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COURT OF APPEALS DECISION DATED AND RELEASED February 25, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 96-2201-FT
96-3045-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
In re the Marriage of:
JENNIFER LOUISE
KUNERT,
n/k/a JENNIFER LOUISE
CARLSON,
Petitioner-Appellant,
v.
LYLE HERMAN KUNERT,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Douglas County:
JOSEPH A. McDONALD, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Jennifer Carlson appeals a judgment of
divorce.[1] She challenges the trial court's (1)
decision to award primary physical placement of the parties' two children to
her former husband, Lyle Kunert; (2) division of insurance proceeds
representing household goods and furnishings lost in a fire; and (3) denial of
any maintenance. Because the record
supports the trial court's exercise of discretion, we affirm the judgment.[2]
The issues of custody,
maintenance and property division are addressed to trial court discretion. Bahr v. Bahr, 107 Wis.2d 72,
77, 318 N.W.2d 391, 395 (1982); Hollister v. Hollister, 173
Wis.2d 413, 416, 496 N.W.2d 642, 643 (Ct. App. 1992). We will not reverse a discretionary decision if the record
discloses that discretion was in fact exercised and we can perceive a
reasonable basis for the decision. Prahl
v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct. App.
1987). The term "discretion"
contemplates a process of reasoning which depends on facts that are in the
record or reasonably derived by inference from the record and yields a
conclusion based on logic and founded on proper legal standards. Hartung v. Hartung, 102 Wis.2d
58, 66, 306 N.W.2d 16, 20-21 (1981).
Generally, we will look for reasons to sustain a discretionary
determination. Prahl, 142
Wis.2d at 667, 420 N.W.2d at 376.
Underlying discretionary
decisions may be factual determinations.
Hollister, 173 Wis.2d at 416, 496 N.W.2d at 643. A trial court's findings of fact will not be
upset unless they are clearly erroneous.
Section 805.17(2), Stats. The trial court is the arbiter of the
credibility of witnesses, and its assessment of weight and credibility will not
be overturned on appeal unless they are inherently or patently incredible or in
conflict with the uniform course of nature or with fully established or
conceded facts. See Chapman
v. State, 69 Wis.2d 581, 583-84, 230 N.W.2d 824, 825 (1975).
1.
Facts
Jennifer was born on
October 16, 1967, and completed twelve years of school. Lyle was born on April 17, 1964, and also
completed twelve years of school. The
parties' oldest child, a son, was born in 1985, while Jennifer was still in
high school. The parties were not
married, and Lyle had primary physical placement from the time the child was
five months to two years. In 1987,
their second child, a daughter, was born.
The parties married in 1988.
In 1993, the parties
separated and in November of 1994 this divorce action was started. At the time of the divorce, Jennifer worked
at McDonald's and worked part-time as a bookkeeper. She also was a certified nurse's assistant, but not employed in
that capacity. The trial court
determined that she earned $400 per month.
Lyle works as a machinist at his father's company earning $32,000 per
year.
Both parties testified
that during the marriage there was a lot of fighting. Jennifer testified that Lyle pushed her around and struck her,
and she and the children spent time in a shelter. Lyle testified the event that precipitated the divorce was that
Jennifer "pulled a gun on me," and in the struggle to get the gun
away from her, he pushed her through a wall.[3] Lyle testified this incident was "a
drinking incident." He testified
one night he woke up and Jennifer "had a telephone cord wrapped around my
neck."
Lyle testified that he
did most of the cooking for the children and the disciplining. He testified that when he and the children
would do activities together, like woodcutting, Jennifer did not want to come
along. He testified that during the
marriage Jennifer drank about a quart of alcohol every two to three days.
In response to a question
regarding her present use of alcoholic beverages, Jennifer testified that
"[o]nce in a while when I go out for dinner, I'll have one or two fuzzy
navels, every two, three months, four months.
And once in a while on a weekend when sitting at home with Kenny, I'll
have a wine cooler, or its only like two, three ounces of alcohol, and then I
drink my Mountain Dew." She
testified that although she smoked marijuana and used "speed" for
"maybe two months" in high school, she saw a drug counselor, and her
alcohol consumption is under control.
Lyle testified that he
picked up his daughter and son at noon on Christmas Day. His son was crying, said his neck was sore,
was holding his neck and it was red.
Lyle was on his way to his mother's who lived five to ten minutes
away. Lyle's mother testified that when
they arrived at her home, her grandson was upset and crying, and she asked,
"What's wrong"? Her grandson
answered, "My neck hurts."
She testified that the boy said "Kenny did it to me." She testified that she took a picture of his
neck because there appeared to be bruising and an abrasion. She knew it was not a candy stain because
she tried to wipe it off. Lyle reported
the incident to the police.
A social worker for
Douglas County testified that on December 28, 1995, she received a referral
regarding the bruising of the boy's neck.
On January 12, 1996, she and a sheriff's department officer went to see
the boy at his school and he said that the marks were left by a candy necklace
and that his dad told him to say Kenny did it.
His sister said that his dad bought candy necklaces for them, and when
it left marks, "dad told us to say that Kenny did it." Kenny Yadon is Jennifer's fiance, with whom
she shares her residence. The social
worker did not interview the boy's father, mother or Yadon. She did not look at the photograph of the
alleged injury. She concluded the
allegations of abuse were unsubstantiated.
Lyle's mother testified
that she sees the children approximately once a week and has lunch with them or
takes them shopping with her. Lyle's
father testified that he has spent a lot of time with the children in outdoor
activities, teaching the boy to hunt and fish.
He helped with school work occasionally and they write out the grocery
list together. His wife teaches the
girl sewing and crafts. As his son's
employer, he testified that "the kids come first" and that he would
be flexible with his son's work schedule.
He testified that on two or three occasions "the kids would be out
on the beach, and she'd be in the cabin, and she had been drinking or
something, and all the curtains would be closed and the kids would be out at
the end of the dock, and there—it's six feet of water out there and ... neither
one could swim, and my dad ... has a house next to there, and my dad would have
... to come out and watch the kids for hours on end."
Raymone Kral, a clinical
psychologist and family therapist testified that she met with the children a
total of eight times and met with the parents two times. Conflicting testimony was admitted concerning
Lyle's office visits. She believed the
children were afraid of Lyle. Lyle
testified that the children were afraid of therapy with her. Kral testified that it was her opinion that
it would probably be in the children's best interest to live with their mother
because they have a real fear of their father.
The court determined
that both parents were fit and proper persons to have placement of the children
and awarded joint custody with primary physical placement with Lyle. The trial court's reasons include: (1) concern of abuse to the boy by
Jennifer's fiance; (2) a strong extended family on Lyle's side who pitched in
and helped with the children; and (3) concern with Jennifer's health as
evidenced by past history of alcohol abuse, the testimony regarding fighting
and her possession of the gun.
The trial court denied
maintenance to both parties. For a
property division, it awarded Jennifer $1,500 representing her share of the
household goods and furnishings lost in the fire. The balance of the insurance proceeds were awarded to Lyle. Jennifer appeals.
2.
Physical Placement
Section 767.24, Stats., sets forth factors for the
trial court to consider in custody and physical placement determinations. The numerous factors include: the wishes of the child and parents; the
child's interaction and relationships with parents, siblings, and other persons
who may significantly affect the child's best interests; the child's adjustment
to home, school, religion and community; the mental and physical health of the
parties, the children and others in the proposed custodial household; evidence
of abuse of the child; evidence of domestic abuse; problems with alcohol or
drug abuse; and such other factors as the court deems relevant. Section 767.24(5), Stats.
Jennifer contends that
the trial court erred because it failed to consider the following statutory
sections:
A. Section 767.24(5), Stats.
This section provides
that the court shall consider the reports of appropriate professionals if
admitted into evidence. The trial court
specifically referred to a clinical psychologist's testimony in its
opinion. The court stated that it
considered all the reports and "the recommendation of the guardian ad
litem and everybody else's recommendations." The trial court was not required to accept the opinions of the
psychologists or the guardian ad litem.
See Hollister, 173 Wis.2d at 417-18, 496 N.W.2d at
644. Because the trial court considered
the professionals' and experts' opinions, it complied with § 767.24(5), Stats.
B. Section 767.24(5)(i), Stats.
This section provides
that the court shall consider evidence of domestic abuse. Although the court did not make specific
findings with respect to each of the alleged incidents, its general reference
that "the parties have been something" with each other for a long
period of time reflects the evidence of long standing domestic violence
throughout the duration of the relationship on both sides. The record reflects that the trial court
considered the evidence of domestic abuse.
C. Section 767.24(5)(d), Stats.
This section provides
that the court shall consider the children's adjustment to school. The trial court noted that it was undisputed
that the children needed extra individual attention with respect to
school. The court noted Lyle's
testimony that he was cut out of some of the school communications when the
children went to a new school and was not as responsive as he might have
been. However, the court relied on
testimony that Lyle and his parents help with school work as best they
can. In order to minimize disruption
with respect to schoolwork, the court ordered that the transfer of physical
placement to Lyle not take place until after the school year ended. The record reflects the court considered
adjustment to school.
D. Other factors
Next, Jennifer argues
that the trial court erroneously failed to consider numerous other factors,
such as the wishes of the children, the wishes of the parents, the children's
relationship with the parents, the children's adjustment to the home, school,
religion, and community or the availability of child care services. We disagree. When taken in context of the evidentiary record, the court's
decision shows that these factors were not pivotal in its decision making
process. For example, because each
parent wanted primary physical placement, it was unnecessary for the court to
discuss this factor. Also, it was the
trial court's prerogative not to heavily way the children's wishes, who were
ages ten and eight. Although the
daughter expressed a preference to live with her mother, Jennifer testified
that half the time her son wishes to be with her and half the time he wishes to
be with Lyle. The custody investigation
indicated in would be in the children's best interests to stay together.
There was no evidence
that adjustment to community or religion was a material factor. The court discussed adjustment to school and
that Lyle's strong extended family helped with child care. The record does not support Jennifer's claim
of error.
E. Section 767.24(6)(a), Stats.
This section provides
that if legal custody or physical placement is contested, "the court shall
state in writing why its findings relating to legal custody or physical
placement are in the best interest of the child." Id. Here, the trial court delivered its decision from the bench. Its written judgement incorporated by
reference the transcript of the oral decision.
The court's oral findings were stated in a general fashion, requiring
this court to go to the record for specific facts. Despite the lack of specific factual findings, the record
discloses that the court exercised its discretion. The court could conclude that physical placement with Lyle
presents a more stable environment. The
threat of abuse, the assistance of Lyle's extended family and the concern of
alcohol abuse were facts the court could have found from the evidence, even
though the issues were contested and contrary findings could have been
made. These factual findings
demonstrate a reasonable basis for the court's discretionary
determination. As a result, the trial
court did not commit reversible error.
Next,
Jennifer argues that the trial court's findings of fact are erroneous. She contends that the evidence does not
support the finding of child abuse by her fiance. She argues that the court erroneously found that the department
"botched" its investigation and the court admitted that it had never
seen a candy necklace, so it wouldn't know if the marks in the photo exhibit
were inconsistent with candy necklace stains.
We reject this argument.
The assessment of weight
and credibility of testimony is a trial court, not appellate court
function. Estate of Wolff v. Town
Board, 156 Wis.2d 588, 598, 457 N.W.2d 510, 513-14 (Ct. App.
1990). The trial court was entitled to
find that Lyle's mother's observations were entitled to more weight than the
social worker's investigation, which involved only interviews of the children at
school two weeks after the incident.
The trial court was entitled to give little weight to the
investigation.
Jennifer also argues
that the trial court erroneously attributed little weight to the testimony of
the clinical psychologist, Kral. We disagree. The trial court was entitled to conclude
that her opinions, derived from office interviews in a clinical setting, did
not fully reflect the numerous factors to be considered in assessing the
children's best interests.
Next, Jennifer argues
that the trial court failed to consider Jennifer's uncontradicted role as
primary care giver. We disagree. Lyle's testimony refuted that Jennifer was
the primary care giver throughout the children's lives. Although Jennifer argues that she closely
supervises the children with respect to school work. On the other hand, the grandparents' testimony suggested that at
times Jennifer's supervision of the children was less than optimal. It is the trial court's function to resolve
conflicting testimony and competing inferences. See id. at 598, 457 N.W.2d at 513. Appellate courts search the record for
evidence to support the findings that the trial court made, not for findings
that the trial court could have but did not make. Estate of Becker, 76 Wis.2d 336, 347, 251 N.W.2d
431, 435 (1977).
Jennifer points to
evidence that Lyle did not know the names of all the children's teachers, and
erroneously stated that his son was twelve when in fact he was ten years of
age. She contends that the court failed
to appropriately weigh the opinions of experts. While we may have accorded different weight to the testimony, and
reached a different result were we the trial court, our review of a
discretionary determination must be with deference and a recognition that
reasonable people could disagree. Based
upon the trial court's findings of fact, there exists a reasonable basis for
the court's decision to award physical placement to Lyle. Upon review of the record, we are satisfied
that the trial court weighed appropriate factors and that the record discloses
a reasonable basis for the exercise of its discretion.
3. Property division.
Next, we reject
Jennifer's argument that the trial court erroneously exercised its discretion
with respect to property division. Lyle
testified that when Jennifer moved from the home, he told her could take the
personal property she wanted from the house.
He testified that she claimed to have removed all the property that she
wanted, except some yarn, a desk and a chair in the basement. He testified that she took the living room
furniture, kitchen dishes and other items, sheets, towels, pictures, and
wedding gifts.
After the parties
divided the personal property in this way, Lyle testified that he had to
refurnish the house. He purchased new
furnishings, including a couch, tables, chair, lamps, dressers, bedding, a
television and children's clothing.
After that time, the house burned.
Insurance proceeds of $18,672, representing household goods and
furnishings, was paid into court in escrow pending the trial court's decision.
Jennifer testified that
at her deposition she stated that she had taken everything out of the house
that she felt was hers and that she had left only three things that she felt
she was entitled to. At trial, however,
she testified that she was entitled to marital property in the home at the time
of the fire.
In its oral decision,
the trial court observed the "very little testimony or evidence" to
go on, and awarded all but $1,500 of the insurance proceeds to Lyle, stating:
She
is entitled as her division of property to be awarded $1,500 out of the
property dispute, because I have no way of valuating what she has. His testimony was that most of it was his,
that he purchased after the separation.
And the loss is certainly all of his.
Section 767.255(1), Stats., presumes an equal property
division, but the trial court may alter the distribution based on other factors
the court deems to be relevant. Here,
the fire that destroyed the personal property occurred after the parties
separated and Jennifer had removed a share of the household furnishings. Lyle replaced the items she removed, and
then lost them in the fire. Although
the property owned by the parties is all marital property, the trial court
concluded that Jennifer was not entitled to one-half of the insurance proceeds
because she had removed a share of the marital property before the fire. We conclude that the trial court's decision
has a reasonable basis in the record and do not disturb it on appeal.
Jennifer also argues
that the trial court originally divided the insurance proceeds equally and
later modified this division. She
contends that Lyle's post-judgment motion to modify the judgment to obtain an
unequal division was untimely because it was more than twenty days after the
filing of the judgment. See §
805.17(3), Stats. Because the record does not support her
argument, we reject it.
The record discloses
that the trial court orally delivered its opinion from the bench and that Jennifer's
attorney drafted a judgment that did not reflect the court's oral
pronouncement. The court signed the
judgment on June 19, 1996. Lyle's
counsel had not approved of the judgment as to form. On June 25, 1996, Lyle's counsel wrote a letter to the court
objecting to the form of the judgment.
Because the letter was filed within twenty days of the judgment, it was
timely within Section 805.17(3), Stats.
Jennifer argues that the
trial court committed an error of law when it construed the letter as a
motion. We disagree. Here, the nature of the letter was
sufficiently clear in regard to the nature of the relief sought. The trial court was entitled to apply a
liberal construction to pleadings.
Sections 801.01(2) and 802.02(6),
Stats.
3. Maintenance determination.
Jennifer
argues that the trial court failed to exercise its discretion with respect to
maintenance. Jennifer argues that the
trial court failed to consider her financial situation. See Overson v. Overson,
125 Wis.2d 13, 18, 370 N.W.2d 796, 798 (Ct. App. 1985). Nonetheless, she fails to explain what that
financial situation is and does not cite any record reference demonstrating her
need for maintenance.
This was an eight-year
marriage. Lyle earns $32,000 per
year. Jennifer earns $400 per month
working at McDonald's and as a bookkeeper.
She also is a certified nurse's assistant. She testified that she shares her residence with Kenneth Yadon,
to whom she is engaged, and that he is an over the road truck driver who earns
an average of $50,000 per year.
The trial court observed
that the parties separated several times during the marriage. The court denied Jennifer maintenance,
stating that in view of her engagement and little in the way of contribution to
the marriage, an award of maintenance "just doesn't make sense." See §§ 767.26(1), (6) and (9), Stats.
The record supports the
trial court's maintenance decision despite the parties' disparate earning
capacities. The trial court could
reasonably conclude that due to the length of the marriage, the contributions
of each party and the paucity of information concerning Jennifer's need for
maintenance, none is required. Although
the trial court did not specifically articulate its reasons for considering
Jennifer's engagement, the record permits the reasonable inference that
Jennifer's living expenses would be reduced because she is sharing her
residence with her fiance. See Vier
v. Vier, 62 Wis.2d 636, 639-40, 215 N.W.2d 432, 433-34 (1974) (We look
to the record for reasons to support the trial court's discretionary
decision.). We conclude the record
supports the trial court's denial of maintenance.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[2] The guardian ad litem also filed a brief, arguing that the trial court's findings of fact are erroneous and that the court did not reasonably exercise its discretion. Because the guardian ad litem's concerns were similar to Jennifer's, our opinion responds to the guardian ad litem's issues as well.