Spindler v. Spindler, 96-0591

• Decision Date: 04 December 1996
• Docket Number: No. 96-0591,96-0591
• Citation: 207 Wis.2d 327,558 N.W.2d 645
• Parties: In re the Marriage of Fredric P. SPINDLER, Joint-Petitioner-Respondent-Cross Appellant, v. Bonita B. SPINDLER, Joint-Petitioner-Appellant-Cross Respondent.
• Court: Wisconsin Court of Appeals

Page 645

558 N.W.2d 645

207 Wis.2d 327

In re the Marriage of Fredric P. SPINDLER Joint-Petitioner-Respondent-Cross Appellant, v. Bonita B. SPINDLER, Joint-Petitioner-Appellant-Cross Respondent.

No. 96-0591.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 11, 1996.

Opinion Released Dec. 4, 1996.

Opinion Filed Dec. 4, 1996.

On behalf of joint-petitioner-appellant-cross respondent, the cause was submitted on the briefs of Ann T. Bowe of Milwaukee.

On behalf of joint-petitioner-respondent-cross appellant, the cause was submitted on the briefs of Donald A. Levy of Cedarburg.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

ANDERSON, Presiding Judge.

Bonita B. Spindler appeals and Fredric P. Spindler cross-appeals from a judgment of divorce in which the trial court set Bonita's maintenance at $1020 per month for an indefinite period of time and it deemed property inherited by Fredric as marital property and divided it accordingly. Bonita contends that the trial court misused its discretion in ordering maintenance based on a 60/40 split of the joint income. In the alternative, Bonita argues that the $1020 is a mathematical error and the correct amount of maintenance should be $1120. Because the evidence supports the trial court's exercise of discretion and because the trial court sought a rough 60/40 split and $1020 achieved that goal, we affirm this portion of the judgment.

Fredric cross-appeals the inclusion of the Crandon cottage in the marital property division. The trial court determined that based on Bonita's contributions throughout the marriage, the character of the cottage changed from inherited to marital property. We conclude that Bonita's contributions, in the form of labor, were of de minimis value and were insufficient to change the character of the cottage. Accordingly, we reverse and remand this portion of the judgment.

BONITA'S APPEAL

Bonita contends that the trial court erred in its maintenance award by ordering a 60/40 split of the joint income rather than a 50/50 split. Maintenance determinations are within the sole discretion of the trial court and we will not reverse the trial court's decision unless there is evidence of an erroneous exercise of that discretion. Grace v. Grace, 195 Wis.2d 153, 157, 536 N.W.2d 109, 110 (Ct.App.1995). We conclude that the evidence supports the trial court's maintenance determination.

On October 22, 1993, Bonita and Fredric filed a joint petition for divorce. They had been married for twenty-seven and one-half years as of the date of divorce. Fredric is an electrical engineer with a company in Milwaukee and makes approximately $60,000 per year. Bonita is an interior designer with her own interior decorating business and makes approximately $12,000 per year. The family court commissioner, after hearings on November 16, 1993, and February 24, 1994, ordered Fredric to pay Bonita temporary maintenance in the amount of $1812 per month through May 1994. Fredric continued to pay this amount until the final judgment of divorce was rendered on January 19, 1996.

On January 24, 1995, a trial to the court was held. The issues before the court were the division of gifted or inherited property, maintenance, Bonita's earning capacity and personal property issues. In a decision and order dated June 30, 1995, the trial court found that Bonita's 1961 Corvette and Fredric's cottage lost their separate character and were included in the 50/50 property division of the marital estate. In regard to Bonita's earning capacity, the trial court relied on the testimony of Dr. Leslie Goldsmith, an expert in the field of vocational rehabilitation. Based on Goldsmith's testimony, the trial court determined that Bonita's "greater vocational prospects lie in the area of furniture sales/interior decorating ... [but] she has not pursued these positions with the degree of effort that would allow the court to simply accept her present income as the starting point for a division of income...." Accordingly, the court imputed $20,000 to Bonita as her annual income, or $1666 per month. The trial court further opined that Bonita has the capacity to substantially increase her income beyond $20,000 per year and based its 60/40 division of the parties' joint income on this finding. Based on Fredric's monthly income of $5300 and Bonita's imputed monthly income of $1666, the trial court ordered that Bonita be paid indefinite maintenance in the amount of $1020. The trial court's findings were embodied in the final judgment of divorce dated January 19, 1996, which Bonita appeals.

Our examination of the record satisfies us that the trial court's determination on this question is not a misuse of discretion. The 60/40 split was based on the trial court's conclusion that Bonita is capable of obtaining a full-time position which could increase her income beyond the $20,000 per year as imputed by the trial court. The trial court's rationale displays a reasonable exercise of discretion. Therefore, we affirm this portion of the judgment.

As an alternative argument, Bonita contends that the trial court's maintenance calculation of $1020 was incorrect and that $1120 is the correct figure. Maintenance decisions are left to the sole discretion of the trial court. Grace, 195 Wis.2d at 157, 536 N.W.2d at 110. At the rehearing on this issue, Bonita argued that there was a "mathematical misfiguring" and that $1120 would equalize the gross incomes. Fredric, on the other hand, pointed out that on a net after-tax basis, the court's order as uncorrected would result in a 58/42 split, or as corrected would result in a 56/44 split. "[I]n order to result in a 60/40 split of net after tax income in [Fredric's] favor, it requires a payment of $855 a month." The trial court explained its decision as follows:

[T]he problem ... with using the tax calc, ... is the assumptions that have to be plugged into it are so variable from case to case that you can't really hit it exactly. But my point in the decision was to achieve a rough 60/40 split. That's the only thing you can get in a case like this. You're not going to get a precise one because their tax situation could change from year to year, and you'd have to re-figure it every year and re-run the tax calc on it so I am exactly looking for a rough 60/40 split. And I will say that the original amount of 1,020 that I came up with was an arithmetic error. But in analyzing what's been submitted since then by both counsel, it seems to me that that number, although based upon a mistake, achieves the closest thing to a rough 60/40 split. And because of that, I'll direct that that number stand and that there be no modification. It's not going down to 855, it's not going to go up to 1120.

Based on the trial court's reasoning, we find no need to correct the error in calculation.

FREDRIC'S CROSS-APPEAL

On cross-appeal, Fredric contends that the trial court erred in its conclusion that the cottage changed character from inherited property to marital property and was subject to the property division. This issue is one of statutory construction of the property division statute, § 767.255, STATS., and its application to the controlling facts of this case which are essentially uncontested. Generally, property division rests within the sound discretion of the trial court. Brandt v. Brandt, 145 Wis.2d 394, 406, 427 N.W.2d 126, 130 (Ct.App.1988). However, the application of a statute to a set of facts is a question of law which we review de novo. Trattles v. Trattles, 126 Wis.2d 219, 223, 376 N.W.2d 379, 381 (Ct.App.1985).

In 1982, Fredric was gifted a cottage and parcel of land situated on Lake Lucerne in Crandon, Forest County. Fredric's grandfather built the cottage in 1922 and bequeathed it to Fredric's grandmother in 1930 when he passed away. She in turn left it to her five daughters, one of whom was Fredric's mother. In 1982, Fredric's two aunts held the remaining interests and gifted the cottage to him by deed. The title remains in Fredric's name.

Fredric testified that they have done no major improvements to the exterior of the cottage because the Forest County and Town of Lincoln zoning commission prohibits exterior improvements greater than $1000 to any cottage closer than seventy-five feet to a lake, which applies to Fredric's cottage. Even so, the roof was replaced in approximately 1992. According to Fredric's testimony, interior improvements included: Fredric and friends tiling the kitchen and dining area; painting the interior; installing a shower; installing a pump that draws lake water to a ten-gallon electric water heater; hooking the kitchen sink to the water heater and replacing a third of the porch flooring. The improvements were paid for with commingled funds. He stated that Bonita reupholstered some furniture, painted the middle bedroom and helped replace some screens. Fredric also testified that other than four pieces of living room furniture and certain accoutrements, the remaining furniture was inherited with the cottage.

Bonita corroborated Fredric's testimony regarding her contribution to the value of the cottage. According to Bonita's testimony, she assisted with the general upkeep, such as raking and burning leaves, helping to creosote the bridge, cleaning the kitchen area, washing the draperies, dusting the floors and occasionally pulling out the pier. Bonita also testified that she helped put in the vinyl flooring in the kitchen and dining room, put in custom-made draperies, purchased lawn furniture and painted.

The estimated value of the land in 1982, according to the tax bill, was $18,000 and the improvements were valued at $16,500. An assessment in 1993 reflected these same figures. In 1994 the property was reassessed, increasing the value of the land to $29,000 while the value of the improvements remained at $16,500, with a total estimated fair market value of $51,000. The parties stipulated that the reasonable fair market value of...