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COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 17, 1996 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1114-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
CORA SUE BRUCEK,
Petitioner-Appellant,
v.
CARL EDWARD BRUCEK,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Barron County:
FREDERICK A. HENDERSON, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Cora Sue Brucek appeals those parts of a divorce
judgment dividing the marital property, awarding maintenance and denying her
request for attorney fees.[1] She argues that the trial court failed to
adequately state its rationale for its decision on any of the disputed issues
in the divorce action. Carl Brucek
agrees that the property division and maintenance issues must be remanded for
the trial court to explain its decision, but argues that the attorney fee issue
was not properly raised in the trial court.
Cora argues that the decisions on property division and maintenance are
not supported by the record. Therefore,
she asks that this court require the trial court to modify its award rather
than merely explaining its decision. We
conclude that the attorney fee issue was properly before the trial court and
that the judgment should be reversed and the cause remanded on each of these
issues to allow the trial court, in its discretion, either to elaborate the
rationale for its decision or to change the decision. The court is also free to hear additional testimony on any issues
that it deems appropriate.
Following trial to the
court, the court asked the parties to submit briefs along with a proposed
judgment. The court decided the
contested issues by signing the findings of fact, conclusions of law and
judgment drafted by Carl. The only
change the trial court made was that it retyped page seven of the proffered
document where the issue of maintenance is addressed, briefly discussing Cora's
earning capacity, the uncertainty of Carl's bonuses and the amount of child
support he pays.
The parties contested
the valuation of assets and how the marital debts should be divided, the
exclusion of certain items claimed as gifts and whether potential taxes should
be subtracted from the value of some assets.
Except for the party's homes, the court did not set a value on each of
the assets. Without any explanation,
the court required a cash payment of $11,527 from Cora to Carl. The court rejected Cora's claim that some
property was exempt from division because it was gifted property, but it
provided no information regarding its analysis of that argument. Likewise, it accepted Carl's argument that
pre-retirement accounts should be discounted for future income taxes at a rate
of fifteen percent, although no testimony was presented on this issue. The court also apparently accepted Carl's
argument that some stock should be discounted in value by the amount he will
have to pay in taxes when he sells the stock, although no evidence was
presented on that issue and the court provided no explanation or description of
its thought process.
The court granted Carl a
credit for his reduction of the principal balance owed on a loan taken against
his 401K plan while this action was pending but, denied Cora a similar credit
for her reduction on the home mortgage loan during the divorce. The parties also disagreed on how to handle
debts incurred by each during the pendency of the divorce. Also, without explanation, the trial court
adopted Carl's argument that he should receive credit for his Best Buy account
incurred after commencement of the divorce action, but there should be no other
credit to either party.
Because the trial
court's decision does not reveal the mental process by which the decision was
made, the decision does not constitute a proper exercise of discretion and must
be reversed and remanded. See Hartung
v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981). The court may not make its findings by
merely adopting one party's position without explanation. Trieschmann v. Trieschmann,
178 Wis.2d 538, 541, 504 N.W.2d 433, 434 (Ct. App. 1993).
The issues relating to
maintenance and attorney fees were decided in the same manner. While the court retyped page seven of Carl's
proposed judgment, rewording the observations regarding Cora's earning
capacity, Carl's child support and insurance coverage, the court gave no
indication of how those findings factored into its final decision on the amount
of maintenance.
The trial court denied
Cora's request for attorney fees without explanation. Attorney fees were requested in the petition for divorce, and some
evidence was presented on that issue at trial.
Cora also requested attorney fees in her post-trial brief. We conclude that the issue was properly
before the trial court and that its failure to explain its rationale for
denying attorney fees constitutes an improper exercise of discretion.
By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.