensack and Higginbotham,¹ JJ.

DYKMAN, P.J.

Connie L. Wiesenberg appeals from a divorce judgment and from an order denying her motion for reconsideration. She contends that the trial court erred by not deducting various promissory notes from the gross marital estate when the six-year statute of limitations for suing on those notes had passed. She also argues that the trial court erred in failing to consider all the relevant factors enumerated in §767.255, Stats., when it divided the marital estate. We disagree. Finally, she contends that the trial court erroneously exercised its discretion in determining the amount and duration of her maintenance award. We agree. Accordingly, we affirm in part and reverse in part, and remand for further proceedings regarding maintenance.

Background

Jerry Boss and Connie Wiesenberg were married on October 8, 1982, and divorced on April 15, 1997. Jerry is a farmer, who began farming as a percentage renter with his father, Eugene Boss. Connie was primarily a homemaker, but periodically held low-paying part-time jobs. During the marriage, the parties purchased cattle, machinery, feed and farm land from Jerry's parents. The parties purchased the farm through a land contract with Jerry's parents, and they signed three promissory notes on June 5, 1986, as consideration for the purchase of the feed and livestock. These three notes were for $37,742.25, $8,400.00 and $14,125.00, and were all due on June 1, 1991. Each of the notes stated that if the parties failed to make any payments, Eugene had the option of accelerating the date that the amounts owing on those notes would be due. And while the parties made their last payment on these notes on December 31, 1990, Eugene never accelerated payment.

Eugene also loaned Jerry $10,000 on February 1, 1989, in exchange for another promissory note. This note was to be repaid by August 1, 1989. The interest on this note was eight-percent per year, which was approximately sixty-seven dollars a month. The parties made monthly payments on this note from February 1989 to August 1989, and then again from January 1991 to December 1991.

In 1989, Eugene recognized that his son and daughter-in-law were having financial difficulty, so he allowed them to stop making payments on these notes until they regained their financially stability. Eugene, however, testified at trial that he never forgave any of the amounts owing on the notes, and that he fully expected to be repaid the principal and any interest that accrued on them.

In dividing the marital property, the trial court determined that the parties had assets totaling $415,257.25 and debts totaling $394,681.06, including $82,872.31 owed on the four promissory notes. The court awarded Connie the 1990 Plymouth Voyager van ($6,300.00) and the 1996 state and federal tax refunds ($1,928.50). The court awarded Jerry the remaining marital assets ($407,028.75) and all of the marital debt ($394,681.06), and it required him to pay Connie $250 for a stove and safe and $2,094.69 to equalize the property division.

The court awarded physical placement of two of the parties' children to Connie and one to Jerry, and ordered Jerry to pay $417 a month in child support. The court determined Jerry's gross income for the purposes of child support to be $30,561, which was computed by adding the following amounts from the parties' 1996 income tax return: interest income of $122; capital gain of $749; 4797 gain of $4,061; farm income of $5,850; add back depreciation of $18,779; and an add back of $1,000 for farm expenses that were improperly deducted twice. The court then applied the criteria set out in Wis. Adm. Code §HSS 80 to set support at $5,005 per year, or $417 per month. Connie's share of the children's medical insurance premiums in the amount of $70 was then deducted from this amount for a total of $347 per month.

For the purpose of awarding maintenance, however, the court did not include the $18,779 depreciation, which lowered Jerry's income to $11,782. It then added in Connie's income, which was $6,527 in 1996, and divided that amount by two. Connie's income was then subtracted from one-half of the total income of the parties, resulting in a maintenance award of $220 a month. The court also limited maintenance to one year.

Discussion

1. Property Division

Connie first contends that the trial court erred when it included the four promissory notes as debt in the property division. Property division in a divorce judgment is within the trial court's sound discretion. See Bahr v. Bahr, 107 Wis.2d 72, 77, 318 N.W.2d 391, 395 (1982). A trial court's property division will be sustained if the court examines the relevant facts, applies a proper standard of law and, using a demonstrable rational process, reaches a conclusion that a reasonable judge could reach. See Liddle v. Liddle, 140 Wis.2d 132, 136, 410 N.W.2d 196, 198 (Ct. App. 1987).

Connie also contends that according to the terms of the February 1, 1989 note, the parties were to repay the full $10,000 amount by August 1, 1989, which they failed to do.² Connie argues that six-year statute of limitations for filing a breach of contract action began to accrue on August 1, 1989, see §893.43, Stats.; CLL Assocs. Ltd. Partnership v. Arrowhead Pacific Corp., 174 Wis.2d 604, 607, 497 N.W.2d 115, 116 (1993) ("contract cause of action accrues at the moment the contract is breached, regardless of whether the injured party knew or should have known that the breach occurred."), and expired on August 1, 1995. She points out that because Eugene did not sue before August 1, 1995, he was barred from collecting on the 1989 note at the time of the divorce. She therefore argues that the trial court erred in including the balance and interest still owing on the note as a marital debt. We disagree.

As to most of the indebtedness on the notes, Connie is incorrect that the applicable statute of limitations, §893.43, Stats., barred collection on the debt. At trial, Eugene Boss testified that he recognized that Jerry and Connie were having some financial difficulty in late 1989 and 1990, so he allowed them to miss a few payments. However, Jerry and Connie again began making (interest) payments on the 1989 note, in the amount of sixty-seven dollars a month, from January to December 1991. Eugene's acceptance of these interest payments tolled the statute of limitations. See Davison v. Hocking, 3 Wis.2d 79, 86, 87 N.W.2d 811, 815 (1958). In Davison, the supreme court held that:

A partial payment, to operate as a new promise and avoid the bar of the statute of limitations, must be made under such circumstances as to warrant a clear inference that the debtor recognized the debt as an existing liability, and indicated his willingness, or at least an obligation, to pay the balance.

Id.; See also Cornell Univ. v. Roth, 149 Wis.2d 745, 748-49, 439 N.W.2d 154, 156 (Ct. App. 1989); St. Mary's Hosp. Med. Ctr. v. Tarkenton, 103 Wis.2d 422, 424, 309 N.W.2d 14, 16 (Ct. App. 1991).

Eugene testified that he was aware that the monthly payments of sixty-seven dollars were Jerry and Connie's attempt to make partial payment on the 1989 note. The result is that these partial payments tolled the statute of limitations until the payments stopped on December 31, 1991. The statute of limitations began to run anew as of that date and did not expire until December 30, 1997. Eugene's ability to sue on the note was therefore not barred until well after the judgment for divorce was rendered.

Connie makes the same argument regarding the three June 5, 1986 promissory notes. She points out that the parties stopped making payments on these three notes in 1990, and the note explicitly stated that "[f]ailure to pay any principal installment or interest when due shall, at the option of the holder, cause all sums then remaining unpaid to become due and payable." But Eugene never exercised this option. Therefore, a breach occurred on the date that the 1986 notes were due, June 1, 1991. The six-year statute of limitations began running on June 2, 1991, and did not expire until June1, 1997, which is after the judgment of divorce in this case was rendered. Therefore, because the trial court is to determine the value of the marital property as of the date of the divorce, it did not err in including the amount owed on the 1986 notes, plus interest, when it determined the property division.

Connie, however, points out that even though Eugene did not choose to accelerate the date that the notes were due, the parties were still required to make their monthly payments on those notes from January 1991 to April 1991, which they failed to do. She argues that these missed monthly payments constitute partial breaches, and that the statute of limitations on those partial breaches began running as early as the first missed payment, which was January 1991. We agree that if a contract provides for the payment of money in installments, an action will lie for each installment as it falls due. 4 Arthur Linton Corbin, Corbin on Contracts §948, at 817 (1951). This means that the six-year statute of limitations for suing on these individual breaches, i.e., missed monthly payments, expired in February through April 1997, before the judgment for...