In RE MARRIAGE OF HOKIN v. Hokin

DYKMAN, P.J.

¶ 35. (dissenting). In a thirty-six page decision, the trial court explained why it was *210making the property division, maintenance award and child-support payment decisions that it did. The majority identifies these decisions as discretionary. We have often said that we will not disturb discretionary determinations if the record shows that the trial court applied the proper law to the relevant facts and reached a conclusion that a reasonable judge could reach. See Sharon v. Sharon, 178 Wis. 2d 481, 488, 504 N.W.2d 415, 418 (Ct. App. 1993). The supreme court explained in Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16, 20 (1981):

A discretionary determination, to be sustained, must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law. Additionally, and most importantly, a discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination.

¶ 36. The majority reverses the trial court's property division determination. Why has it done so? Where was the trial court irrational or unreasonable, or where did it use inapplicable law? I will examine the majority's reasons for reversing the trial court to see if they require this result. First, however, I will consider an issue the parties have extensively briefed.

¶ 37. The parties attack and defend the trial court's use of a coverture fraction to determine Barbara's share of Lowell's pension. This debate focuses on the wrong issue. It is relatively unimportant how the trial court reached the figure of $400,300. The significant inquiry is whether that sum, together with other *211assets given to Barbara, is a fair property division. In other words, when a trial court varies from the presumptive equal property division of § 767.255(3), STATS., by considering the factors found in that section, are the trial court's reasons for deviating from that presumption rational and reasonable? Thus, although I agree with the majority that a trial court's use of a coverture fraction is permissible, I think its use is dangerous because doing so suggests that the result is automatically correct. In my view, a mathematical method which follows pre-marital contributions to the date of divorce will result in the parties knowing the percent of a pension attributable to pre-marriage contributions plus earnings on that sum. Then, using that information, the real question for the trial court is whether or how far to deviate from the presumptive equal division. In the case before us, I read the majority opinion as questioning the trial court's method and disagreeing with its result. But the majority is clear that it would have reversed regardless of the method used by the trial court to reach its property division. I therefore look to the majority's reasons for reversing to determine if that is the correct result.

¶ 38. The only factor the majority identifies which leads to its result is "the fact that Barbara did not work outside the home during the marriage and before the separation does not justify a deviation from the presumed 50/50 division." The majority also notes that returning Lowell's pre-marriage contributions to his retirement account plus contributions on that amount do not adequately recognize the length of the marriage, Barbara's contributions to it, or the 50/50 presumption.

¶ 39. This appears to be a new standard for reviewing a trial court's discretionary decision. It is *212long-established law that we are to look for reasons to sustain a trial court's discretionary decision. See Brandt v. Witzling, 98 Wis. 2d 613, 619, 297 N.W.2d 833, 836 (1980). Thus, we are to look at all the reasons a trial court gives for its decision before concluding whether those reasons constitute a proper exercise of discretion. What the majority has done is to look at one of the trial court's reasons, determine that the reason is wrong, and conclude that the property division must be changed upon remand. If this is a new standard of review, the legal problem is that it ignores all of the other reasons the trial court gave, and the other facts that it found. The factual problem with the majority's analysis is that the trial court did not do what the majority claims that it did. The latter issue first.

¶ 40. The trial court did not base its deviation from the 50/50 presumption on the fact that Barbara did not work outside the home during the sixteen years the parties were together. This is what the trial court found:

(g) This was a marriage of moderate length which began when Lowell was 53 years old and was already well established in his profession and career and when he already had acquired a modest estate. At the date of marriage, Barbara was 32 years old and had a college degree, but she had taken few steps to advance a career and had few worldly possessions.
During the marriage, Lowell provided virtually all financial support for the family, which initially included Barbara's child from a former marriage, and later included Ian. Barbara provided a clear preponderance of the homemaking and child-rearing services until the separation in 1994. Lowell chose to work and continues now to still do so, well beyond the usual age of retirement, and Barbara *213and Lowell have shared in the benefits of that choice while they resided together and Barbara will most certainly enjoy the sizable increase in the share of Lowell's retirement account that she is awarded by virtue of this judgment.
During the marriage, Lowell paid for Barbara to acquire substantial additional schooling, but she chose not to work, even when her child-rearing responsibilities did not interfere with her ability to do so. In particular, since the parties separated in 1994, Barbara's efforts to secure employment have been unreasonable and so minimal under the circumstances as to suggest that she was not serious in meeting her responsibility to attempt to become self-supporting. Barbara is in good health and is extremely bright and no good cause for her failure to employ these talents has been shown.

¶ 41. We have told trial courts that they should consider both economic and non-economic contributions to a marriage when crafting a property settlement. See Anstutz v. Anstutz, 112 Wis. 2d 10, 12, 331 N.W.2d 844, 846 (Ct. App. 1983); see also § 767.255(3)(d), Stats. A trial court should no more ignore the fact that one party has made no economic contributions to a marriage than it should ignore the fact that a party did make economic contributions to a marriage. Non-economic contributions are a valuable contribution to a marriage, but they are not necessarily more valuable or of equal value to economic contributions. Section 767.255(3) permits a trial court to alter the presumptive equal property division in a divorce action by considering a number of factors, most of which cannot be quantified. It is unfair and unwarranted to reverse a trial court for commenting on the economic considerations of a dissolving marriage when the legislature and our case law have required it to do *214so. By giving discretion to trial judges to decide property division, the legislature has recognized that not all judges will come to the same conclusion, nor place the same weight on the facts they find. Appellate courts are to search for reasons to affirm discretionary decisions, not for reasons to reverse.

¶ 42. The majority's belief that the choice not to work outside the home cannot be considered in a property division has uncertain consequences. Under § 767.255(3), Stats., property is presumed to be divided equally because marriage is a partnership. See Jasper v. Jasper, 107 Wis. 2d 59, 67, 318 N.W.2d 792, 796 (1982). In such a partnership, whether one spouse works outside the home while the other cares for the home and any children is irrelevant to a property division, because, though they do so in different ways, each makes a valuable contribution to the marriage. See Steinke v. Steinke, 126 Wis. 2d 372, 380-81, 376 N.W.2d 839, 843-44 (1985). However, because partnerships do not necessarily reward each partner regardless of their contributions, § 767.255(3) allows the trial court to deviate from the equal division presumption based on a number of factors. Under § 767.255(3)(d), for example, the trial court can consider "[t]he contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services." This subsection reflects the fact that one spouse, whether they work in the home, work outside the home, or do a combination of both, may actually contribute more to a marriage than the other spouse.1

*215¶ 43. In order to determine whether each spouse contributed equally to their partnership, a trial court must be able to assess whether the fact that one spouse does not work outside the home reflects positively or negatively on his or her contribution to the marriage. Assessing the extent of each spouse's contribution involves value judgments placed on an infinite possibility of factual scenarios.2 Trial courts should have discretion to consider the nature and extent of all contributions of either spouse to the marriage. Appellate courts should respect that discretion and not substitute their judgment for that of the trial court. See Zirngibl v. Zirngibl, 165 Wis. 2d 130, 135, 477 N.W.2d 637, 639 (Ct. App. 1991).

¶ 44. I believe that the proper appellate analysis is to consider all the factors which would permit a trial court to deviate from the presumptive division, not just one or two, and I will do so. I take the following facts from the record and the trial court's findings.

¶ 45. Barbara and Lowell were married in 1978. Both had been previously married and divorced. At the time of their marriage, Lowell had obtained M.D. and *216Ph.D. degrees. He was then a fully tenured professor at the University of Wisconsin and the chair of his department until 1993. Barbara contributed nothing to furthering, enhancing or facilitating Lowell's career. She was disinterested in helping to entertain Lowell's colleagues. Her disdain for them and for scientists in general caused Lowell to be unable to fulfill the usual duties of a department chair and a renowned scientist. She was unwilling to accompany Lowell to professional meetings out of town. The parties had one son, Ian, born in 1984. From then until the parties separated in 1994, Barbara was the primary child rearer, and she was the primary homemaker throughout the marriage, though Lowell spent considerable time with Ian and did a moderate amount of work around the house. Barbara would not do all of the housekeeping chores and Lowell would do those she would not. In addition, Lowell would take Ian to school, and he and Barbara would help Ian with his homework. In the four years of their separation, Barbara has done nothing to or around the house, except to plant some flowers and trim some bushes.

¶ 46. Lowell assisted Barbara in obtaining two advanced degrees' at the University of Wisconsin by financing them and other courses that she took.3 He assumed that she would work outside the home after *217receiving these degrees. Lowell contributed to the marriage nearly $75,000 of gifts he received from his parents, and he brought over $150,000 in property to the marriage. Barbara brought $2,500 in property to the marriage, and earned about $5,000 during the marriage. At the time of their divorce, Lowell was almost seventy-four years of age, and Barbara was almost fifty-three. Lowell could retire now, but dreads the thought of retirement. He agreed that he is described as someone who will "drop in the saddle." The trial court determined that Lowell had a life expectancy of ten years, and its best estimate was that Lowell would retire in September 2001 at age 77.

¶ 47. The trial court noted that the asset which so predominated in this case is Lowell's retirement account, which, as of the date of divorce, totaled $1,641,121, and constituted over eighty percent of the marital estate. The trial court considered the unique nature of this asset: it is an asset which has been and is totally unavailable to either party, but is also totally maintenance free. Neither party can receive the principal value of the account, but can only take an annuity which is paid for the lifetime of the party. The principal balance of the account has little meaning. The annuity has annual increases. Though the entire value of the account is a marital asset, Barbara was not married to Lowell and did not contribute to the asset for the first twenty-one years of its existence. More than one-half of its present value was brought to the marriage by Lowell. $75,000 of Lowell's gifted property and $87,000 of the property Lowell brought to the marriage will be divided equally. Barbara will receive $400,300 of the pension, which she can receive in monthly payments of *218$2,246 per month. She will also receive cash and other assets which bring her total property settlement to over $500,000. In addition, Lowell must pay one-half of the debts Barbara incurred after the separation and after a temporary order provided that she pay the debts. Virtually all of the income-producing assets are awarded to Barbara and those awarded to Lowell will probably have to be liquidated to pay Barbara her equalizing payment. This will leave Lowell with some of his pension, $162,000 of equity in a house, his cars and his sick-leave credit. He might never use his sick-leave credit, and it cannot be converted to cash.

¶ 48. The trial court explained its property division:

Without any doubt, Barbara made valuable contributions to the marital partnership through, her home making and child-care activities. She has, however, been adequately compensated for her contributions.
Now upon divorce, Barbara is being awarded a very generous property division that includes over $500,000 in net value, plus a one-half life interest in the ski chalet; the award of an asset from which she can derive $2,246 per month [plus increases] in income for the rest of her life; and the inclusion of virtually all of her debts in the calculation of the net marital estate even though many were incurred after the separation and after the cutoff date in the temporary order of January 23, 1995, thereby having Lowell paying even more to her support since the separation.
The size of the marital estate from which Barbara is deriving her share of the property division, including the marital portion of Lowell's retirement account, is a product of Lowell's efforts and in this case those efforts must be accorded even greater *219weight since his full-time work has continued many years beyond the age at which most people retire.

¶ 49. The trial court considered that Barbara did not contribute to Lowell's career or education. It noted that Lowell provided Barbara with substantial assistance in obtaining two advanced degrees.

¶ 50. The trial court considered all of the relevant factors in § 767.255(3), Stats. It is apparent from the transcript of the parties' testimony that the trial court saw more than we can about the value of the services each brought to the marriage. Perhaps the trial court discounted the value of Barbara's contribution to the marriage because it heard evidencé that Lowell earned 100% of the family's income and did twenty percent of the child care. Perhaps the trial court discounted the value of Barbara's child-rearing services because they were done for ten years rather than eighteen. Since the parties' separation, each shares those duties equally. If a trial court can value a spouse's contributions to the career of the other spouse, why can it not discount those contributions if the evidence shows that, instead of being helpful in that respect, the spouse contributed disappointment, trouble and embarrassment? Why cannot both financial and homemaking contributions be valued for what they are, and not as one size fits all? Why are sixteen years of services rendered worth more than $500,000? Why cannot a party's unfulfilled expectations about future employment for a newly educated partner be valued? Why cannot the trial court consider that Lowell, because of his dread of retirement, may never see a penny of his pension? In that case, Barbara will receive the overwhelming bulk of the marital estate.

¶ 51. I cannot say what property division I would have made had I sat as a trial judge in this divorce. But *220I am not willing to say that the trial court's decision and reasoning were either irrational or unreasonable, and that is the appellate test. How much more is necessary to transfer the irrational to the rational and the unreasonable to the reasonable? I understand what the trial court did and why it did it. I would accept the trial court's property division as within the proper exercise of its discretion.

CONCLUSION

¶ 52. Barbara has received nearly all of the parties' liquid assets, a life estate in a ski chalet, child support of $416 per month for the half-time Ian spends with her, increasing monthly payments of $2,246 per month for the next twelve years while she works outside her home, and in excess of $4,941 per month4 after that. The trial court concluded that this was "generous." Whether or not this is true, it is not irrational or unreasonable, and that is the appellate test.

¶ 53. A final note. It has been difficult to determine whether, in my view, the majority has substituted its judgment for that of the trial court, or whether it has set out new tests or rules it then applies to the trial court's property division. I have concluded, however, that except for the impact on the parties, there is no difference. If the former, though the parties are affected, there is no effect on other cases. If the latter, the same is true. If, for instance, the majority has adopted a rule that all contributions of both marriage partners are to be given equal weight, such a rule would not only amend § 767.255(3), STATS., but modify *221a number of our published cases which hold that the trial court is the ultimate arbiter of the weight to be given to items of evidence. See State v. Higginbotham, 110 Wis. 2d 393, 405, 329 N.W.2d 250, 256 (Ct. App. 1982). It would also modify Sellers v. Sellers, 201 Wis. 2d 578, 595, 549 N.W.2d 481, 487-88 (Ct. App. 1996) and other cases that hold that while "guidelines, rules and structure within which discretion should be exercised can be applied by appellate courts on review, the great burden of reaching a just and fair judgment rests on the trial judge."5 The supreme court has recently held that the court of appeals does not have the power to overrule, modify or withdraw language from a published opinion. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246, 256 (1997). A court's "power" is its ability to act on cases before it, and implicates the court's jurisdiction. See P.C. v. C.C., 161 Wis. 2d 277, 297, 468 N.W.2d 190, 198 (1991). If a court acts in excess of its jurisdiction, its act is void. See Kohler Co. v. DILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695, 701 (1977). Therefore, if the opinion in this case is intended to modify previous published holdings of this court, that modification is in excess of our jurisdiction and void..

Any number of possibilities arise. One spouse may work outside the home but earn little money and contribute nothing to caring for the house or the children, while the other spouse contributes an extensive amount of house and child-care duties. *215One spouse might work outside the home and contribute financially while the other spouse chooses not to work, and neither spouse may contribute to caring for the home. Both spouses might work at jobs with equal pay and time commitments, but only one takes care of the house and children. An example of an unequal property division because of unequal contributions to a marriage is Sellers v. Sellers, 201 Wis. 2d 578, 549 N.W.2d 481 (Ct. App. 1996).

In one marriage, a spouse may not work outside the home, but take care of 60% of the house and child-care responsibilities. In another marriage, a spouse may not work outside the home, but take care of 100% of the house and child-care duties, or 80%, or 40%. Must a 40% contribution to house and child-care duties be valued the same as a 100% contribution in all cases?

This factor is an example of the problem with the majority's new standard of review. The majority does not consider this factor as one of several reasons for deviating from the presumptive 50/50 property division. Yet, in Lundberg v. Lundberg, 107 Wis. 2d 1, 318 N.W.2d 918 (1982) and Haugan v. Haugan, 117 Wis. 2d 200, 343 N.W.2d 796 (1984), the supreme court concluded that one spouse's support for the other's education was a significant factor in a marriage, entitling the supporting spouse to compensation by way of property settlement or maintenance. *217The same is true for other legitimate factors the trial court considered.

This amount includes: $2,246 in monthly payments for Lowell's pension; $2,045 in social security payments; $400 for Barbara's own estimated pension payments; and $250 in monthly interest on the assets.

In many respects, Sellers v. Sellers, 201 Wis. 2d 578, 549 N.W.2d 481 (Ct. App. 1996), has much in common with the case we decide today. In Sellers, we affirmed a 75/25 property division, based in part on economic factors. Id. at 592-93, 549 N.W.2d at 487.