Duffy v. Duffy, 85-0433

• Decision Date: 19 June 1986
• Docket Number: No. 85-0433,85-0433
• Citation: 132 Wis.2d 340,392 N.W.2d 115
• Parties: In re the Marriage of Verdeen DUFFY, Joint-Petitioner-Respondent, v. Richard P. DUFFY, Joint-Petitioner-Appellant.
• Court: Wisconsin Court of Appeals

Page 115

392 N.W.2d 115

132 Wis.2d 340

In re the Marriage of Verdeen DUFFY, Joint-Petitioner-Respondent, v. Richard P. DUFFY, Joint-Petitioner-Appellant.

No. 85-0433.

Court of Appeals of Wisconsin.

Submitted on Briefs May 23, 1986.

Opinion Released June 19, 1986.

Opinion Filed June 19, 1986.

[132 Wis.2d 342] James A. Lagodney and Loeb, Ching & Lagodney, S.C., Madison, for joint-petitioner-appellant.

Carolyn P. Schoenwald and Schoenwald & White, Madison, for joint-petitioner-respondent.

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

EICH, Judge.

Richard Duffy appeals from the portion of a divorce judgment dividing the parties' property. The issues are whether the trial court abused its discretion by: (1) including the present value of state benefits to be received by Richard after age sixty-five in the marital estate; (2) according little or no weight to the uncontradicted testimony of a psychiatrist; (3) failing to articulate the reasons for the division; and (4) failing to include interest on a $3,954.94 "equalization payment" to be made in the future. We find no abuse of discretion with respect to the first three issues. We reverse on the fourth, however, and remand to the trial court with directions to provide for interest on the $3,954.94 payment or to state its reasons for not doing so.

The facts are not in dispute. Richard and Verdeen Duffy were divorced in 1985 after thirty-three years of marriage. All their children are grown. Their house and Richard's employee benefits are the only marital assets of significant value.

Richard worked in public education for twenty-two years. As a public employee, he participated in the Wisconsin Retirement System. By 1980, Richard had become permanently and totally disabled and began receiving monthly disability payments from the Wisconsin Department of Employee Trust Funds (WDETF). Richard was fifty-four at the time of the divorce, and the trial court treated the payments he would receive after age sixty-five as the equivalent of a retirement pension. The court assigned a present value to those benefits and awarded approximately fifty percent of the marital estate to each party, with Verdeen receiving the couple's residence. Other facts will be discussed below.

The division of marital property is committed to the sound discretion of the trial court, and we will reverse only where that discretion has been abused. Bahr v. Bahr, 107 Wis.2d 72, 77, 318 N.W.2d 391, 395 (1982). An abuse occurs when the court fails to consider proper factors, bases its decision on mistaken facts, or when it makes an inadequate or excessive division. In Matter of Marriage of Jasper v. Jasper, 107 Wis.2d 59, 63-64, 318 N.W.2d 792, 794-95 (1982). A court also abuses its discretion when it bases its decision on an erroneous view of the law. State ex rel. North v. Goetz, 116 Wis.2d 239, 245, 342 N.W.2d 747, 750 (Ct.App.1983).

I. DISABILITY BENEFITS

Richard argues that his state benefits, present and future, are disability benefits and not subject to division, citing Leighton v. Leighton, 81 Wis.2d 620, 261 N.W.2d 457 (1978).

In Leighton, the husband was injured while in military service and received disability payments from the federal government. The court distinguished the benefits from those paid under traditional retirement or pension plans, treating them as earned income, rather than as an asset of Richard Teskoski, a WDETF employee who handled Richard's account, testified as to the structure of the Wisconsin Retirement System and Richard's participation in it. His testimony was uncontradicted. According to Teskoski, the system is funded by employee and employer contributions and provides retirement and disability benefits to public employees. All employees have individual accounts in the fund, and all benefits, whether for retirement or disability, are paid through those accounts. ¹ The payment amounts are determined by the length and type of employment and the highest or most recent wage level attained. For disability payments, the actual years of service are augmented by the number of years remaining until normal retirement.

                the marriage.  Leighton, 81 Wis.2d at 636-37, 261 N.W.2d at 464-65.   A similar result was reached in Pfeil v. Pfeil, 115 Wis.2d 502, 505-06, 341 N.W.2d 699, 701-02 (Ct.App.1983), where the court offered an additional reason for the nondivisibility of military disability benefits--the intent of Congress as expressed in laws shielding the benefits from certain creditors' claims.  We do not consider either case as controlling
                

Teskoski testified that Richard had three options when he became disabled in 1980: he could liquidate his account and receive a lump sum, representing his accumulated contributions plus interest; he could leave his money in the fund to accumulate interest until he reached retirement age, at which time he would be paid an annuity; or he could apply for monthly benefits. He chose the last option, and he will receive the benefits for the rest of his life, subject, for a time, to annual medical verification of his disability. ²

The trial court was careful to distinguish between those benefits received by Richard prior to reaching retirement age and those accruing thereafter, treating the former as exempt disability payments under the rule of Leighton and Pfeil and the latter as the equivalent of a pension. The fund itself makes a similar distinction. Teskoski testified that after age sixty-five a disabled employee need no longer secure annual medical certification of the continuation of his or her disability in order for the benefits to continue. From that point on, Richard's benefits will continue as before for the rest of Richard's life and they are indistinguishable from normal pension benefits.

We conclude, therefore, that the trial court did not err in treating the benefits Richard will receive after he reaches age sixty-five as the equivalent of a pension. The court selected an appropriate method of valuing the benefits, and its valuation is supported by the evidence. ³

II. MEDICAL EVIDENCE

In support of his request that he be awarded the parties' house, Richard's psychiatrist testified that living in the house would be a "positive benefit" to Richard in light of his statement that he enjoys gardening Richard argues that, by so ruling, the trial court impermissibly ignored "credible and uncontradicted testimony of a medical expert." "Positive uncontradicted testimony as to the existence of some fact, or the happening of some event, cannot be disregarded by a court ... in the absence of something in the case which discredits ... it ...." (Emphasis added.) Trinity Memorial Hosp. v. Milwaukee, 98 Wis.2d 220, 225-26, 295 N.W.2d 814, 817 (Ct.App.1980), quoting Thiel v. Damrau, 268 Wis. 76, 85, 66 N.W.2d 747, 752 (1954). The psychiatrist's only testimony on the point, however, did not relate to any fact or event; it was simply that Richard told him that he enjoys gardening and working around the house and that the psychiatrist felt that, to the extent awarding the house to Richard would allow him to continue such activities, it would be "a positive benefit in his future." ⁴ This is not the type of testimony discussed in Trinity Hospital, and its presence in the record does not require reversal of the court's order. ⁵

and household tasks. Such activities, according to the psychiatrist, help lessen tension. The trial court declined to accept the psychiatrist's recommendation, noting that gardening and similar household tasks are pursuits Richard could easily follow at other locations. The court awarded the house to Verdeen, after considering the other evidence in the case, including the competing desires of both parties and the inability of either to refinance the property on his or her own.

III. THE TRIAL COURT'S REASONING

Richard correctly points out that a divorce court should articulate the reasons underlying its division of property in light of the recognized decisional guidelines developed by the legislature and the supreme court. Marriage of Haugan v. Haugan, 117 Wis.2d 200, 215, 343 N.W.2d 796, 803-04 (1984). Richard's specific complaints are that the trial court did not consider his or Verdeen's age, physical and emotional health or earning capabilities. We disagree. The court's memorandum decision and its findings of fact and conclusions of law discuss these factors, as well as other relevant criteria, in detail, ⁶ and they set forth a reasoned resolution of the parties' contentions based on those criteria.

Richard's real complaint is that his position did not prevail, and his argument, however wide-ranging, is without...