Saleh v. Saleh
| Decision Date | 24 June 1993 |
| Docket Number | No. 91-3005,91-3005 |
| Citation | 504 N.W.2d 873,178 Wis.2d 313 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In re the Marriage of Bahaa E.A. SALEH, Petitioner-Respondent-Cross-Appellant, v. Kenna Harless SALEH, Respondent-Appellant-Cross-Respondent. |
| Court | Wisconsin Court of Appeals |
Before GARTZKE, P.J., DYKMAN and SUNDBY, JJ.
Kenna Saleh appeals and Bahaa Saleh cross-appeals from a judgment of divorce. They raise several issues relating to maintenance, property division, attorney's fees, and the charging against Kenna of temporary maintenance, undisclosed assets, and costs for a trial continuance. We affirm on all issues except the charging of the costs of the continuance.
The parties were married in 1971 and separated informally in 1980. Bahaa petitioned for divorce in November 1990. On December 21, 1990, the family court commissioner ordered temporary monthly maintenance of $2,000 to Kenna starting January 1, 1991. Bahaa requested a hearing de novo, which was held in March 1991. The court reduced the maintenance to $1,500 starting March 1, 1991. The total temporary maintenance due through September 1991 was $14,500.
Following trial in August 1991, the court found that at the initial and de novo hearings Kenna had misrepresented her income, medical expenses, and expenses for training. The court found that the amount of the misrepresentation exceeded the temporary maintenance awarded. It concluded that the maintenance amounts, "being secured by non-disclosure and perjured testimony are held in constructive trust by her, pursuant to Sec. 767.27 and to the Court's authority to deny benefit to perjured testimony." The court counted the amount of this "trust" as part of assets awarded to Kenna in the property division. In other words, it counted the temporary maintenance paid to her as a marital asset in the property division.
Kenna argues that court-ordered temporary maintenance payments made before a judgment of divorce are not ordinarily considered a charge against the portion of the marital estate awarded to a spouse. Leighton v. Leighton, 81 Wis.2d 620, 632, 261 N.W.2d 457, 462 (1978). She argues that the court's findings with respect to her income and medical expenses are erroneous, and therefore the court erroneously exercised its discretion by charging the payments against her. We search the record to find support for the findings that were made, not others that were not made. Town of Mt. Pleasant v. Werlein, 119 Wis.2d 90, 95, 349 N.W.2d 102, 105 (Ct.App.1984).
The circuit court found that Kenna represented her gross monthly income as $1,335 before the commissioner and at the de novo hearing, but that it was actually approximately $2,000. The commissioner's temporary order states that Kenna's monthly gross income was "at most" $1,355. Kenna's financial disclosure form dated December 21, 1990, indicates a monthly gross income of $1,335. The transcript of the de novo hearing shows that Kenna testified that the amount shown on her disclosure form was correct at the time, but that her income had since gone down because of reduced hours.
Several pieces of evidence support the court's finding after trial that Kenna's gross monthly income was approximately $2,000. Her tax forms for 1990 and 1991 showed annual earnings of between $23,000 and $24,000. The manager of the department Kenna works in testified that she expected Kenna's total work time for the year would be approximately the same as in 1990, and that her total compensation would be approximately the same. The court stated that its conclusion that Kenna intentionally misrepresented her income was based in part on the court's credibility determination from observing Kenna. Evaluation of credibility is for the fact finder. Klein-Dickert Oshkosh, Inc. v. Frontier Mortgage Corp. 93 Wis.2d 660, 663, 287 N.W.2d 742, 743 (1980). We conclude that the court's findings with respect to Kenna's income and her misrepresentation of it are not clearly erroneous.
We next consider the court's finding that Kenna misrepresented her medical difficulties. The commissioner found that Kenna suffered significant medical problems and that temporary maintenance was appropriate on that basis. At the de novo hearing, Kenna testified that her medical problem is that she has very little jawbone remaining and has a constant infection there. This causes her mouth not to function properly, causes back pain, and impairs her ability to work as an English language instructor. She had not actually spent $1,500 monthly on medical expenses in 1989 and 1990 because she had foregone medical treatment for lack of money. The $1,500 she was requesting for medical expenses would be used to care for her jaw condition by seeing an oral surgeon, periodontist, chiropractor and physical therapist. She also had to pay "an enormous amount of money" for care that she does for herself, including "all the different kinds of medicines that I apply topically to maintain the condition or to stop the bleeding or to make the infected material rise up into the mouth so I can bring it out, cleansing agents, antibiotics, are all very expensive."
The court reduced the temporary maintenance by $500. The court noted several times that it did not believe adequate documentation had been provided for Kenna's claim that she required $1,500 per month for uninsured medical or dental expenses.
At trial, Kenna submitted minimal evidence of the need for services by the practitioners named above. She submitted a document she prepared showing the "prescribed medications" she uses and the monthly expense for them. The list includes approximately one hundred items. 1 The total monthly cost shown is $1,187. She also submitted another list she prepared titled "Health Care 1991." The two most expensive items on that list are "Brennan" for approximately $1,550, and "Healing Tao" for approximately $870. She testified that "Brennan" is a healer, astrophysicist and scientist, and that "Healing Tao" is a concept of healing the body with techniques that have been passed on from China.
The court found that Kenna produced no evidence of uninsured medical or dental expenses, and that the medical evidence indicated that her jaw problems could be resolved by bone graft surgery. In its oral decision, the court stated that
Kenna argues that the evidence shows that her condition has not responded to antibiotics and that the treatments she is pursuing are ones she has found to be helpful. She argues that the court's personal disagreement with her treatment plan could not be a basis for the court's finding that her testimony about her health care expenses was perjured.
With respect to Kenna's asserted need for traditional practitioners such as periodontists, we conclude that Kenna's inability or unwillingness to provide substantial evidence of the amounts she claimed supports the court's finding that she misrepresented her need for such services. Although Kenna argues that the nontraditional therapies are medically necessary, the evidence supports the finding to the contrary. Kenna's testimony at the de novo hearing leaves the impression that her medical expenses, other than those for the practitioners, were to pay for topical agents, cleansing agents and antibiotics. Perhaps this testimony was intended to refer to the nontraditional medications, but the court could also reasonably infer that it was crafted to obscure their nontraditional nature and avoid further inquiry. Such a misrepresentation by omission is a sufficient basis for the court's finding.
The circuit court also charged against Kenna money it found she held as assets, but which were not accounted for. The court found, by comparing Kenna's interest earnings in 1989 and 1990, that the amount in the savings account she disclosed in this litigation diminished by $32,615, and that she offered no evidence to account for this decline. The court found that Kenna still held the asset and had refused to disclose it. It concluded that Kenna held the asset in a constructive trust pursuant to sec. 767.275, Stats. 2
Kenna argues that sec. 767.275, Stats., does not apply because the evidence does not support a finding that the funds were in Kenna's control during the one year period before the filing of the divorce petition in November 1990. We disagree. Kenna does not dispute that she had control of the funds at some time in 1989. One reasonable inference is that she still retains them but has not accounted for them in this proceeding. If Kenna were able to establish that she spent the money more than one year before the filing of the petition, such an inference would not be reasonable. However, she does not offer an explanation for what happened to the funds. The court's finding was not clearly erroneous. Based on that finding the court could properly conclude under sec. 767.275, Stats., that they were "otherwise unaccounted for ... within one year prior to the filing of the petition."
The award of maintenance and division of property are discretionary. Bahr v. Bahr, 107 Wis.2d 72, 77, 318 N.W.2d 391, 395 (1982). To be sustained, a discretionary determination must be the result of a rational mental process where the facts of record and law relied upon are stated and considered together to achieve a reasoned and reasonable decision. In re De La Matter, 151 Wis.2d 576, 586, 445 N.W.2d 676, 680 (Ct.App.1989).
The circuit...
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