Conrad v. Conrad, 77-017

Decision Date06 November 1979
Docket NumberNo. 77-017,77-017
Citation284 N.W.2d 674,92 Wis.2d 407
PartiesMary C. CONRAD, Plaintiff-Appellant, v. Robert O. CONRAD, Defendant-Respondent.
CourtWisconsin Supreme Court

Sandra A. Edhlund and Edhlund & Rachofsky, Milwaukee, for plaintiff-appellant.

Ray T. McCann, Milwaukee, for defendant-respondent.


This is an appeal by the wife from an order refusing her motion to reopen the property division of the divorce judgment entered in this case.

The parties in this action were married on September 11, 1965. As a result of this marriage, a daughter was born on January 25, 1967, and a son on January 26, 1969. On October 24, 1974, the wife commenced an action for divorce against the husband alleging cruel and inhuman treatment on his part.

On November 8, 1974, and November 29, 1974, the wife and husband respectively each filed a Financial Declaration with the Family Court in which they detailed their assets and liabilities. In her Financial Declaration the wife listed several bank and saving and loan accounts held jointly with her husband and several accounts held solely by her husband. She also listed three accounts held solely in her own name which totaled $2,923.99.

Similarly, the husband in his Financial Declaration listed several accounts held jointly with his wife and one account held solely by himself. According to the husband's declaration, the joint accounts totaled approximately $30,500. The husband also listed several parcels of real property held either solely by himself or jointly with his wife.

At the time of these Financial Declarations, the wife was employed as a secretary with a net monthly income of $608.38. The husband was employed as an auditor for the state, with a net monthly income of $1,076.

The merits of the divorce action were tried on June 22, 1976, and the trial court granted a divorce to the wife based on her claim of cruel and inhuman treatment. The trial judge adjourned the action for a trial on the property division, telling the parties that he would be happy to consider a stipulation with respect to a division of the estate.

On the adjourned date, December 1, 1976, the parties appeared in person and by their respective counsel and informed the court that an oral stipulation with respect to the division of the estate had been reached. The wife's attorney stated the stipulation into the record as follows:

"That a property division in this case will be itemized as follows: That the plaintiff will receive from the defendant the total sum of $43,750.

"In addition thereto, he will pay $100 per month as support for the two minor children making a total payment by the defendant of $200.

"That each party, that is the plaintiff and the defendant, will be entitled to take one of the children as a deduction on their income tax, both state and federal.

"That neither party will receive alimony and alimony to both will be denied.

"That each party will be responsible for their own attorney's fees.

"With regard, Your Honor, to the payment of the $43,700, our understanding is that will be in cash and that it will be finalized six months from today's date. . . ."

The matter of custody was discussed by the trial court and the attorneys and an agreement was also reached with respect to that issue. The trial court then, without directing any questions to the parties themselves, made the following statement on the record:

"With regard to the division of estate, the court will make the following orders:

". . .

"The court will order that the defendant pay to the plaintiff the sum of $43,750 to be paid as follows: $10,000 to be paid within 30 days from today's date, the balance of $13,750 to be paid without interest to the plaintiff within six months from today's date. . . ."

This hearing concluded with the husband's attorney stating that the record should show that both parties were in court, heard the stipulation, and agreed to it. Even though no questions were asked of the parties on the record, the court agreed.

Thereafter, the wife's attorney drafted findings of fact and conclusions of law and a judgment for the court's signature. In these findings, the joint accounts held by the parties totaling $33,486.12 were listed. Additionally, accounts held solely in the wife's name were listed. The three accounts that the wife had revealed on her Financial Declaration filed on November 8, 1974, were again listed, plus another savings account she had opened. The total of the accounts held solely in the wife's name was $5,442. The proposed findings of fact and the judgment contained the following provision with respect to the wife's solely owned accounts:

"As to paragraph II entitled Accounts in Plaintiff's Name Only totaling $5,442, it is specifically understood by and between the parties that the sum of $5,442 contained in said accounts are a part of the joint marital estate. It is further understood that said amount is to be included in the order providing for a division of the joint marital estate and that defendant may subtract the amount of $5,442 which is already in the possession of the plaintiff through the passbooks to the accounts identified in II from the total amount of the estate awarded to the plaintiff in the sum of $43,750."

The total value of all the property listed in the proposed findings and judgment, including the wife's accounts, was $124,167.69.

After the wife saw the proposed findings and the judgment drafted by her counsel, she objected to the provision quoted above which permits the husband to subtract the $5,442 she already has in her possession from the $43,750 he was required to pay to her. The wife's attorney, unable to satisfactorily explain this provision to her, asked the court to. The parties, without filing any formal motion, appeared before the trial judge on February 3, 1977, for what was referred to as an "interpretation of the judgment . . . predicated upon a stipulation . . ." At this hearing, both attorneys referred to the fact that the $43,750 figure was arrived at after substantial negotiations had been held in chambers. The wife's attorney stated that he had a problem of communication with the plaintiff and asked the court to talk to her to explain the effect of the property division.

The record reveals an extensive colloquy between the parties, their attorneys, and the judge then took place. The wife made known her objection to subtracting the $5,442 she held in accounts in her own name from the $43,750 the court had ordered the husband to pay her as a property division. She also questioned the total value of the estate stating that her attorney had told her it was $90,000, while the figures used in the proposed findings and judgment indicate a total value of $124,167.69.

The court repeatedly stated that the valuation of the estate was based on the Financial Declarations the parties had filed and the division was based on the stipulation she had agreed to. The wife objected to basing the property division on the Financial Declarations which were, at that time, over two years old. She was informed, however, by the attorneys and the court that they could not relitigate nor retry the case ". . . at this late stage." The court stated that judgment would be entered as previously orally ordered. Thereafter, on February 8, 1977, the court signed the proposed findings of fact and conclusions of law, and the judgment was entered.

After the judgment was entered, the wife substituted attorneys and then filed a notice of motion and motion dated April 29, 1977, asking the court to "correct the judgment, order and to reopen the judgment." She asked the court to reopen and reconsider the judgment of divorce as it relates to, among other things, the property division. As grounds for this motion, the wife claimed that her agreement to the stipulation was obtained under duress and was coerced and not wholly knowing and voluntary; that the defendant had failed to make a full disclosure of his assets to the court; and that the judgment was inequitable and insupportable in light of the evidence of record. The wife filed an affidavit in support of her motion in which she asserted that her trial counsel had told her immediately prior to the December 1, 1976 hearing that she had to agree to the proposed settlement. She further asserted that at that time she was not fully informed of the nature, extent, and terms of the proposed stipulation to which she was told to agree.

The trial court, without a hearing, denied this motion to reopen on June 21, 1977.

It is from this order denying her motion to correct and reopen the judgment that the plaintiff now appeals to this court and states the issue on appeal to be:

"Did the trial court abuse its discretion in denying plaintiff-appellant's motion to correct and reopen the judgment?"

On appeal, the wife claims that her motion to reopen the judgment as it relates to the property division was brought pursuant to sec. 247.37(2), Stats., even though she did not specifically cite that section in her motion in the trial court. Sec. 247.37(2), Stats., provides in pertinent part:

"(2) So far as said judgment affects the Marital status of the parties, the court has the power to vacate or modify the same for sufficient cause shown, upon its own motion, or upon the application of either party to the action, at any time within six months from the granting of such judgment. . . ." (emphasis added)

Clearly, that portion of the judgment which the wife wants reopened does not deal with the marital status of the parties, but rather with the property division ordered by the trial court. Her reliance on appeal on sec. 247.37(2), Stats., is misplaced. That section provides no authority for reopening a divorce judgment as it relates to property division.

The trial court did, however, have the power to reopen the divorce judgment, including the property division, in this...

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