Rigsby v. Rigsby, 2014AP1546.
| Decision Date | 12 May 2015 |
| Docket Number | No. 2014AP1546.,2014AP1546. |
| Citation | 866 N.W.2d 405 (Table),364 Wis.2d 407 |
| Parties | In re the marriage of Ann M. RIGSBY, Petitioner–Appellant, v. Robert Raymond RIGSBY, Respondent–Respondent. |
| Court | Wisconsin Court of Appeals |
Ann Rigsby appeals a judgment of divorce. She argues the circuit court: (1) erroneously exercised its discretion with respect to multiple aspects of the property division; (2) improperly imputed income to her for purposes of calculating child support; (3) failed to impute sufficient income to her former husband, Robert Rigsby, for purposes of child support and maintenance; (4) improperly failed to award her maintenance; and (5) improperly failed to assign responsibility for certain debts. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
¶ 2 Ann and Robert began dating in 2002, while they were both United States Army captains stationed in Germany. Later that year, Ann and Robert accepted positions in Wisconsin, and Ann purchased a home in Lodi. They were married in June 2004. It was the second marriage for both parties. Ann completed her commitment to the army in September 2004, and the parties' first child was born three months later. Ann and Robert agreed that Ann would stay home and care for their child, rather than working outside the home.
¶ 3 In the spring of 2005, Robert received orders to report to Germany. While the family was stationed in Germany, Robert worked, and Ann took care of their child and home. Ann also managed the rental of the Lodi residence, handled household bills, and entertained Robert's colleagues. In 2006, Robert was deployed to Iraq for one year, while Ann and their child remained in Germany. In 2007 and 2009, Ann gave birth to two additional children. Ann also completed a master's degree in public administration while living in Germany, using Montgomery GI bill funds. Robert advanced in rank while stationed in Germany, ultimately achieving the rank of lieutenant colonel. He earned $90,387 in 2009, and $98,380 in 2010.
¶ 4 Since the beginning of the parties' relationship, Ann had made it clear that her dream was to open a campground or resort business. While in Germany, Ann completed a market analysis and business plan for a campground business in Wisconsin, with Robert's help, and she also constructed a website for the business. In March 2010, while Robert was on leave, the family returned to Wisconsin so that Ann and Robert could view potential sites for the campground. They selected a property to purchase in May 2010.
¶ 5 In June 2010, First National Bank approved Ann's business plan and granted her a $1.4 million loan to purchase the campground property. The bank subsequently granted Ann an additional loan of $100,000 for operating expenses and improvements. Ann also obtained financing from relatives. The family returned to Wisconsin in late July 2010 to close on the campground property. Robert then returned to Germany, while Ann and the children remained in Wisconsin, living in a cabin, and later a farmhouse, at the campground. The campground opened for business on Labor Day weekend of 2010.
¶ 6 Meanwhile, in Germany, Robert and his unit were preparing for deployment to Afghanistan. Ann's business plan for the campground relied on the income Robert would earn while deployed. However, at some point, Robert decided to return to Wisconsin and retire, rather than deploying with his unit. At the contested divorce hearing, Robert testified he informed Ann in August 2010 of his decision to retire. In contrast, Ann testified Robert did not tell her he was retiring until November 2010. Ann stated she was “shocked” by Robert's decision because the parties had previously agreed Robert would not retire until 2012.
¶ 7 Robert returned to Wisconsin permanently in December 2010. Following his retirement, he did some work around the campground and sometimes watched the parties' children, but he did not contribute as much as Ann thought he should. In addition, the parties began to argue frequently about the campground's finances. Ann ultimately filed for divorce on April 23, 2012.
¶ 8 A temporary order was entered on May 10, 2012. As relevant to this appeal, Robert was ordered to make payments on a mortgage and a line of credit loan on the Lodi home.
¶ 9 The parties subsequently reached an agreement regarding custody and placement of the children, which the circuit court approved. A contested hearing was then held on the issues of property division, maintenance, and child support. At the hearing, both parties submitted financial disclosure statements. Ann represented that her only income was a $1,000–per–month military disability payment. She claimed she did not earn any personal income from the campground because it was still operating at a loss. Robert represented that he received a military pension of $4,118 per month, and he also earned $720 per month as a part-time substitute teacher.
¶ 10 The parties also submitted property division proposals to the court. They agreed that the Lodi residence should be sold, and they also stipulated that the value of the campground was $1.8 million. However, they disagreed on many other issues. In particular, the parties disputed the amount of debt on the campground and the division of certain assets—specifically, guns, coins, a Sawyer County property Ann purchased before the marriage, and Robert's pension. In addition, Ann asserted the court should consider in the property division funds Robert withdrew from a Janus account shortly before Ann filed for divorce, as well as rental income from the Lodi property that Robert collected after the temporary order was entered.
¶ 11 After considering the evidence presented at the contested hearing, as well as posthearing briefs submitted by the parties, the circuit court entered a written decision on the disputed issues on January 6, 2014. With respect to the property division, the court ordered an unequal division of Robert's pension, with Ann receiving only 17.5% of each monthly payment. The court also divided several other assets unequally. Specifically, the court awarded the Sawyer County property solely to Ann and the guns solely to Robert. The court also awarded all but $300 of the coins to Robert.
¶ 12 The court then divided the parties' remaining assets equally, which resulted in an equalization payment of $41,026 from Ann to Robert. The court ordered Ann to make this payment within sixty days. However, the court gave Ann two additional options with respect to the equalization payment. First, although the court had ordered the Lodi residence to be sold and the proceeds divided between the parties, the court stated Ann could instead quitclaim her interest in the Lodi property to Robert and receive a $9,960 credit toward the equalization payment. Second, the court stated Ann could quitclaim her interest in the Sawyer County property to Robert and receive a $46,000 credit toward the equalization payment.
¶ 13 For purposes of calculating child support, the circuit court imputed income to both Ann and Robert. The court ultimately determined Robert would be required to pay Ann $393 per month in child support. The court did not award either party maintenance but did reserve maintenance as to Ann for three years.
¶ 14 Ann moved for reconsideration. As relevant to this appeal, and in addition to the arguments Ann had previously made in her posthearing brief, Ann argued the circuit court failed to consider the required statutory factors before unequally dividing Robert's pension, the Sawyer County property, and the guns and coins. She also asserted the court improperly relied on a flawed balance sheet, which was marked as Exhibit 10 at the contested hearing, when calculating the campground's debts. In addition, Ann argued the court erred by failing to address the Janus funds Robert withdrew shortly before the divorce petition was filed. Finally, Ann argued the court should have awarded her maintenance. The court denied Ann's reconsideration motion, following a hearing. This appeal follows.
¶ 15 Ann first argues the circuit court erroneously exercised its discretion by unequally dividing Robert's pension, the Sawyer County property, and the guns and coins. The division of property at divorce is committed to the circuit court's discretion. LeMere v. LeMere, 2003 WI 67, ¶ 13, 262 Wis.2d 426, 663 N.W.2d 789. We will uphold the circuit court's decision as long as it “ ‘examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.’ “ Id. (quoting Long v. Long, 196 Wis.2d 691, 695, 539 N.W.2d 462 (Ct.App.1995) ). If a circuit court “fails to adequately set forth its reasoning in reaching a discretionary decision, this court will search the record for reasons to sustain that decision.” Long, 196 Wis.2d at 698, 539 N.W.2d 462.
¶ 16 Wisconsin Stat. § 767.61 governs the division of property at divorce.1 First, the statute provides that certain property of the divorcing parties is not subject to division—specifically, property acquired by gift or by reason of another's death—unless refusal to divide the property will create a hardship on the other party or on the children of the marriage. Sec. 767.61(2). Next, the statute sets forth a presumption that all other property should be divided equally. Sec. 767.61(3). Nevertheless, a court may deviate from an equal division after considering the factors listed in § 767.61(3)(a)-(m).2
¶ 17 Wisconsin Stat. § 767.61(3) “explicitly requires that any deviation from the presumptive equal property division be based upon consideration of all the statutory factors.” LeMere, 262 Wis.2d 426, ¶ 24, 663 N.W.2d 789.3 However, a circuit court is not precluded “from giving one statutory factor greater weight than another, or from concluding that some factors may not be applicable at all.”...
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