In MATTER OF MARRIAGE OF SELLERS v. Sellers

CANE, P.J.

(dissenting). I dissent from that portion of the majority's opinion affirming the trial court's unequal division of the marital estate. Here, the trial court awarded Mr. Sellers $84,402 (twenty-five percent) and Mrs. Sellers $253,208 (seventy-five percent) of the net marital estate accumulated during the marriage. Mrs. Sellers brought $60,000 to the fourteen-year marriage and earned substantially more income than Mr. Sellers after he elected to work as a supervisor at the Christian Academy some seven years *596before the divorce. The trial court reasoned that because Mrs. Sellers contributed a greater share of the income to the marital estate, brought $60,000 to the marriage and performed a greater share of the child care, a departure from the equal division of the estate was justified. Given these facts, was it reasonable for the trial court to depart from the presumed fifty/fifty property division? Yes. However, do the facts justify such a gross disproportionate division of the estate? No.

The trial court unreasonably concluded Mr. Sellers' choice of a lower paying career justified departure from the presumed equal division of the estate accumulated during the marriage. Both Mr. and Mrs. Sellers made their career choices and contributed to the child care. This is not a case where a spouse shirked marital obligations or dissipated some of the marital assets, actions which justify denial of an equal share of the marital estate. Rather, it is simply a situation where one spouse had an opportunity to earn a substantially greater income and make a greater economic contribution to the couple's estate while allowing the other spouse an opportunity to elect a desired career choice. In this case, it is of significance that Mr. Sellers' decision to take a lower paying job occurred long before the couple was divorced. This reflects a family decision, made seven years before the divorce, to allow one spouse to pursue a new career. This court has not penalized the beneficiaries of such decisions in the past and should not do so in this case.

Such choices are not new to this court. In LaRocque v. LaRocque, 139 Wis. 2d 23, 406 N.W.2d 736 (1987), our supreme court held that although the wife elected to pursue a less lucrative career than she was trained for, she was nonetheless entitled to *597maintenance, as well as the equal property division award that was not appealed. Although LaRocque focused on maintenance, the underlying principle is the same: Except for cases involving unusual circumstances, both parties should expect to share equally the increased earnings or, as in this case, the accumulated property. Indeed, we have affirmed cases that followed the principles of LaRocque.

What is most disturbing about the majority's result is that it approves a property division that perpetuates a double standard. When a wife makes a choice to make less income and pursue interests either inside or outside the home, she is not penalized because she earns less than she could possibly earn. There is no doubt that many of our best teachers, social workers, clergy members and community volunteers could make more money working in factories or other higher-wage careers. Yet, we place a value on allowing people to make choices and to consider non-financial rewards: job satisfaction, personal development, benefit to the community and others. This case, however, puts men who elect to pursue lesser paying jobs in a difficult position: it suggests that where a man, the traditional breadwinner, elects to pursue a less lucrative career for non-financial reasons, he can be unfairly penalized if he gets divorced.

Even the majority expresses a concern that the trial court's result may have been different if the gender of the parties had been reversed. I not only express the same concern, but contend that had the genders been reversed, we would not even hesitate to reverse the property division as an erroneous exercise of discretion.

It is difficult to accept the majority's logic in this case when one considers how this court would react if *598the facts were slightly different. For example, if a wife was disabled during the marriage and was therefore unable to contribute economically to the marriage or to care for the children, the wife's bottom line contribution to the marriage would be the same as Mr. Sellers': she would have contributed less income and time to the family than her husband. Yet, it is hard to imagine we would permit a trial court to award seventy-five percent of the marital estate to the husband simply because he contributed more earnings and child care to the marriage. What underlies the difference in this case is the presumption that there is something inherently wrong with a spouse electing to pursue a less lucrative career. For the reasons discussed above, this policy is not only dangerous, it is not applied equally to men and women.

It is also hard to believe that the same divorce statute that forbids trial courts from considering marital misconduct when considering whether to alter the equal property division, see § 767.255(3), Stats., would condone a seventy-five/twenty-five percent property division that severely penalizes a husband who, seven years before the divorce, elects to take a less lucrative job by pursuing a career at a Christian school.

In addition to considering Mr. Sellers' pursuit of a less lucrative career, the trial court considered the parties' participation in child care. The parties disagreed about how much time each parent spent with the children. Although the trial court found that Mrs. Sellers provided a greater share of the child care and therefore considered it as an additional factor for departing from an equal property division, the fact that the court ordered equal child placement reflects Mr. Sellers' past contribution to the child care. Therefore, I believe it was improper for the trial court, or the *599majority in this opinion, to emphasize this factor for such a substantial departure from an equal property division. Additionally, although Mrs. Sellers contributed $60,000 from money brought into the marriage for construction of their home, this fact does not justify awarding her approximately $175,000 more of the marital property.

I would conclude that awarding Mrs. Sellers seventy-five percent of the marital property under these facts was an erroneous exercise of discretion and would remand the matter for reconsideration of property division.