Fuerst v. Fuerst
| Decision Date | 27 November 1979 |
| Docket Number | No. 79-282,79-282 |
| Citation | 286 N.W.2d 861,93 Wis.2d 121 |
| Parties | Bernice FUERST, Plaintiff-Appellant, v. Lawrence FUERST, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Ronald Smith and Robinson & Smith, Appleton, for plaintiff-appellant.
Jerome H. Block and Bollenbeck, Block, Froehlich & Seymour, S. C., Appleton, for defendant-respondent.
Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.
This is an appeal from the property division of a divorce judgment made under Wisconsin's recently revised laws applicable to actions affecting marriage.
Lawrence and Bernice Fuerst were married on June 20, 1954. At the time of their divorce trial on October 16, 1978, Lawrence was 60 years old and Bernice was 51. The marriage was Lawrence's first. Bernice had two children by a prior marriage who lived with the Fuersts from the date of their marriage until the children were no longer minors, a period of twelve years. Lawrence never adopted Bernice's children, and their father's parental rights were never terminated. Bernice did not work outside the home during much of the children's minority.
At the time of the marriage, Lawrence's estate consisted of a homestead, two lots, and $700 cash. The trial court found the value of the property each party brought into the marriage to be:
Lawrence: Homestead $13,750
Lots 500
Cash 700
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TOTAL $14,950
Bernice: Stove and
Refrigerator 200
Cash 400
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TOTAL $ 600
GRAND TOTAL $15,550
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The trial court found the estate accumulated during the marriage to be $72,109.76, and the total value of the estate of the parties to be $87,659.76. The trial court initially divided the property equally between the parties, as required by sec. 767.255, Stats. 1 It then adjusted this division, crediting each party with the value of property brought into the marriage, as may be done pursuant to sec. 767.255(2). The court also awarded to Bernice one -third of the value of the property Lawrence brought into the marriage. This adjustment resulted in an award of $41,638.21 to Bernice and an award of $46,020.17 to Lawrence. The court then deducted $12,526.50 from Bernice's share and gave that sum to Lawrence to compensate him for his support of Bernice's two minor children.
Appellant Bernice Fuerst argues that the trial court erred in its property division in two respects: (1) the court required the appraisers of the homestead to submit a bona fide offer to purchase along with their appraisal, and (2) the court considered Lawrence's support of her children to be a proper factor in altering the presumptive equal division of the property.
In determining the fair market value of the homestead, the court stated that it would only accept appraisals which were accompanied by offers to purchase.
Several real estate brokers testified to the value of the homestead, which Bernice and Lawrence had agreed should be awarded to Lawrence. An abridgment of their testimony follows:
David Radke, a full-time realtor in New London, appraised the property at $39,000 on August 9, 1978, but offered to purchase the property for $35,000 at trial.
Neil Freeman, a fee appraiser in New London, submitted a written appraisal in which he stated that the reasonable present market value of the property was $42,400. Mr. Freeman did not make an offer to purchase the property.
Plaintiff, Bernice Fuerst, who had been a part-time real estate broker for about one and one-half years at the time of trial, stated that the property was worth $42,000, but that she could probably sell it for $44,000. She made an oral offer to purchase the property for $39,000 at trial.
Jim Nolan, an appraiser in Marion, Wisconsin, did not testify at trial, but submitted a written appraisal which found the fair market value to be $32,000 and made an offer to purchase for $28,800. It is disputed whether the parties stipulated that they would abide by Mr. Nolan's appraisal, or whether he was an appraiser appointed by the court.
The appraisals ranged from $32,000 to $42,400 and the offers to purchase extended from $28,800 to $39,000. The court found the value of the property to be $37,000. In divorce actions, findings of value by the trial court will be upheld unless against the great weight and clear preponderance of the evidence. Jost v. Jost, 89 Wis.2d 533, 541, 279 N.W. 202 (1979). The court's finding of value was $5,000 higher than the lowest appraisal and $5,400 below the highest appraisal. Under these facts, it is difficult to understand how the court's finding as to the value of the homestead could be considered error.
Appellant argues, however, that the court's requirement that the appraisal must be accompanied by an offer to purchase does not comply with the supreme court's definition of market value. In State ex rel. New Lisbon State Bank v. New Lisbon, 260 Wis. 607, 611, 51 N.W.2d 509, 511 (1952) the court said:
An appraiser required to submit an offer to purchase with his appraisal is not the "willing" buyer contemplated by the New Lisbon test. Neither is the seller under these circumstances willing to sell to a person planning to make a profit in an immediate resale. Had the trial court based its finding on the offers to purchase that it asked the witnesses to give, this would be error. However, the trial court did not use this test in its decision and findings of fact.
The court's finding that the homestead had a value of $37,000 is closer to the median of the appraisal values than to the median of the offer to purchase values. The court stated that its purpose in requesting the offers to purchase was to add credibility to the appraisers' values. It does not appear that the court used the offers to purchase in determining the fair market value.
Therefore, we do not find that the court's finding is against the great weight and clear preponderance of the evidence.
The trial court assumed that Lawrence should be compensated for his support of Bernice's children. In order to determine what value should be given to Lawrence's support, the trial court solicited a letter from a supervisor at the Waupaca County Department of Social Services, which read in pertinent part:
I can give you my personal estimate based solely on my 22 years experience with this agency. I would estimate the figure per child in 1954 to be approximately $34 per month increasing by 1965 to approximately $90. I feel that a $60 per month per child average for the years in question would be reasonable.
The trial court sent a copy of this letter to the parties' attorneys, and scheduled a hearing so that they could submit additional testimony. At the hearing held November 30, 1978, neither party presented testimony on the issues of whether or how much consideration should be given for defendant's support of his wife's children. Neither party objected to the court's use of the letter from the Department of Social Services supervisor as a basis for setting a value.
The court calculated the cost of the children's support during their minority on the basis of $34.00 per child per month increased by $5.00 per month each year after 1954 through 1967 resulting in a total of $17,772. The court subtracted the $1,070 in child support that Bernice received from the children's father, then reduced the resulting sum of $16,702 by one-fourth because Bernice had grown garden vegetables for the family and the children had mowed the lawn and painted the house and garage. Finally, the court offset the resulting sum of $12,526.50 against Bernice's share of $41,638.21.
Although the appellant objects for the first time on appeal to the trial court's consideration of Lawrence's support of her children, a reviewing court may, in the exercise of its discretion and in the proper case, consider new issues raised for the first time on appeal. Allen v. Allen, 78 Wis.2d 263, 254 N.W.2d 244 (1977). The supreme court in Shetney v. Shetney, 49 Wis.2d 26, 37, 181 N.W.2d 516 (1970), explained that the general rule that an appellate court will not consider, as a matter of right, matters not properly presented in the trial court, is a rule of administration and not one of judicial power. The court added that there are well recognized exceptions to this general rule including cases where all the facts are of record and the issue raised is a legal one. In this case, the issue presented raises a question of law. We elect to consider the issue.
The division of property in a divorce action is within the sound discretion of the trial court and will not be disturbed unless an abuse of discretion is shown. Polleck v. Polleck, 8 Wis.2d 295, 298, 99 N.W.2d 98 (1959).
"An abuse of discretion arises when the trial court has failed to consider proper factors, has made a mistake or error with respect to the facts upon which the division was made, or when the division itself was, under the circumstances, either excessive or inadequate." Selchert v. Selchert, 90 Wis.2d 1, 7, 280 N.W.2d 293, 296 (Ct.App.1979), citing Wilberscheid v. Wilberscheid, 77 Wis.2d 40, 44, 252 N.W.2d 76, 79 (1977).
The question we face is two-fold: (1) Is a stepparent's financial support of stepchildren a proper factor for a trial court to...
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