Goelz v. Goelz
| Decision Date | 21 January 2015 |
| Docket Number | No. 2014AP103.,2014AP103. |
| Citation | 360 Wis.2d 490,864 N.W.2d 120 (Table) |
| Parties | In re the marriage of: Donald E. GOELZ, Petitioner–Appellant, v. Karen M. GOELZ, Respondent–Respondent. |
| Court | Wisconsin Court of Appeals |
Donald E. Goelz, pro se, appeals a judgment of divorce awarding his wife, Karen M. Goelz (now known as Karen Geis), one half of his Wisconsin Retirement System pension. Goelz's primary objections are to the circuit court's invalidation of a premarital agreement and the subsequent division of the pension. Goelz also appears to take issue with the circuit court's division of other property and the decision on child support for the parties' minor child. We discern no erroneous exercise of discretion by the circuit court, so we affirm the judgment.
¶ 2 Goelz, a West Allis firefighter since 1980, married Geis, a realtor, on July 4, 1992. Based on facts found by the circuit court following an evidentiary hearing, Goelz presented Geis with a premarital agreement approximately two days before the wedding. The agreement, in most relevant part, purported to designate Goelz's pension as individual property so as to keep it out of the marital estate and protect it from division upon any divorce. Geis testified that Goelz said he would not marry her if she did not sign the agreement. Geis also testified that Goelz promised her the agreement would only be in effect for a year; his prior marriage had ended after only six months, and he wanted to avoid a repeat experience. Geis signed the agreement the day before the wedding.
¶ 3 During the marriage, the parties adopted A.M.G., Geis's biological granddaughter. A.M.G.'s birth mother was Geis's daughter from a prior relationship. In December 2003, Goelz left the fire department and began receiving disability payments. Goelz filed for divorce on August 1, 2011.
¶ 4 The first main disputed issue in the divorce was the enforceability of the premarital agreement. After an evidentiary hearing in November 2012, the circuit court found the agreement unconscionable and, as a result, unenforceable. The second main disputed issue was the division of Goelz's pension; most of the other property was covered by a partial marital settlement agreement. Goelz initially advocated for a 60/40 split in his favor. He pointed out that his income as a firefighter had not been subject to social security tax, so his social security payout would be significantly lower than Geis's. Consequently, Goelz argued, he should receive a greater share of the pension. In addition, Goelz argued that he had put in twelve years as a firefighter prior to the marriage, and only eleven during the marriage before going on disability. The circuit court, however, concluded that a 50/50 split of the pension was more appropriate. Among other things, it commented that Geis had saved less for her own retirement, spending her income to support the family, because she expected to share in Goelz's retirement benefits. The circuit court also found that Goelz encouraged Geis to spend her income during the marriage by promising to take care of things during retirement.
¶ 5 Subsequently, Geis, whose attorney was tasked with drafting the divorce judgment, sought clarification of the circuit court's oral ruling to deal with certain additional retirement accounts not expressly addressed by the settlement agreement or the circuit court. Goelz attempted to have the circuit court reconsider its determination on the premarital agreement, but the circuit court declined to do so.
¶ 6 Once the judgment was entered, Goelz formally moved for reconsideration, again asking the circuit court to reconsider its decision on the premarital agreement. Goelz claimed he had new evidence-another draft of the agreement that purportedly had notes in Geis's handwriting, showing she understood it would make his pension unavailable for division. He also asked the circuit court to reconsider its 50/50 split of the retirement account, averring that none of his income went straight into the pension. The circuit court declined to reconsider—it determined that the unsigned document had no import because it was not an agreement. Further, the arguments that Goelz was advancing about division were largely a rehash of his prior arguments. Goelz appeals.
¶ 7 Wisconsin Stat. § 767.61 (2011–12)1 controls property division upon divorce. Save for property acquired by gift, death, or with funds obtained by gift or death, the assets and debts acquired by either spouse before or during the marriage are divisible. See Derr v. Derr, 2005 WI App 63, ¶ 10, 280 Wis.2d 681, 696 N.W.2d 170. Equal division is presumed. See § 767.61(3). The circuit court may alter the presumption upon consideration of various factors, including any “written agreement made by the parties before or during the marriage concerning any arrangement for property distribution[.]” See § 767.61(3)(L). However, any such agreement is not binding if its terms are inequitable as to either party. See id.
¶ 8 A premarital agreement is inequitable if it fails to satisfy any one of three requirements: “each spouse has made fair and reasonable disclosure to the other of his or her financial status; each spouse has entered into the agreement voluntarily and freely; and the substantive provisions of the agreement dividing the property upon divorce are fair to each spouse.” See Button v. Button, 131 Wis.2d 84, 89, 388 N.W.2d 546 (1986). The first two requirements are assessed as of the agreement's execution; the third requirement is assessed at the time of execution but also, if circumstances change significantly, at the time of the divorce. See id.
¶ 9 Premarital agreements are presumed equitable. See Wis. Stat. § 767.61(3)(L). The burdens of production and persuasion are on the challenger. Button, 131 Wis.2d at 93–94, 388 N.W.2d 546. The determination of equity requires an exercise of the circuit court's discretion. See Greenwald v. Greenwald, 154 Wis.2d 767, 780, 454 N.W.2d 34 (Ct.App.1990), abrogated in part on other grounds by Meyer v. Meyer, 2000 WI 132, ¶ 37, 239 Wis.2d 731, 620 N.W.2d 382. We do not reverse the circuit court's discretionary decision unless discretion was erroneously exercised. See id. A proper exercise of discretion contemplates examining relevant facts and application of proper legal principles. See id.
¶ 10 First, “[a]n agreement is inequitable if either spouse has not made fair and reasonable disclosure to the other of his or her assets, liabilities and debts.”See Button, 131 Wis.2d at 95, 388 N.W.2d 546. Geis testified that she and Goelz never exchanged such information.2 Goelz argued generally that Geis should have known about his assets. The primary purpose of the agreement was, supposedly, to keep Goelz's pension as his personal property but, with respect to that asset, Goelz admitted that he intentionally did not tell Geis of its value at the time. Specifically, he said he did not tell her the value because the death benefit she might be entitled to was worth less than the full amount of the pension, and he did not want her to think she would be entitled to the full amount.
¶ 11 In his reconsideration motion, Goelz asked the circuit court to compare two versions of the premarital agreement—the one signed and entered as an exhibit at the November 2012 evidentiary hearing and an amended unsigned version that Goelz found in a box in his home well after the hearing. The circuit court rejected the unsigned version, noting that it could not be a contract if unsigned when there was a signed version. It was not erroneous for the circuit court to reject the “new” evidence.
¶ 12 Goelz suggests that the unsigned version shows their meeting of the minds, because Geis allegedly mapped out her understanding that Goelz would get his pension and she would get nothing upon divorce, and he urges this court to consider that evidence. However, the portion of the “new” document Goelz would have us consider is a handwritten table that merely indicates Goelz will receive his “pension” while Geis will receive “0.” There is still no indication that Goelz ever disclosed, or that Geis had any awareness of, the pension's value. We thus discern no erroneous exercise of discretion in the circuit court's determination that there was no evidence of a fair and reasonable disclosure.
¶ 13 Second, each spouse must enter into a premarital agreement voluntarily and freely. See id. Factors a circuit court should consider in this regard are whether each party has independent counsel and whether each party had adequate time to review the agreement. See id. at 95–96, 388 N.W.2d 546.
¶ 14 Goelz initially testified that his union attorney, a man, had drafted the agreement. Geis testified that she met with no attorney. Further, the signed agreement represented that only Goelz had consulted with an attorney and that she (the drafting attorney) had explained to Geis that she could not represent Geis's interests. On reconsideration, Goelz insisted that he and Geis had both met the female attorney. The circuit court, however, mindful of the inconsistencies, rejected Goelz's testimony and accepted Geis's testimony that she had not consulted any lawyer about the agreement.
¶ 15 The circuit court also believed Geis's testimony that she had received the agreement just days before the wedding. Indeed, the agreement was signed on July 3, 1992. The circuit court also considered Geis's testimony that she was concerned about the out-of-town guests expecting a wedding; that she had already sold her home to move in with Goelz; and that Goelz had told her the agreement should not last more than six months to a year in case the marriage ended quickly. Based on Geis's testimony, the circuit court concluded that she had been coerced and had not signed the agreement freely or voluntarily.
¶ 16 Having failed to satisfy at least two of the Button factors, the agreement is inequitable and unenforceable....
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