Evans v. Evans
Decision Date | 18 September 1985 |
Citation | 126 Wis.2d 514,376 N.W.2d 868 |
Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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: CLARA JOANNE EVANS, Petitioner-Appellant, v. ROBERT JOHN EVANS, Respondent. 84-1666. |
Court | Wisconsin Court of Appeals |
Circuit Court, Waukesha County
Affirmed in part; reversed in part and cause remanded
Appeal from a judgment of the circuit court for Waukesha county: Patrick L. Snyder, Judge.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
The petitioner-appellant, Clara Joanne Evans (Joan), appeals from the terms of a judgment of divorce awarded to her against Robert John Evans (Robert). Joan raises the following issues on appeal: (1) whether stock owned by Robert should have been excluded from the marital estate; (2) whether the trial court abused its discretion in dividing the marital estate with respect to Robert's pension plan, Joan's debts and the award of the piano to Robert; and (3) whether the trial court abused its discretion in fixing the amount and duration of the maintenance award.
We affirm the trial court's exclusion from the marital estate those shares of stock produced by the stock splits of the gifted shares. We reverse the trial court's exclusion from the marital estate those shares of stock produced by the stock dividend reinvestment program. Because the property must be divided anew, we direct the trial court to reconsider Joan's debts and the award of the piano. We also direct the trial court to address the impact of certain information not made a part of the appellate record on its valuation of Robert's pension plan. Finally, because the new property division may influence the trial court's determination as to maintenance, we also remand for reconsideration of the amount and duration of maintenance ordered.
Joan and Robert were married on July 16, 1955 in Missouri. At the time of the marriage, Joan was twenty-one and Robert was twenty-two. Three children were born of the marriage, all of whom were adults at the time of trial. Joan holds a B.S. degree and is certified to teach English and sociology. She worked during several periods of the marriage as a substitute teacher. In the fall of 1983, she enrolled in graduate school at the University of Wisconsin pursuing a course of study in public policy and administration. She intended to apply for law school admission for the fall of 1984. At the time of trial, Robert was employed as a sales engineer.
Joan filed a petition for divorce. Findings of fact, conclusions of law and judgment were entered on May 23, 1984. Joan appeals. Additional facts of the case and specifics of the trial court's decision and judgment will be set forth as needed.
The major issue we address involves the trial court's exclusion of certain shares of Robert's stock from the marital estate. Robert testified at trial that he had received 20 shares of stock in the National City Bank of New York, the predecessor company of Citicorp, as a gift from his father. Robert testified that he received the stock on November 10, 1954, approximately eight months prior to his marriage to Joan. The stock split several times over the years and by 1973 Robert had acquired a total of 232 shares. At that point, Robert went into a stock dividend reinvestment program which brought the total number of shares up to 403.785 at the time of trial. Robert further testified that he had acquired an additional 36 shares of Citicorp stock by converting a Citicorp note which he had also received as a gift from his father prior to the marriage. The 36 shares of stock are included in the 403.785 total.
The trial court excluded all of the 403.785 shares of Citicorp stock from the marital estate. The trial court found that Robert had received the original 20 shares of stock as a gift from his father prior to the marriage and concluded that all of the 403.785 shares were to be excluded under sec. 767.255, Stats., because they were the product of a gift 'as well as an appreciation in number and value of those shares as a result of a stock dividend reinvestment program during the marriage.' Relying on Anstutz v. Anstutz, 112 Wis.2d 10, 331 N.W.2d 844 (Ct. App. 1983), the trial court reasoned that any appreciation in value of a nonmarital asset traceable to that asset remains nonmarital property and is not subject to division under sec. 767.255. 1 The trial court further stated that the exclusion of the stock from the marital estate would not impose an undue hardship on either party.
Joan contends the trial court erred in excluding the 403.785 shares of Citicorp stock from the marital estate. Her reasons are threefold: (1) Robert failed to establish to the requisite burden of proof that any of the stock was a gift; (2) even if Robert met his burden to show the original 20 shares of stock were a gift, he did not meet his burden to establish that the 232 shares were acquired through stock splits; and (3) the trial court erred in excluding those shares of stock that Robert acquired through the dividend reinvestment program.
In order to address Joan's contention that Robert failed to meet his burden of proof to establish that certain shares of stock are entitled to excluded status under sec. 767.255, Stats., we must first establish what burden of proof Robert is required to meet. We are persuaded that the ordinary civil burden--to a reasonable certainty by the greater weight of the credible evidence--applies.
A divorce proceeding is a civil action governed by ch. 767, Stats. The ordinary burden of proof applied in a civil action is proof to a reasonable certainty by the greater weight of the credible evidence. Wangen v. Ford Motor Co., 97 Wis.2d 260, 299, 294 N.W.2d 437, 457 (1980). See also Wis J I--Civil 200. While we are aware of no case which specifically states that the ordinary civil burden of proof applies to actions affecting the family under ch. 767, we see no reason why the ordinary civil burden should not apply. 2 Logically, then, a party seeking to exclude property under sec. 767.255, Stats., must show that it was acquired as a gift, bequest, devise or inheritance to a reasonable certainty by the greater weight of the credible evidence. 3 In the absence of such proof, the court must presume that all other property is to be divided equally between the parties. Sec. 767.255.
Whether or not an item of property was a gift is a finding of fact. See Bonnell v. Bonnell, 111 Wis.2d 337, 340, 330 N.W.2d 237, 239 (Ct. App. 1983), rev'd on other grounds, 117 Wis.2d 241, 344 N.W.2d 123 (1984). Findings of fact made by a trial court will not be upset on appeal unless clearly erroneous. Sec. 805.17(2), Stats.
In this case, Robert testified that he had received 20 shares of stock as a gift from his father prior to his marriage to Joan. He also testified that he acquired 36 shares of stock by converting a Citicorp note. Robert stated that he had been employed by his father prior to the gift of 20 shares but that he did not receive the stock as compensation for his work. The stock certificate bears only Robert's name. Robert further testified that he acquired the 232 shares through a series of stock splits.
The trial court found that Robert received the original 20 shares of stock as a gift from his father. 4 It also found that the 36 shares were acquired through conversion of a Citicorp note and that the 232 shares were acquired through a series of stock splits. Our review of the record persuades us that Robert met his burden to establish to a reasonable certainty by the greater weight of the credible evidence that the original 20 shares of stock were given to him as a gift, the 36 shares were acquired with gifted funds and the 232 shares were acquired through stock splits. We conclude that the trial court's factual findings are not clearly erroneous and they will not be disturbed on appeal. See sec. 805.17(2), Stats.
We next consider the question of whether the stock acquired through stock splits is marital property subject to division under sec. 767.255, Stats. This is a question of law. See Weiss v. Weiss, 122 Wis.2d 688, 692, 365 N.W.2d 608, 610 (Ct. App. 1985). Therefore, we owe no deference to the trial court's legal determination. First National Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).
A stock split is a change in the form of the stockholder's interest in the company; it is not a change in the substance of the property. See 11 W. Fletcher, Cyclopedia of the Law of Private Corporations § 5362.1, at 749 (perm. ed. 1971). A stock split does not generally alter the amount of the corporation's capital, Mount v. Mount, 476 A.2d 1175, 1179 (Md. App. 1984), nor does it increase the value of an ownership interest. In re Marriage of Scott, 407 N.E.2d 1045, 1048 (Ill. App. 1980). A stock split merely increases the number of shares held. Id.
We are persuaded that the 232 shares of stock acquired through stock splits were properly excluded from the marital estate. Robert's original proportionate interest in the corporation was not affected by the stock splits. The 232 shares acquired through stock splits are technically the same property as the shares held before the splits and therefore the new shares retain the same character as the originals. See In re Marriage of Scott at 1048. We view the shares of stock acquired through stock splits as being similar to the economic appreciation of an asset. See Plachta v. Plachta, 118 Wis.2d 329, 333, 348 N.W.2d 193, 195 (Ct. App. 1984). We thus regard the shares of stock acquired through stock splits as nonmarital property. We affirm this portion of the property division award.
Joan's final contention with respect to the stock is that the trial court improperly excluded those shares of Citicorp stock acquired through Robert's...
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