Gardner v. Gardner, 92-1919

Decision Date24 March 1993
Docket NumberNo. 92-1919,92-1919
Citation175 Wis.2d 420,499 N.W.2d 266
PartiesDianne K. GARDNER, Plaintiff-Appellant, d v. William E. GARDNER, Defendant-Respondent.
CourtWisconsin Court of Appeals



Dianne K. Gardner appeals from an order dismissing an action for intentional misrepresentation brought against William E. Gardner after the commencement of a divorce between Dianne and William. Because we hold that sec. 766.70(1), Stats., provides the exclusive cause of action between spouses in matters involving marital property or other property of the other spouse, and because sec. 767.05(7), Stats., bars an action under sec. 766.70(1) while an action for divorce is pending under ch. 767, Stats., we affirm the circuit court's dismissal.

Prior to their marriage on October 4, 1985, William and Dianne entered into a marital property agreement which set out their property rights in the event of divorce.

On April 12, 1991, William filed for a divorce in Washington county. At that time, William and Dianne were both residents of Washington county. While the divorce action was pending, on May 1, 1991 Dianne filed an affidavit for a temporary order with the divorce court claiming that she had been deprived of ownership interests in certain marital property during the marriage due to misrepresentations by William.

Two weeks after filing the affidavit with the divorce court in Washington county, Dianne filed several claims against William in Milwaukee county, including claims for intentional misrepresentation based on the same allegations. 1 Dianne sought compensatory and punitive damages.

Upon William's motion, the Milwaukee County Circuit Court transferred Dianne's claims to Washington County on September 20, 1991. The divorce court made a factual finding on April 14, 1992 that the marital property agreement between Dianne and William was valid. 2 The Washington County Circuit Court dismissed Dianne's claims, reasoning that the tort causes of action were actually alleging the wrongful transfer and disposition of marital assets. The court held that when a divorce action is pending, the exclusive remedy for such a transfer may be obtained in the divorce proceeding under sec. 767.275, Stats., which provides for a reassessment of the value of the estate. Dianne now appeals the circuit court's dismissal of her action for intentional misrepresentation.

The case at hand involves the interpretation of various sections of ch. 766, Stats., the Marital Property Act, and ch. 767, Stats., actions affecting the family. The interpretation of statutes is a question of law which we review without deference to the trial court. State ex rel. Newspapers, Inc. v. Showers, 135 Wis.2d 77, 85, 398 N.W.2d 154, 158 (1987).

Section 766.15, Stats., creates a duty of good faith between spouses with respect to matters involving marital property or other property of the other spouse. 3 Wisconsin appellate courts have not had occasion to elaborate on the parameters of the good faith duty imposed by sec. 766.15. Equally, the Wisconsin legislature provides few insights into its intent behind the statute. However, § 2 of the Uniform Marital Property Act is identical to sec. 766.15. The comment to § 2 explains the duty of good faith as follows:

Spouses are not trustees or guarantors toward each other. Neither are they simple parties to a contract endeavoring to further their individual interests.... A spouse is not bound always to succeed in matters involving marital property ventures, but while endeavoring to succeed in a venture, must proceed with an appropriate regard for the property interests of the other spouse and without taking unfair advantage of the other spouse.

UNIF. MARITAL PROPERTY ACT § 2 comment, 9A U.L.A. 107 (1983) (citations omitted). The duty created by sec. 766.15 appears broad. Indeed, the nature of the marital relationship implies the strictest adherence to the duty of good faith between spouses.

Section 766.70(1), Stats., 4 creates the cause of action for a breach of the duty of good faith under sec. 766.15, Stats. This cause of action is available before a divorce action is filed. Section 767.05(7), Stats. Sections 766.15 and 766.70(1), when read together, create a cause of action against all conduct, including intentional misrepresentation, that breaches the duty of good faith in matters involving marital property or other property of the other spouse.

Once the divorce action is filed, this cause of action and its remedy are no longer available. Section 767.05(7), Stats. Instead, sec. 767.275, Stats., includes in the marital estate the value of assets which would have been in the marital estate but for the waste, gift, inadequate exchange or lack of accounting by a spouse up to one year prior to the commencement of the divorce action. These kinds of conduct may then be considered by the court when dividing the marital assets. See Anstutz v. Anstutz, 112 Wis.2d 10, 12-13, 331 N.W.2d 844, 846 (Ct.App.1983); see also sec. 767.255(3), Stats.

Dianne does not specifically take issue with the idea that a cause of action for breach of the good faith duty imposed by sec. 766.15, Stats., is unavailable after a divorce action has begun. Instead, she is asserting that there is a separate common law action for intentional misrepresentation. She argues that chs. 766 and 767, Stats., do not provide the exclusive remedies for the case at hand. See sec. 766.97(2), Stats. She states that her claims are not and cannot be construed as bad faith in the management or waste of marital assets, see sec. 767.275, Stats., but are a separate cause of action.

However, intentional misrepresentation is an example of a breach of the duty of good faith imposed on spouses for matters involving marital property. In other words, secs. 766.15 and 766.70(1), Stats., encompass the common law action for intentional misrepresentation and any other breach of the duty of good faith in matters involving marital property. Section 766.70(1) also implies that a remedy of damages may be obtained for a cause of action under the section.

Absent a legislative indication to the contrary, the legislature is deemed to have intended a comprehensive statutory remedy to be exclusive. Bourque v. Wausau Hosp. Center, 145 Wis.2d 589, 594, 427 N.W.2d 433, 435 (Ct.App.1988); see also State ex rel. Russell v. Board of Appeals, 250 Wis. 394, 397, 27 N.W.2d 378, 379 (1947). Therefore, before a divorce action is filed, a breach of the broad good faith duty imposed by sec. 766.15, Stats., which includes intentional misrepresentation involving marital property and other property of the other spouse, has as its exclusive remedy sec. 766.70(1), Stats.

An examination of sec. 766.97(2), Stats., does not persuade us that Dianne may maintain a separate tort cause of action for damages to marital property. That section provides in part:

Nothing in this chapter revives the common law disabilities on a woman's right to ... institute civil actions in her own name. Except as otherwise provided in this chapter and in other sections of the statutes controlling marital property or property of spouses that is not marital property, either spouse has the right to ... institute and defend civil actions in his or her name and maintain an action against his or her spouse for damages resulting from that spouse's intentional act or negligence.

Id. Dianne argues that this section is an explicit recognition that she is entitled to maintain a common law tort cause of action against William for intentional misrepresentation which damaged marital property. We disagree.

"Wisconsin has no interspousal immunity doctrine in torts...." Zelinger v. State Sand & Gravel Co., 38 Wis.2d 98, 111, 156 N.W.2d 466, 472 (1968). The basis for this rule was explained in great detail in Wait v. Pierce, 191 Wis. 202, 209 N.W. 475 (1926). Wait recognized that at common law, a spouse could not maintain an action for damages against the other by reason of any wrong done by one spouse to the other. Id. at 205, 209 N.W. at 476. The court then noted that by statute, the legislature gradually broadened the rights of married women to protect their enjoyment of their separate property and their person or character, the same as if they were single. 5 See id. at 205-06, 209 N.W. at 476-77. Wait held that through the rights granted by the legislature, wives could also bring causes of action against their husbands:

In the state of Wisconsin, where over and over again for more than fifty years the legislature has in the clearest and most explicit terms removed disabilities of the wife which existed at common law, conferred upon her rights of action against the husband which were totally unknown to the common law, and where it is held that a husband may maintain an action of replevin against the wife, or that the wife may sue the husband with respect to her property, we find no likelihood of the social order being shattered by holding that she has a right of action for injuries done to her person and character as well as to her property whether committed by the husband or third parties.

Id. at 216, 209 N.W. at 480.

The Wait opinion and the statute granting married women the right to maintain actions to protect their property, character and persons must be read in light of the property system in place in Wisconsin until January 1, 1986. Under the former system, each spouse owned separate property interests. The passage of the Marital Property Act created a new classification of property interests owned by spouses: marital property. Although each spouse can bring individual property into the marriage, it is presumed that property is marital property. See sec. 766.31(2), Stats. Each spouse owns an undivided one-half interest in marital property. See sec. 766.31(3). With the creation of this new form...

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