IN RE MARRIAGE OF HOKIN v. Hokin, 98-3680.

• Decision Date: 21 October 1999
• Docket Number: No. 98-3680.,98-3680.
• Citation: 231 Wis.2d 184,605 N.W.2d 219
• Parties: IN RE the MARRIAGE OF: Barbara G. HOKIN, Petitioner-Appellant, v. Lowell E. HOKIN, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

231 Wis.2d 184

605 N.W.2d 219

IN RE the MARRIAGE OF:

Barbara G. HOKIN, Petitioner-Appellant, v. Lowell E. HOKIN, Respondent-Respondent.

No. 98-3680.

Court of Appeals of Wisconsin.

Submitted on briefs July 9, 1999.

Decided October 21, 1999.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of David G. Walsh and Michael S. Heffernan of Foley & Lardner of Madison.

On behalf of the respondent-respondent, the cause was submitted on the brief of Linda Roberson, Jane D. Clark and Julie A. D'Angelo of Balisle & Roberson, S.C. of Madison.

Before Dykman, P.J., Vergeront and Roggensack, JJ.

¶ 1. VERGERONT, J.

Barbara Hokin appeals the property division, denial of maintenance, and child support in her judgment of divorce from Lowell Hokin. She contends the trial court erroneously exercised its discretion in using a coverture fraction to divide Lowell's retirement account because the use of a coverture fraction is based on ch. 766, STATS., rather than ch. 767, STATS.; is not an accurate reflection of the interest in the account Lowell brought to the marriage and the growth of that interest during the marriage; and results in a deviation from the presumed 50/50 property division not supported by the court's findings or the statutory factors. Barbara also contends the trial court erroneously exercised its discretion on several grounds in denying maintenance, including that it impermissibly double counted her portion of the retirement account by imputing monthly benefits to her. That same imputation of income to her in setting child support, she contends, was also an erroneous exercise of discretion.

¶ 2. We conclude the court did not apply ch. 766, STATS., in deciding to use a coverture fraction and that use of a coverture fraction is not prohibited under ch. 767, STATS. However, we decide the use in this case resulted in a property division that did not adequately take into account the statutory presumption of a 50/50 division and Barbara's non-economic contributions to the marriage. We also decide that imputing to Barbara her portion of the retirement account as income for purposes of a maintenance determination and child support was not an erroneous exercise of discretion, and that the court otherwise properly exercised its discretion in denying maintenance. We therefore affirm the court's decision denying maintenance and awarding child support, reverse the decision on property division, and remand for further proceedings on that issue.

BACKGROUND

¶ 3. Lowell and Barbara married in March 1978 when Lowell was fifty-three and Barbara was thirty-two. They met in Maine in 1971 and shortly thereafter Barbara moved to Madison, Lowell's home. They began living together early in 1972. Barbara's daughter from a prior marriage, who was seven at the time, moved with her and lived with the couple.

¶ 4. Before Lowell met Barbara, he had obtained an M.D. and a Ph.D. At the time they met, he was employed by the University of Wisconsin as a tenured professor and chair of the Pharmacology Department; Barbara had obtained a B.S. in chemistry and was working as a research technician in a laboratory. After moving to Madison she worked for approximately three years in the University of Wisconsin biochemistry department, then returned to school and obtained an undergraduate degree in finance before the couple married. Shortly after the marriage she obtained a master's degree in real estate. Barbara testified that she was unable to find work in the Madison area. According to her testimony, she went back to school in 1983, but did not get a degree because in January 1984 the parties' child, Ian, was born.

¶ 5. The trial court found that Barbara was the primary homemaker throughout the marriage and the primary child rearer, although Lowell spent considerable time with Ian and did a moderate amount of housework. She earned no more than $5,000 during the marriage and did not contribute financially to the support of the family. Lowell was the sole financial support of the household, except for the $150 per month in child support that Barbara received from her daughter's father. Lowell paid almost all of Barbara's daughter's expenses until she left home in 1982, and paid his child support obligations for his three children from his prior marriage.

¶ 6. The parties separated in 1994 and shared equally in Ian's physical placement during the separation. That was the arrangement they agreed to as a term of the divorce. After a trial on the disputed issues of property division, maintenance and child support, the court issued a decision containing the following findings of fact, among others. Lowell's retirement account with the University of Wisconsin had a money purchase value of approximately $79,100 on the date of the marriage and approximately $1,641,121 on the trial date (July 23, 1998). Lowell is seventy-four years old, in good health, still working full time as a professor and earning $9,857 gross per month plus $2,045 in social security. He hopes to continue working, but funding for research grants is uncertain because of his age. Barbara is fifty-three years old, in good health, currently unemployed and receiving $2,500 from Lowell in family support under a temporary order and $510 per month from social security for Ian, which will end upon divorce. Since the parties separated in 1994, Barbara has had only two paying jobs, both with temporary agencies and each lasting for one month. She applied for seventeen jobs. Based on the testimony of a vocational expert, which the court found credible, she has the capacity to earn $25,000 per year gross within six months in an entry level position with a leasing company, real estate company or property management company, and the potential for regular and substantial increases thereafter.

¶ 7. The trial court divided Lowell's retirement account, by far the most significant asset, by awarding $1,240,821 to Lowell and $400,300 to Barbara. For this division, the court used a coverture fraction, a fraction the numerator of which is the length of the marriage —twenty years—and the denominator of which is Lowell's total years in the plan—forty-one. The court awarded 21/41 of the value of the retirement account on the date of trial to Lowell, and divided 20/41 equally between Lowell and Barbara. The court divided equally the remainder of the marital estate, which had a net value of $176,654.¹

¶ 8. The trial court denied maintenance to Barbara. It found she was entitled to immediately receive $2,246 per month as her share of the retirement account for the rest of her life; she could earn $25,000 annually within three to six months, and she would have $3,000 annual income from her share of the property division excluding the retirement account. The court applied the shared-time formula of WIS. ADM. CODE § HSS 80.04(2)(c)² for equal time sharing to Barbara's monthly income of $4,579 and to Lowell's monthly income of $11,902, and set child support from Lowell to Barbara at $534 per month for six months, to allow Barbara to obtain employment at her earning capacity, and $416 per month thereafter.³

DISCUSSION

[1]

¶ 9. The division of the marital estate, the decision whether to award maintenance, and, if so, how much, and the amount of child support are all committed to the trial court's discretion. Sellers v. Sellers, 201 Wis. 2d 578, 585, 549 N.W.2d 481, 484 (Ct. App. 1996). We affirm a trial court's discretionary decision if the court makes a rational, reasoned decision and applies the correct legal standard to the facts of record. Id. We accept all findings of fact made by the trial court unless they are clearly erroneous. Section 805.17(2), STATS. Whether the trial court applied the correct legal standard is a question of law, which this court reviews de novo. Cook v. Cook, 208 Wis. 2d 166, 172, 560 N.W.2d 246, 249 (1997).

I. Property Division.

Use of Coverture Fraction in General.

[2, 3]

¶ 10. Barbara contends that in using a coverture fraction to divide the largest asset in the marital estate, the court improperly relied on the Wisconsin Marital Property Act, ch. 766, STATS. That chapter mandates the use of a coverture fraction to determine the marital property component of a deferred employment benefit attributable to employment of a spouse occurring while the spouse is married and partially before and partially after the determination date.⁴See § 766.62(2), STATS. It is well established, however, that the division of property upon divorce is not governed by ch. 766 but rather by ch. 767, STATS. See Kuhlman v. Kuhlman, 146 Wis. 2d 588, 591, 432 N.W.2d 295, 296 (Ct. App. 1988). With respect to the division of property on divorce, the only property that remains individual property and not subject to division is property acquired before or during the marriage by gift or inheritance, or funds acquired from either. See § 767.255(2)(a), STATS.⁵ All other property is part of the marital estate, and the court is to presume that it is to be divided equally, although the court may alter the distribution after considering various factors. See § 767.255(3).⁶ Therefore, while under ch. 766, a coverture fraction is applied to determine what portion of a pension is individual rather than marital property, under the divorce statute a spouse's entire interest in a pension—whether existing before the marriage or acquired during a marriage—is part of the marital estate subject to division in the divorce. See Steinke v. Steinke, 126 Wis. 2d 372, 380-81, 376 N.W.2d 839, 843-44 (1985). The increase in value of property brought to the marriage, including interest in a pension, is also part of the marital estate subject to division in divorce. See Arneson v. Arneson, 120 Wis. 2d 236, 246, 355 N.W.2d 16, 21 (Ct. App. 1984).

¶ 11. We do not agree with Barbara that the trial court relied on ch. 766, STATS., in employing a coverture fraction. The court expressly recognized that...