Dean v. Dean

• Decision Date: 27 February 1979
• Docket Number: No. 76-418,76-418
• Citation: 87 Wis.2d 854,275 N.W.2d 902
• Parties: Russell E. DEAN, Plaintiff-Respondent, v. Buena L. DEAN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 902

275 N.W.2d 902

87 Wis.2d 854

Russell E. DEAN, Plaintiff-Respondent, v. Buena L. DEAN, Defendant-Appellant.

No. 76-418.

Supreme Court of Wisconsin.

Submitted on Briefs Jan. 31, 1979.

Decided Feb. 27, 1979.

Steven I. Cohen and Cohen, Grant, Zuidmulder, Naze & Gazely, Ltd., Green Bay, on brief, for defendant-appellant.

Robert L. Bittner and Bittner, Petitjean, Hinkfuss & Sickel, Green Bay, on brief, for plaintiff-respondent.

COFFEY, Justice.

Russell E. Dean, respondent, commenced a divorce action against Buena L. Dean, appellant, alleging cruel and inhuman treatment. The complaint specified that for a period of 8 years prior to the commencement of the action the respondent had been denied sexual relations; further, the appellant refused to socialize with Mr. Dean's friends, business acquaintances and mother. Additionally, it was alleged that Mrs. Dean had on one occasion attempted suicide and has threatened to take her life on numerous occasions as well as informing the respondent she no longer loved him and wanted a divorce. The appellant filed an answer and counterclaim, subsequently withdrawn, and on February 19, 1976 Mr. Dean was granted by default an absolute divorce.

A trial was held to resolve the alimony question and property division and the court's written decision was entered on July 22, 1976 which was supplemented 3 months thereafter. The court entered its findings, conclusions and judgment which were amended on the 18th day of January, 1977 Nunc Pro Tunc as of the date of the divorce and, at the same time, the court denied the appellant's motion for appeal costs and fees.

At the time of the divorce, the parties had been married for almost 32 years; the respondent being 56 and the appellant being 52 years of age. Their five children had all attained majority at the time of the divorce. Prior to the marriage, Mrs. Dean was employed as a secretary and then continued this type of work in her husband's business for the next 6 years, including preparing the account statements. Mr. Dean is the sole shareholder in a Brown County wholesale beer distributorship known as Dean Distributing Company.

During the trial and prior to the withdrawal of her answer and counterclaim, the appellant's attorney elicited testimony regarding the existence of an intimate-social relationship between Mr. Dean and his present part-time bookkeeper, Mrs. Betty Mayer. Mrs. Mayer, a widow, began working for the Dean distributorship in 1965 and allegedly the relationship with her employer flourished during the late 1960's and early 1970's and at that time the Dean marriage became "terribly strained." The appellant contends that Mrs. Mayer was a willing participant in the respondent's plan to divest himself of certain assets for the purpose of avoiding an equitable division of the marital estate. The appellant established to the trial court's satisfaction that Mr. Dean and Mrs. Mayer did in fact commingle their personal assets.

One of these assets is the Kelley Lake property purchased by Dean in November of 1971. At that time, Mrs. Mayer and Dean purchased parcels of lake real estate, Mayer acquiring hers for $1,250.00 and he the adjoining lot for $3,400.00. Mrs. Mayer previously owned a cottage on the lake. Despite testimony that Mrs. Mayer had paid Dean $3,400.00 in cash for his adjoining property, the court found that Dean had in fact deeded the property to the bookkeeper without consideration. Mrs. Mayer claimed that she paid for the land from dividend and pension checks she had accumulated from her late husband's employer. A representative of the bank testified that the endorsement on these checks reflected that they were deposited regularly within days of receipt by the widow.

The second asset the court found to have been wrongfully withdrawn from the marital estate was a $5,000 cashier's check issued to Russell Dean. The court concluded this money was acquired during the Dean marriage and could not be removed from the marital estate, depriving the estate of its funds, without proof that legal consideration passed from Betty Mayer to Russell Dean. In spite of testimony to the contrary from Dean and his bookkeeper, the record is void of proof that she had given Dean the money for the $5,000 check used to build a storage barn on the Kelley Lake property.

Even though Mrs. Mayer's Brown County Savings & Loan passbook reflected regular monthly deposits of $150.00 to $250.00, the appellant sought to establish that Mrs. Mayer's savings, totalling $10,438.70, was a result of "gifts" from Mr. Dean. This new account was started at the same time Mrs. Mayer had an existing bank account with the Kellogg Bank reflecting a balance of $741.17. Testimony revealed Mrs. Mayer had a third account with the Green Bay Savings & Loan and she closed the same at the time she retired the mortgage on her residence. Mrs. Mayer stated the new Brown County Savings & Loan account was made possible by her monthly deposit of salary, pension, dividend checks and accumulated interest over a four year period. Further, the mortgage on her home had now been satisfied. The Kellogg bank account showed a history of withdrawals while the new savings account had never been used for that purpose. The appellant contends that the lack of any withdrawal activity from the savings and loan account indicates that she is not the true owner when weighed against the evidence that during this period of time when she accumulated the $10,438.70, she was granted a $6,000 loan from the Kellogg Bank and a $2,000.00 loan from her part-time employer, Frank Cowles, and she redeemed a number of Series E Savings Bonds. Furthermore, during this period Mrs. Mayer bought other U.S. Savings Bonds with money from her checking account.

Further, the respondent allegedly used his mother, Mrs. Mildred Dean, in his attempts to divest himself of marital assets. Mr. Dean testified to a $6,000.00 liability evidenced by a promissory note payable to his mother. The note was reportedly executed in January of 1972 as evidence of past considerations and cash transfers between the mother and son. The respondent's explanation was not to the satisfaction of the court. Having found the respondent unable to identify or trace these funds, Judge Nier denied the $6,000.00 liability as a legitimate claim against the marital estate.

Mrs. Mildred Dean testified that she had made gifts of certain real estate to her son as she was unable to maintain the property and pay the taxes. Additionally, the respondent's mother stated that she had contributed monies for the education of the five Dean children and these funds were commingled in Dean's personal account of $15,831.31 on deposit at the West Bank in 1972. The elder Mrs. Dean testified that after the divorce action was commenced, she requested the return of the loaned "educational money." Mr. Dean closed the West Bank account asking for two cashier's checks, one payable to Mrs. Mildred Dean in the sum of $11,000.00, and the other for $5,000.00, which included the account interest, in his name. The trial court concluded that the respondent's $5,000.00 check was used to pay for the storage barn built on the Kelley Lake property.

The appellant attempted to prove the $11,000.00 loan repayment was not supported with testimony of past gifts and considerations. In support of this argument, she stated a $3,700.00 house trailer was purchased by Mrs. Mildred Dean solely for her son's use. The trial court rejected the appellant's contention and concluded that Mrs. Mildred Dean was the lawful owner of the house trailer, having used part of the $11,000.00 cashier's check in payment.

The appellant also failed to persuade the court as to the allegation that her husband, during 1974 and 1975, took unreasonably expensive vacations, in spite of the fact he admitted that on one of these trips, be "blew" $3,000.00 which he understood was part of the marital assets.

The record reflects that each party to this action produced an expert economist who testified to the value of Mr. Dean's ownership interest in the beer distributorship. Buena Dean's expert valued the business at the $158,000.00 book value; the respondent's appraiser reached an opinion that the enterprise was worth $110,000.00, based upon the capitalization of past earnings. Their disparity in opinions reflects disagreement as to whether the business is of a high risk nature and whether the capitalization of past earnings should include the losses suffered in prior years. The experts testified as to the liquidated value of the closed corporation as of February, 1975. The appellant claims it was error for the trial court to assess Mr. Dean's interest at $134,000.00 and states that the figure of $140,000.00 reflecting liquidation value more accurately represents the value of the closed corporation. She claims the higher liquidated value figure is the appropriate valuation in light of the company's extensive liquid assets.

The court's findings established the value of the marital estate at $265,419.00. Mrs. Dean was awarded $106,167.60, or a 40% Division. The 40% Division is broken down into immediate and deferred payments as follows: she was to immediately receive the Dean residence, its furnishings, a car, the couple's Wheeler Lake cottage and its furnishings and a $2,749.00 savings account, totalling $56,739.00; the remaining amount in excess of $49,000.00 was to be paid in 120 months in accordance with federal tax regulations.

The trial court rounded the balance of the property division to $49,460.00, provided for an initial payment of $500.00 and $400.00 monthly thereafter until the judgment is fully satisfied. This payment formula was designed to take a total of 120 months which complies with federal tax regulations allowing for tax free installment property divisions if made within a period of ten years. The unpaid balance interest rate was set at 7% Per annum and is a lien against the...