IN RE MARRIAGE OF VAN BOXTEL v. Van Boxtel

• Decision Date: 02 May 2001
• Docket Number: No. 99-0341.,99-0341.
• Citation: 625 N.W.2d 284,242 Wis.2d 474,2001 WI 40
• Parties: IN RE the MARRIAGE OF: Jami L. VAN BOXTEL, Petitioner-Appellant-Cross-Respondent-Petitioner, v. Brent F. VAN BOXTEL, Respondent-Respondent-Cross-Appellant.
• Court: Wisconsin Supreme Court

242 Wis.2d 474

2001 WI 40

625 N.W.2d 284

IN RE the MARRIAGE OF: Jami L. VAN BOXTEL, Petitioner-Appellant-Cross-Respondent-Petitioner, v. Brent F. VAN BOXTEL, Respondent-Respondent-Cross-Appellant.

No. 99-0341.

Supreme Court of Wisconsin.

Oral argument February 7, 2001.

Decided May 2, 2001.

For the petitioner-appellant-cross-respondent-petitioner there were briefs by John Miller Carroll and John Miller Carroll, S.C., Milwaukee, and oral argument by John Miller Carroll.

For the respondent-respondent-cross-appellant there was a brief by David J. Van Lieshout and Menn, Teetaert & Beisenstein, Ltd., Little Chute, and oral argument by David J. Van Lieshout.

¶ 1. ANN WALSH BRADLEY, J.

In this divorce action, the petitioner, Jami L. Van Boxtel, seeks review of an unpublished decision of the court of appeals upholding the circuit court's refusal to enforce a written property division agreement between the petitioner and the respondent, Brent F. Van Boxtel.¹ The petitioner asserts that the terms of the agreement are binding on the respondent and the circuit court pursuant to Wis. Stat. § 767.255(3)(L) (1995-96)² and that the circuit court erred in refusing to incorporate the agreement into its judgment. We disagree.

¶ 2. We conclude that because the agreement was entered into after divorce proceedings commenced, it is a stipulation under Wis. Stat. § 767.10(1). We also conclude that the respondent repudiated his consent to that stipulation and, therefore, we uphold the circuit court's refusal to incorporate it into the judgment. Accordingly, we affirm the decision of the court of appeals.

¶ 3. The relevant facts are not in dispute. The petitioner and respondent married in July 1994. At the time of the marriage, the petitioner owned a home on Walter Avenue in Appleton. The respondent also owned property in Appleton, which was sold shortly after the marriage. With the proceeds of this sale, the couple then built a new home. The Walter Avenue property was subsequently sold in April 1996.

¶ 4. One month later, in May 1996, the petitioner filed for divorce. Shortly thereafter, she sought to purchase her own home. To obtain the necessary financing, the petitioner's lender required that the petitioner secure certain proceeds from the sale of the Walter Avenue property. In meeting this requirement, the petitioner asked the respondent to sign an agreement foregoing his interest in the Walter Avenue proceeds as well as any interest in the petitioner's new home.

¶ 5. The agreement specifically stated that the parties were "currently in the middle of a court proceeding for divorce," and further provided:

Now, Therefore, in consideration of the mutual covenants of this Agreement, the parties agree as follows:

1. That the [Walter Avenue property] and the net proceeds from the sale of such residence has [sic] always been and shall continue to be the individual property of [the petitioner].

2. That a certain parcel of real estate located at 213 West Parkway Boulevard. . .or any other property purchased with the proceeds from the sale of the above mentioned real estate shall be classified as the individual property of [the petitioner].

3. That [the respondent] waives and releases all claims or rights he might otherwise have pursuant to Chapters 766 and 767 of the Wisconsin Statutes to [the Walter Avenue property], the proceeds from the sale of the same and any replacement residence purchased with such sale proceeds.

The parties signed the agreement on January 27, 1997.

¶ 6. Approximately six months after the agreement was signed, the petitioner moved for partial summary judgment seeking to enforce the agreement and preclude the respondent from making any claims to the proceeds from the sale of the Walter Avenue property. In response, the respondent submitted an affidavit contesting the agreement. In his affidavit, the respondent set forth facts challenging the validity of the agreement and asserted that "no agreement has been reached concerning the property division." The record contains no ruling on the petitioner's motion and the matter was left to be resolved at trial.

¶ 7. At the following June 1998 trial, the petitioner pursued enforcement of the agreement and incorporation of it into the divorce judgment. The respondent continued to challenge the validity of the agreement. He presented evidence to support his position that he was pressured and rushed into signing the agreement and that it was entered prior to review by his attorney.

¶ 8. In making its property division determination, the circuit court concluded that the agreement was invalid and refused to incorporate it into the divorce judgment.³ The court was persuaded that the agreement was not entered into voluntarily and ultimately concluded that, under the totality of the circumstances, the agreement was inequitable. The court thus refused to enforce the agreement and divided the proceeds from the Walter Avenue property equally between the parties.

¶ 9. The petitioner appealed and the court of appeals affirmed. She maintained that the agreement was properly executed under Wis. Stat. § 766.58 and enforceable upon divorce pursuant to § 767.255(3)(L). The court of appeals rejected the petitioner's argument and concluded that because the agreement was signed after divorce proceedings had commenced, it was a stipulation subject to court approval under § 767.10(1). Because the circuit court had not approved the agreement and, in fact, found it to be inequitable to the respondent, the court of appeals found that the circuit court did not err in refusing to enforce the agreement.

¶ 10. The specific issues presented to this court are whether the agreement between the parties is a stipulation under § 767.10(1) or a binding agreement under § 767.255(3)(L) and, in turn, whether the circuit court properly refused to incorporate the agreement into its judgment. Although the petitioner challenged numerous aspects of the circuit court's property division before the court of appeals, she has asked this court to review only the court of appeals' characterization of the agreement and the agreement's enforceability. The respondent concurs that these are the only matters before this court.⁴ [1-3]

¶ 11. This examination presents us with a question of statutory construction as it arises during the review of a circuit court's exercise of discretion. Generally, a division of property in a divorce action will be upheld absent an erroneous exercise of discretion. Cook v. Cook, 208 Wis. 2d 166, 171, 560 N.W.2d 246 (1997). However, statutory construction is a question of law that we review independently of the determinations rendered by the circuit court and the court of appeals. Blazekovic v. City of Milwaukee, 2000 WI 41, ¶ 9, 234 Wis. 2d 587, 610 N.W.2d 467. When interpreting a statute, this court seeks to identify and effectuate the intent of the legislature. Stockbridge Sch. Dist. v. DPI Sch. Dist. Boundary Appeal Bd., 202 Wis. 2d 214, 219, 550 N.W.2d 96 (1996).

¶ 12. We first address whether the court of appeals erred in characterizing this written agreement as a stipulation under Wis. Stat. § 767.10(1). The petitioner contends that the agreement is properly governed by § 767.255(3)(L) and is binding upon the parties and the circuit court. She maintains that because the parties intended to be bound by the agreement, the court should not treat it as a stipulation.⁵ The respondent, however, argues that the agreement is a § 767.10(1) stipulation subject to the approval of the court. He asserts that any agreement between spouses signed after a filing for divorce is a stipulation.

[4]

¶ 13. The parties dispute the statutory characterization of the agreement because the classification of the agreement as either a § 767.10(1) stipulation or a § 767.255(3)(L) is binding upon the court unless the terms of the agreement are "inequitable as to either party." Wis. Stat. § 767.255(3)(L). Such agreements are presumptively equitable. Id. In contrast, a § 767.10(1) divorce stipulation is only enforceable "subject to the approval of the court." Wis. Stat. § 767.10(1). Such a stipulation is merely a "recommendation jointly made by [the parties in a divorce action] to the court suggesting what the judgment, if granted, is to provide." Bliwas v. Bliwas, 47 Wis. 2d 635, 638, 178 N.W.2d 35 (1970).

[5,6]

¶ 14. We conclude that any agreement regarding the division of property entered into between spouses after divorce proceedings have commenced is a stipulation under § 767.10(1) and is therefore subject to the approval of the court. This conclusion is dictated by the language of the statute, controlling precedent, and the public policy considerations implicated when divorcing spouses enter into agreements.

¶ 15. We turn to the language of the statutes. The parties' dispute centers around whether § 767.10(1) or § 767.255(3)(L) applies to the agreement at issue. Section 767.10(1) enables spouses in an action for divorce to stipulate to certain matters relevant to their divorce judgment, subject to the approval of the court. The statute specifically provides:

The parties in an action for an annulment, divorce or legal separation may, subject to the approval of the court, stipulate for a division of property, for maintenance payments, for the support of children, for periodic family support payments under s. 767.261 or for legal custody and physical placement, in case a divorce or legal separation is granted or a marriage annulled.

Wis. Stat. § 767.10(1).

¶ 16. Section 767.255 governs the circuit court's division of property upon divorce. The statute directs the court to equally divide between the parties all property that is not a gift or inheritance. Wis. Stat. § 767.255(3). The court may alter this distribution upon considering a variety of factors, including certain written agreements under § 767.255(3)(L). That provision allows the court to consider:

Any written agreement made by the

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