Elizabeth Anne Fitzgibbon v. Adam Paul Fitzgibbon

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 29, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP611 Cir. Ct. No. 2021FA564

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN RE THE MARRIAGE OF:

ELIZABETH ANNE FITZGIBBON,

PETITIONER-APPELLANT,

V.

ADAM PAUL FITZGIBBON,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Winnebago County:
BRYAN D. KEBERLEIN, Judge. Affirmed.

Before Neubauer, Grogan and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP611

¶1 PER CURIAM. Elizabeth Anne Fitzgibbon appeals from an order
of the circuit court denying relief from a judgment of divorce and ordering certain
changes to the parties’ marital settlement agreement. Based upon our review of
the briefs and Record, we conclude at conference that this case is appropriate for
summary disposition. See WIS. STAT. RULE 809.21 (2021-22).1 For the following
reasons, we affirm.

Background

¶2 Elizabeth filed for divorce from Adam Paul Fitzgibbon in
September 2021 after approximately eight years of marriage. Elizabeth and Adam
share one minor child. According to the original marital settlement agreement
(Original MSA) that they signed in December 2021 and filed (albeit with two
missing pages) on January 21, 2022, Elizabeth and Adam agreed to joint custody
of their child with “Elizabeth having approximately 60% of the overnights and
Adam having approximately 40% of the overnights” (“60/40 child placement”).
The Original MSA also reflects an agreed division of certain marital property and
accounts, including “Etrade and Voya accounts” (which were to be awarded to
Elizabeth) and a payment of $54,406 from Adam to Elizabeth “to equalize the
marital property division.”

¶3 In her initial brief to this court, Elizabeth asserts that she “realized
how inequitable the Original MSA was” shortly after filing it with the circuit
court, so she “requested updating it with Adam.” Adam agreed to renegotiate the
Original MSA. Elizabeth and Adam used an updated draft prepared by

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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Elizabeth’s attorney—the “Amended MSA”—as a starting point. The Amended
MSA again provided for 60/40 child placement and for Elizabeth’s ownership of
the Etrade and Voya accounts. It also provided for monthly child support
payments of $7652 and an increased equalization payment of $77,000,3 both from
Adam to Elizabeth. Elizabeth and Adam made handwritten edits to the Amended
MSA, reaching a final agreement on January 28, 2022. They both signed this
“Hand-Edited Amended MSA,” and Elizabeth delivered it, along with three
photocopies, to the court for filing; neither party, however, prudently kept a copy
for their own records.

¶4 The parties attended their stipulated divorce hearing before a family
court commissioner on February 7, 2022. The commissioner referred to the
parties’ MSA “approved by the Court on January 21, ’22” and confirmed that each
party agreed to 60/40 child placement, $765 monthly child support payments from
Adam to Elizabeth, and waiver of spousal support. Each party also testified that
the agreement reflected “approximately equal” property division. After this
testimony, the commissioner found the marriage “irretrievably broken” and
granted a divorce—incorporating the “fair and reasonable” MSA into the
judgment—which was “final” as of the hearing date (February 7, 2022).

¶5 The next month, Adam told Elizabeth that he had received the wrong
MSA from the circuit court. She had not received the Hand-Edited Amended

2
The provision for child support payments was on one of the missing pages of the
court-filed Original MSA, but the parties later testified that the missing pages three and four from
the Original MSA were identical to typed pages three and four of the Amended MSA; the same
child support payment was included in the Original MSA.

The listed values of the Fitzgibbons’ two pieces of real estate had been increased in the
3

Amended MSA.

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No. 2023AP611

MSA either, and it became clear to both parties that the commissioner had
incorporated the Original MSA into their judgment of divorce rather than the
Hand-Edited Amended MSA. The Hand-Edited Amended MSA had somehow
been lost by the clerk of courts’ office or the family court commissioner.4 When
the Fitzgibbons brought this to the court’s attention, they were ordered to
“reconfigure” the Hand-Edited Amended MSA within ten days of the April 26,
2022 hearing on the matter.

¶6 Adam and Elizabeth did not re-create the Hand-Edited Amended
MSA through the rest of 2022. By that point, they had each filed multiple
motions, including Adam’s motion for “50/50” child placement and reduced child
support and Elizabeth’s motion to, among other things, reopen the judgment of
divorce and declare the marital settlement agreement void. In response to the
latter motion, Adam sought to enforce the Original MSA, arguing that it was a
“complete agreement” and that the issue of the two missing pages would be
resolved by issuing a subpoena to Elizabeth’s former attorney for production of
the full agreement. Elizabeth stated that she could not remember the terms of the
Hand-Edited Amended MSA, which she now deemed “more financially
inequitable than [she] had believed it to be on January 28,” and—though she
“regard[ed] [her]self as divorced”—attempted multiple times to come up with a
new deal that would be, in her view, more equitable. While she wanted to
preserve the 60/40 child placement and “child support numbers that [the family

4
As noted above, the Original MSA (filed on January 21, 2022) had two missing pages.
The Record does not reflect who was responsible for that error. But the circuit court made the
determination that the responsibility for the loss of the Hand-Edited Amended MSA and three
photocopies thereof (also filed in January 2022) rested with the clerk of courts or the family court
commissioner’s office, which is regrettable and has led to over a year of litigation and the
expenditure of significant judicial resources.

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No. 2023AP611

court commissioner] validated” when she and Adam “were divorced … on
February 7,” she took issue with the diminishing value of the accounts that were to
be awarded to her and with the fact that many of the Fitzgibbons’ assets were not
listed in any previous MSA.5 She sought a “cash settlement baselined to the asset
valuations on February 7” with a “compensatory amount … for Adam’s … past-
due child support … and financial malfeasance.”

¶7 At a hearing on January 26, 2023, the circuit court reviewed the
procedural history of the case, and both Adam and Elizabeth confirmed the facts
set forth above regarding what had happened with the various versions of their
MSA. Based primarily on its review of the transcript from the February 7 divorce
hearing, the court held unequivocally that there was a “meeting of the minds” as to
the stipulated terms of divorce and a valid judgment of divorce issued on that date.
Therefore, according to the court, the question to be answered at this hearing was
not whether there was an agreement but what, exactly, the agreement was. Noting
the “multitude of motions” and “hundreds of documents” already filed by the
parties, the court “anticipate[d] … more litigation coming out of the case” but
stressed that it was necessary to determine, as a factual matter, “what the original
agreement was.” The court pointed out that it could not begin to assess the
fairness of an agreement, for example, without determining the terms of the
agreement—and that any question regarding misrepresentation, fraud, duress, or
the like in the context of the property division would be “a separate motion.”
Ultimately, the court stated, “[T]his is not a family issue right now; this is a

5
These were the assets sometimes characterized as the “basement assets” of the parties,
consisting of an “extensive weapons collection, tools, machinery, a safes [sic] full of precious
metals and cash, food processing and canning equipment, and perishable foodstuffs among other
items.”

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No. 2023AP611

contract issue,” and all the court needed to determine at this stage was “what did
they agree to in February.”

¶8 The circuit court then employed a procedure to determine the terms
of the Hand-Edited Amended MSA to which Adam and Elizabeth agreed on
February 7, 2022. Without objection from either party, and as the parties had
done, the court used the Amended MSA as a starting point, giving each party a
copy of that document and asking them to separately write in the changes they
believed were made to that document with handwritten edits on January 28, 2022.
After comparing the parties’ notations, the court asked further questions and made
“credibility determinations” to re-create the agreement reached by the parties
immediately before the February 7 divorce hearing.

¶9 Adam testified to his belief that he and Elizabeth had agreed to a
handwritten edit providing that half of one account (either the Etrade or Voya
account, he could not remember which) was to go to him. He further testified that
the Etrade account was worth approximately $29,000 while the Voya account was
worth approximately $11,000. Elizabeth corrected the name of their child (which
had been mistyped as “Adam”), testified that she was confident no custodial or
placement matters were amended, and reiterated multiple times that she couldn’t
remember anything else.6 When questioned by the court, Adam testified that the
$77,000 payout in the agreement was meant to reflect half of the value of the
couple’s real estate plus “$5,000 … to cover for guns and miscellaneous things in

6
Indeed, when asked by the circuit court whether she could recall if the value of the
Etrade account was “$1 million or $10” when the parties reached their agreement, she stated, “I
do not recall.” She did eventually testify that her records indicated the value of the Etrade and
Voya accounts together was $44,952.

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No. 2023AP611

the basement.” Elizabeth—who, like Adam, had not made any notation to the
$77,000 equalization payment in the Amended MSA—stated that that “would not
have been the final equalization payment” but could not recall what had changed.
She did not “recall exactly what the changes were” or “exactly what [change], if
anything, was made to the number 77,000.”

¶10 After considering the “entirety of the sworn testimony” and the
credibility of the witnesses—and questioning on the record “how there could be no
recollection of what was in there”—the circuit court ultimately determined that the
Amended MSA had been altered by the parties in two ways: to correct the name
of their child and to award half of the Voya account to Adam. All other
provisions, including the $77,000 equalization payment, 60/40 child placement,
$765 per month in monthly child support payments from Adam to Elizabeth, and
other property division7 remained as written in the Amended MSA. This MSA—
the “January 6 MSA”—was entered into the Record and ordered retroactive to the
date of divorce, which was February 7, 2022. Elizabeth appeals, asserting that the
judgment of divorce was invalid and should have been declared void, attacking the
January 6 MSA on both procedural and equitable grounds, and seeking her
attorney’s fees.

7
In response to Elizabeth’s stated concern regarding certain assets including “metals and
cash that were in [the Fitzgibbons’] safe, workshops and tools, [and their] weapons collection,”
the circuit court asked whether Elizabeth knew about those assets at the time of the agreement, to
which Elizabeth responded affirmatively, and then questioned why that property would not be
included in the MSA provision stating that Adam was awarded “any other disclosed asset in his
possession at the time of the final hearing.” As discussed more fully below, because construction
of the terms of the MSA is not within the scope of this appeal seeking to void it, we do not
consider the issue of whether these assets were encompassed in those provisions or equitably
divided.

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No. 2023AP611

Discussion

¶11 Elizabeth’s first argument is that the February 7, 2022 judgment of
divorce was invalid and should have been declared void for failure to satisfy the
statutory requirements of a stipulated divorce. See WIS. STAT. § 767.34. She
contends that “[n]o written, mutually-agreed MSA existed” on February 7 that
complied with WIS. STAT. § 241.02(1), that no MSA constituting a “meeting of the
minds” was approved by the parties, that any agreement was not binding under
WIS. STAT. § 807.05, and that neither the family court commissioner nor the
circuit court approved an MSA that resolved all material issues as required by
WIS. STAT. § 757.69(1)(p)1. and Winnebago County Circuit Court Rule 3.11.B.8

¶12 Pursuant to WIS. STAT. § 767.34, “parties in an action for … divorce
… may, subject to the approval of the court, stipulate for a division of property,
for maintenance payments, for the support of children, or for legal custody and
physical placement, in case a divorce … is granted.” Here, neither party disputes
that a document reflecting the parties’ stipulated agreement existed as of
February 7 or criticizes the circuit court’s conclusion, based on their consistent
testimony, that it did; however, Elizabeth argues that there were defects in this
document making it unenforceable and void.

¶13 First, Elizabeth cites the statute of frauds, which requires certain
agreements to be in writing. She does not develop any argument or cite any

8
Elizabeth cites the 2020 version of Rule 3.11.B, which was in effect at the
relevant time and can be found at: https://www.co.winnebago.wi.us/sites/default/files/uploaded-
files/winnebagocountylocalcourtrules2020.pdf. In the 2023 version of the rules, this rule
was amended and renumbered to Rule 3.05, available at: https://www.wisbar.org/Directories/Cou
rtRules/Wisconsin%20Circuit%20Court%20Rules/Winnebago%20County%20Circuit%20Court
%20Rules.pdf.

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No. 2023AP611

authority to support her apparent contention that it applies to divorce stipulations
as well as to “[e]very agreement, promise or undertaking made upon consideration
of marriage, except mutual promises to marry.” See WIS. STAT. § 241.02(1)(c).
Given the concession in her opening brief that “on January 28 …, Adam and
Elizabeth completed negotiations, hand-editing a printed copy of the Amended
MSA”—in other words, that the Hand-Edited Amended MSA (to which she and
Adam agreed immediately before their divorce hearing) was in writing—it does
not matter. There is no merit to Elizabeth’s statute of frauds argument. Elizabeth
also concedes that “both [Adam and Elizabeth] signed”—in other words,
approved—this MSA. WISCONSIN STAT. § 807.05 explicitly recognizes as binding
stipulations “made in court … and entered in the minutes or recorded by the
reporter, or made in writing and subscribed by the party to be bound thereby.”
(Emphasis added.)

¶14 From there, Elizabeth argues that “no MSA was approved by all
parties” and asserts that the divorce required approval from the family court
commissioner pursuant to WIS. STAT. § 757.69(1)(p)1. and then from a judge
pursuant to Winnebago County Court Rule 3.11(B)). Application of a statute to
the facts is a legal question that we review de novo. Xerox Corp. v. DOR, 2009
WI App 113, ¶46, 321 Wis. 2d 181, 772 N.W.2d 677. Again, Elizabeth fails to
develop the argument except to say that “[n]o Judge was involved before hearing
Elizabeth’s Motion to Declare as Void … on November 16.” We see no merit to
her argument such as it is. The statute in question states that a court commissioner
may

[p]reside at any hearing held to determine whether a
judgment of divorce … shall be granted if both parties to a
divorce action state that the marriage is irretrievably broken
… and that all material issues, including but not limited to
division of property or estate, legal custody, physical

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No. 2023AP611

placement, child support, spousal maintenance and family
support, are resolved…. A circuit court commissioner may
grant and enter judgment in any action over which he or
she presides under this subdivision unless the judgment
modifies an agreement between the parties on material
issues.

WIS. STAT. § 757.69(1)(p)1.

¶15 The parties testified under oath on February 7, 2022, that their
marriage was irretrievably broken and that they had resolved all of the enumerated
material issues. The commissioner explicitly confirmed important terms in the
Hand-Edited MSA, including custody, placement, child support (which he noted
“exceeds standards”), and maintenance. He confirmed that each party believed
their agreed upon property division was approximately equal. He then granted and
entered a judgment of divorce. See WIS. STAT. § 757.69(1)(p)1.

¶16 On its face, the local rule Elizabeth cites does not provide for
independent approval by a circuit court judge; it states that an agreement “intended
to be binding” “shall be submitted to the Family Court Commissioner for approval
prior to submission to the presiding Circuit Court Judge” and that “[i]f the
agreement is approved by the Family Court Commissioner, it will be forwarded to
the presiding Circuit Court Judge for signature and entry.” Winnebago Cnty.
Court Rule 3.11 B.2. To the extent it can be interpreted to require an additional
level of approval beyond the commissioner before a judgment of divorce can be
entered, we note that “local rules may not be inconsistent with state rules or
statutes.” See Hefty v. Strickhouser, 2008 WI 96, ¶59, 312 Wis. 2d 530, 752
N.W.2d 820 (citing WIS. STAT. § 753.35(1); emphasis removed).

¶17 This brings us to Elizabeth’s final contention supporting her
argument that the February 7 judgment of divorce should have been deemed void:

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No. 2023AP611

she asserts that a family court commissioner “can only grant divorces if ‘all
material issues … are resolved’” and that there were multiple material issues
unresolved between Adam and Elizabeth after February 7, 2022. See WIS. STAT.
§ 757.69(1)(p)1. In support, she points out that following their divorce hearing,
she and Adam disputed financial issues, custody, child support, placement
schedules, and many other issues such that “even if there had ever been a ‘meeting
of the minds’ … by the February 7 divorce hearing, the terms were misunderstood
or forgotten.” This is a legal issue involving application of a statute to facts which
we review independently. See Xerox Corp., 321 Wis. 2d 181, ¶46.

¶18 Crucially, Elizabeth does not make any effort to point out a
particular “material issue” that was missing from the Hand-Edited Amended
MSA. It would be hard for her to do so given her sworn testimony at the divorce
hearing that issues including child custody and placement were agreed and “in
[her] child’s best interest” and that property division was “approximately equal.”
While Elizabeth may have after-the-fact misgivings, she has not identified any
basis for this court to determine that the MSA was invalid, that the requirements of
WIS. STAT. § 757.69(1)(p)1. were not fulfilled at the time of divorce, or that the
divorce should later be deemed void.

¶19 In this case, the Record reflects efforts by both parties to change the
terms of their MSA more than it reflects a lack of material terms. Elizabeth
admitted in one of the affidavits she submitted to the circuit court that in
January 2022—before the February 7 divorce hearing—she sought to split the
marital assets in a way that would provide “sufficient start-up funding for [her]
post-marriage life,” but that after the hearing, in April-June 2022, she sought to
change the financial terms of the Hand-Edited Amended MSA due to the falling
value of some of the assets she had been awarded and her “much greater need for

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No. 2023AP611

cash,” among other reasons. She sought (and still seeks) to preserve the parts of
the Hand-Edited Amended MSA that she preferred: the 60/40 child placement and
monthly child support payment “exceed[ing] standards” that Adam was trying to
change via his motion in April 2022. On this Record, we cannot determine that
the circuit court’s determination “that there was an agreement, a meeting of the
minds, a contractual agreement” as to all the material terms necessary for a
judgment of divorce was in error, even as we acknowledge that court’s prediction
that the January 6 MSA is “a starting point to what … is probably going to be
more litigation.”

¶20 Second, Elizabeth attacks the January 6 MSA on procedural
grounds, arguing that it was the result of an improper and unfair procedure and
should not have been applied retroactively to the date of divorce. This argument
rests almost entirely on her contention that the parties were not properly divorced
and that there was “no MSA before January 6, 2023” so that the January 6 hearing
constituted “forc[ing] terms” on the parties. As we have already discussed, this
contention is incorrect. The circuit court articulated at the January 6, 2023 hearing
that it was granting Elizabeth’s motion for relief from the February 7, 2022
judgment of divorce due to its finding of a “very unique, exceptional”
circumstance—the court’s loss of the Hand-Edited Amended MSA—that justified
reopening the judgment of divorce to “clarify” it pursuant to WIS. STAT.
§ 806.07(1)(h). Although it should be used “sparingly,” a circuit court has
discretion to grant relief from a final judgment under “extraordinary
circumstances.” State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 541, 549-50,
363 N.W.2d 419 (1985); see also Thoma v. Village of Slinger, 2018 WI 45, ¶30,
381 Wis. 2d 311, 912 N.W.2d 56. “[U]pon consideration of any other factors
bearing upon the equities of the case, the court shall decide what relief if any

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No. 2023AP611

should be granted the claimant and upon what terms.” M.L.B., 122 Wis. 2d at
557.

¶21 Here, the parties seem to agree, correctly, that the circuit court’s loss
of the Hand-Edited Amended MSA (and incorporation of the Original MSA into
the original judgment of divorce) was an extraordinary circumstance that justified
relief from that original judgment. Indeed, it was Elizabeth who moved for relief
from judgment under WIS. STAT. § 806.07(1)(h). “Once [Elizabeth] invoked the
[circuit] court’s discretion under sec. 806.07 to amend the decision, the court had
the power to correct it to the disadvantage of [Elizabeth] as well as to [her]
advantage.” See Anchor Sav. & Loan Ass’n v. Coyle, 148 Wis. 2d 94, 106, 435
N.W.2d 727 (1989). This court will uphold the circuit court’s ruling and grant of
relief unless there has been an erroneous exercise of discretion. See id. at 106-07
(holding that trial court’s decision to grant relief under § 806.07 and to conduct a
hearing to gather evidence necessary to correct the original judgment was not an
erroneous exercise of discretion).

¶22 We conclude that the circuit court’s procedure for determining the
appropriate relief from the original judgment of divorce—conducting a hearing to
reconstruct the Hand-Edited Amended MSA with the benefit of oral testimony and
the ability to assess the credibility of the witnesses—constituted an appropriate
exercise of the court’s discretionary ability to decide what relief should be granted.
“The loss or destruction of a memorandum does not deprive it of its effect … and
oral evidence of the making and contents of the memorandum is admissible.”
RESTATEMENT (FIRST) OF CONTRACTS § 216 (1932); see also Mitchell Bank v.
Schanke, 2004 WI 13, ¶¶7, 42, 268 Wis. 2d 571, 676 N.W.2d 849 (holding, when
a bank sought to enforce a note that was memorialized in a document destroyed in
a flood, that “the Bank was not required to produce the Note in physical form, if it

13
No. 2023AP611

could establish the Note’s existence, terms, and conditions through other
evidence”). Importantly, although she uses the term “due process” in her brief,
Elizabeth does not identify any “unfairness” in the court’s procedure except to say
that she did not agree to the terms of the January 6 MSA—at that time in 2023—
and to suggest that the court was therefore “forcing terms” on her. Elizabeth is
missing the point that the court found there was an agreement as of the February 7,
2022 hearing and that she had every opportunity to disclose her version of the
terms of that agreement. Although she insists that the January 6 MSA is a “lost
MSA counterfeit[]” and not a “facsimile” of the Hand-Edited Amended MSA, she
does not identify a single term that she believes was different in the Hand-Edited
MSA; she only says she cannot remember what was in the latter document. We
find, in this unique and rather unusual circumstance, no erroneous exercise of
discretion in the procedure employed in granting relief from the original judgment
of divorce and to amend that judgment with a corrected MSA.

¶23 This leads to Elizabeth’s third argument: that the January 6 MSA is
inequitable and should be invalidated for that reason even if it is deemed
procedurally correct. She cites Button v. Button, 131 Wis. 2d 84, 89, 388 N.W.2d
546 (1986), which states “that an agreement is inequitable” unless “each spouse
has made fair and reasonable disclosure to the other of his or her financial status;
each spouse has entered into the agreement voluntarily and freely; and the
substantive provisions of the agreement dividing the property upon divorce are fair
to each spouse.”

¶24 Elizabeth moved the circuit court for relief from the January 6 MSA
on these grounds on February 16, 2023. There is no decision on that motion in the
Record, and the order from which she appeals—entered on January 11, 2023—
does not address this issue. Thus, this issue is beyond the scope of appeal and is,

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No. 2023AP611

as the circuit court said in January, “a separate motion.” See Gruber v. Village of
N. Fond du Lac, 2003 WI App 217, ¶27, 267 Wis. 2d 368, 671 N.W.2d 692 (“We
are loath to reverse a trial court on an issue that the trial court never had the
opportunity to address.”).

¶25 Finally, Elizabeth seeks attorney fees and other costs associated with
her January 6 MSA-related litigation. Pursuant to WIS. STAT. § 767.241(1)(a), the
circuit court may, in its discretion, “[o]rder either party to pay a reasonable
amount for the cost to the other party of maintaining or responding to an action
affecting the family and for attorney fees to either party.” Id.; see also Johnson v.
Johnson, 199 Wis. 2d 367, 377, 545 N.W.2d 239 (Ct. App. 1996).

¶26 Elizabeth states that the circuit court “made no evaluation or award
of fees/costs[,] erroneously disregarding her need, fee/cost reasonableness … and
parties’ ability to pay.” However, she points to only one line in the Record—a
line in her motion to reopen the original divorce judgment—where she made any
attempt to recover fees; in that line, she asked for an award of “all costs and
attorney fees incurred in having to bring this Motion.” She points us to nothing in
the Record where she submitted the evidence necessary to decide an award of fees,
and, when asked if there were any other issues that needed to be addressed
“regarding the creation of the MSA” at the January 6, 2023 hearing, her counsel
did not bring up attorney fees. We decline to reach this issue absent any attempt
to seek relevant factual findings supporting the litigant’s position in the circuit
court.

¶27 For the foregoing reasons, we affirm the order of the circuit court
incorporating the January 6 MSA into the parties’ judgment of divorce.

By the Court.—Order affirmed.

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No. 2023AP611

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

16