Holbrook v. Holbrook
| Citation | 309 N.W.2d 343,103 Wis.2d 327 |
| Decision Date | 04 June 1981 |
| Docket Number | No. 80-1290,80-1290 |
| Parties | Judith B. HOLBROOK, Plaintiff-Respondent, v. John S. HOLBROOK, Jr., Defendant-Appellant. * |
| Court | Court of Appeals of Wisconsin |
Review Denied.* Harry F. Peck and Louise A. Ptacek of Petrie, Stocking, Meixner & Zeisig, S. C., Milwaukee, on briefs, for defendant-appellant.
Burton A. Strnad of Strnad & Gossens, S. C., Milwaukee, on brief, for plaintiff-respondent.
Before DECKER, C. J., MOSER, P. J., and CANNON, J.
This is an appeal from the property division, family support and attorneys' fees awards of the amended divorce judgment dated September 5, 1980. We vacate, in part, the property division and the award of attorneys' fees and remand for further findings consistent with this opinion. We affirm the family support award.
John and Judith Holbrook were married on July 28, 1962, and remained married for eighteen years. At the time of their divorce they had four minor children, ages 16, 14, 11 and 3. Their youngest child is physically disabled due to cerebral palsy. Judith worked as a school teacher for the first two years of the marriage while John attended law school. After John's graduation from law school, Judith did not work outside of the home.
John is currently a partner in the law firm of Quarles & Brady, and, at the time of the divorce, was earning $112,000 per year.
The trial court divided and valued the assets of the parties, as follows:
Judith: Homestead $152,300
Household furnishings $ 15,000
Checking and savings
accounts in her name 1
1975 Buick Station Wagon $ 1,000
All securities owned by either
or both of the parties except
the stock in Ashbourne, Ltd. $ 3,138
Life insurance policies on her
life 2
Cash payment $ 35,000 3
John: Partnership interest in Quarles
& Brady (capital account
value of $23,790 plus
"intangible or goodwill
value" of $161,330 4 $185,120
1977 Plymouth Voyager Van $ 3,000
Checking and savings accounts
in his name 5
Household goods in his
possession $ 2,000
Stock in Ashbourne, Ltd. 6
Additionally, the court valued John's retirement benefits at $12,179, but determined that the benefits accrued to the date of the original decision should be equally divided when John actually receives them, after he retires.
The court found that John's gross income was $112,000. Judith was awarded custody of the children. The court ordered family support payments to Judith and the children of $60,000 per year, or $5,000 per month (in addition to the cash payment ordered as part of the property division). John was also ordered to pay $1,000 per month for seven months, and $500 in the eighth month immediately following the entry of judgment. This provision appears to have been included to cover Judith's attorneys' fees. The court further ordered that John pay Judith for the income taxes payable for the 1980 temporary family support and that he pay for all health care costs for the children.
John makes several claims of error on appeal regarding the valuation and distribution of the marital estate, as well as the family support and attorneys' fees awards. He contends:
1. that the trial court improperly valued:
a. the homestead,
b. the automobiles, and
c. the retirement benefits;
2. that sale of the homestead should have been ordered;
3. that the $60,000 annual maintenance award was excessive;
4. that he should not have been required to contribute to Judith's attorneys' fees;
5. that the trial court erred in finding that John's partnership has a goodwill or intangible value which is a marital asset to be included in the property division; and,
6. that the trial court erred in establishing a goodwill value of $161,300 because the calculation of that figure was based upon an unproven factual assumption.
VALUATIONS OF HOMESTEAD, AUTOMOBILES AND RETIREMENT BENEFITS
Homestead
The trial court found that the homestead, a large brick home on Newton Avenue in Shorewood, Wisconsin, had a value of $152,300, subject to a mortgage of $41,962. John claims that the trial court erroneously valued the homestead as of December 1979, and should have valued it as of the date of the commencement of the trial, September 26, 1979. John's expert testified that on September 26, 1979, the home had a value of $185,000. Judith's expert testified at the December 10, 1979, hearing that he appraised the home in August of 1979, and estimated its value to be $162,000. He testified also that between August of 1979, and December 1979, the market had changed and the value of the home had fallen by about five percent to seven percent.
The divorce in this case was granted orally from the bench on December 10, 1979. 10 It is settled law in Wisconsin that this is the date for determining the value of assets. 11 In the absence of exceptional intervening circumstances, 12 we are not at liberty to conclude that some other date should have been used.
The valuation of assets is a difficult and imprecise obligation of a trial judge in a divorce action. The values of some assets can fluctuate markedly throughout the months of a divorce proceeding and, even on one given date, there may be several conflicting opinions of the value of a certain asset. As the fact finder, it is the trial judge who must draw reasonable inferences and come to reasonable, albeit disputable, conclusions as to the value of assets as of the date the divorce is granted. 13
In this case, the trial court's valuation of the homestead was properly made as of the date the divorce was granted and is not against the great weight and clear preponderance of the evidence.
We do find error, however, in the valuation of the automobiles. The only testimony in the record regarding the value of the automobiles was John's testimony, based on Bluebook values, that the Buick station wagon was worth $2,795 and the Plymouth van was worth $2,675. There was no other evidence of the value of these automobiles. However, in the amended findings of fact, the trial court valued the Buick station wagon at $1,000 and the Plymouth van at $3,000.
A court is not required to adopt uncontradicted testimony if it is inherently improbable. 14 However, "(p)ositive uncontradicted testimony as to the existence of some fact, or the happening of some event, cannot be disregarded by a court or a jury in the absence of something in the case which discredits the same or renders it against reasonable probabilities." 15
The trial court gave no explanation of its reasons for rejecting the uncontradicted valuations of the automobiles. The failure to set forth its reasoning rendered its analysis of the valuations incomplete, and was an abuse of discretion. 16 Accordingly, we vacate the trial court's valuation of the automobiles and instruct the court on remand to either adopt the uncontradicted values testified to at trial ($2,795 for the Buick station wagon and $2,675 for the van) or to explain what in the case discredited these valuations or rendered them improbable.
In reference to John's retirement benefits from Quarles & Brady, the amended findings of fact and conclusions of law equivocally state: The latter statement apparently refers to the admissions by the expert who valued the plan at $12,179 17 that there were certain errors made in computing that amount. 18 The court then went on, not to divide the present value of the retirement benefits, but to order that when they become due "(t)he proceeds shall be divided equally between the parties based upon the pension benefits accrued as of the date of the original Decision in this action."
John contends on appeal that the court was obligated to distribute the present value of the benefits at the time of the divorce and that it was error for the trial court to postpone, for at least twenty-five years, the division of the retirement benefits.
In Bloomer v. Bloomer 19 our supreme court recognized that the valuation and division of pension rights is a matter 1. the trial court may determine the amount of the employee-spouse's contribution to the fund, plus interest, and award the other spouse an appropriate share;
for the trial court's discretion. 20 The court explained that there are at least three ways that pension rights can be valued and divided
2. the court may award the nonemployee-spouse a share of the present value of the employee-spouse's retirement benefits when they vest under the plan. In addition to discounting to present value, further discounting should be made to account for the probability of death before qualification for benefits and for vesting. Consideration should also be given to the employee-spouse's life expectancy as a retiree. This approach may be too speculative in some situations; 21
3. the trial court may determine a fixed percentage of any future payments under the employee-spouse's pension plan...
To continue reading
Request your trial
-
Bender v. Bender
...(Mo. 1982); Kikkert v. Kikkert, supra, 477-78; Endy v. Endy, 412 Pa. Super. 398, 404-405, 603 A.2d 641 (1992); Holbrook v. Holbrook, 103 Wis. 2d 327, 341-43, 309 N.W.2d 343 ([App.] 1981)." Krafick v. Krafick, supra, 234 Conn. Because, under the present value method, the trial court awards t......
-
Krafick v. Krafick
...v. Kikkert, supra, at 477-78, 427 A.2d 76; Endy v. Endy, 412 Pa.Super. 398, 404-405, 603 A.2d 641 (1992); Holbrook v. Holbrook, 103 Wis.2d 327, 341-43, 309 N.W.2d 343 (1981). The second and third recognized methods for valuing and distributing pensions involve delaying distribution until th......
-
Prahinski v. Prahinski
...Geesbreght v. Geesbreght, 570 S.W.2d 427 (Tex.Civ.App.1978); Nail v. Nail, 486 S.W.2d 761 (Tex.1972); Holbrook v. Holbrook, 103 Wis.2d 327, 309 N.W.2d 343 (1981).4 Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989); Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987); Antolik v. Harvey, 7 ......
-
In re the Marriage of Tracy J. Mcreath
...or from other accidental circumstances or necessities, or even from ancient partiality or prejudices.Holbrook v. Holbrook, 103 Wis.2d 327, 345, 309 N.W.2d 343 (Ct.App.1981) (citing 38 Am.Jur.2d., Goodwill § 1 (1968)). Stated another way, goodwill is “[a] business's reputation, patronage, an......
-
How Community Property Jurisdictions Can Avoid Being Lost in Cyberspace
...2007 WL 441709, at *23–24 (Tex. App. Feb. 8, 2007); Finn v. Finn, 658 S.W.2d 735, 740–41 (Tex. App. 1983); Holbrook v. Holbrook, 309 N.W.2d 343, 350–51 (Wis. Ct. App. 1981). 120. See Richardson, supra note 3, at 736–37. 121 . See generally R EPPY & SAMUEL, supra note 22 , at 358. 122. See s......