Herbert Lee Cody, Jr. v. Dawn Marie Cody

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.
February 25, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP2022 Cir. Ct. No. 2018FA27

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

HERBERT LEE CODY, JR.,

PETITIONER-APPELLANT,

V.

DAWN MARIE CODY,

RESPONDENT-RESPONDENT.

APPEAL from a judgment of the circuit court for Lafayette County:
DUANE M. JORGENSON, Judge. Affirmed.

Before Fitzpatrick, P.J., Graham, and Nashold, 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. 2019AP2022

¶1 PER CURIAM. Herbert Cody appeals a circuit court judgment of
divorce. The issue is whether the circuit court erroneously exercised its discretion
in ordering Herbert to pay maintenance to Dawn Cody.1 We conclude that the
circuit court reasonably exercised its discretion. Accordingly, we affirm.

Background

¶2 Herbert and Dawn were married in 2001 and did not have any children
together. Herbert filed a petition for divorce on May 23, 2018. Both parties were
in their fifties at the time of divorce.

¶3 The parties both entered into the marriage with existing debt
obligations. Dawn had purchased a house in Hales Corners, Wisconsin, in 1998 and
had a mortgage on the house. During the marriage, the parties refinanced the house
in both parties’ names. The parties resided together there until January 2014, when
Herbert moved to Belmont, Wisconsin, for a job with QueenB Radio station.

¶4 After divorce proceedings were initiated in May of 2018, the parties
sold the house in Hales Corners. The proceeds from the sale of the house were used
to pay off marital debt. After the sale of the house, Dawn began renting a shared
residence with her sister and another individual, where Dawn’s share of the rent and
utilities totaled about $500 per month. Herbert remained in his apartment in
Belmont, paying $380 in monthly rent in addition to utilities.

¶5 The parties entered into a stipulated agreement as to the division of
their marital property and debts. The circuit court held a trial on May 9, 2019, solely
on the issue of maintenance. After considering the testimony, documentary

1
Because the parties have the same last name, we refer to them by first names for clarity.

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evidence and the record, the trial court found that Dawn’s gross pay from her
employment at Heartland Advisors was $76,100 annually, while Herbert’s annual
income from QueenB Radio was $94,760 without consideration of bonuses.2 The
court granted the parties their requested divorce and ordered Herbert to pay $950 in
monthly maintenance to Dawn for five years. The court later entered written
findings of fact and conclusions of law. Herbert filed a motion for reconsideration,
which the circuit court denied in an oral ruling on October 9, 2019. This appeal
follows.

Standard of Review

¶6 An appellate court “will not disturb the circuit court’s decision
regarding maintenance unless the award represents an erroneous exercise of
discretion.” Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶17, 269 Wis. 2d 598, 676
N.W.2d 452. “A circuit court engages in an erroneous exercise of discretion when
it fails to consider relevant factors, bases its award on factual errors, makes an error
of law, or grants an excessive or inadequate award.” Id., ¶18.

Discussion

¶7 WISCONSIN STAT. § 767.56(1c) (2017-18)3 lists a number of factors
for a trial court to consider when determining the amount and duration of a
maintenance award, including the length of the marriage, the age and health of the

2
Dawn asserts in her respondent’s brief that she “successfully moved to correct the
record” to reflect her base salary as $70,000. The record does not support this assertion. The record
reflects that Dawn informed the court by letter that the findings of fact, conclusions of law, and
judgment for divorce should be corrected to show that her gross annual salary is $70,000, and not
$76,100 as stated in the written findings of fact. The court addressed this request in its oral ruling
on the reconsideration motion, and declined to disturb its written finding as to Dawn’s salary.
3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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parties, the property division, the parties’ respective educational levels and earning
capacities, the contributions of one party to the education or earning power of the
other, and the standard of living enjoyed during the marriage. These factors

are designed to further two distinct but related objectives in
the award of maintenance: to support the recipient spouse in
accordance with the needs and earning capacities of the
parties (the support objective) and to ensure a fair and
equitable financial arrangement between the parties in each
individual case (the fairness objective).

Laroque v. Laroque, 139 Wis. 2d 23, 32-33, 406 N.W.2d 736 (1987).

¶8 Herbert argues on appeal that the circuit court erroneously exercised
its discretion in awarding maintenance to Dawn. He argues that (1) Dawn’s reason
for requesting maintenance was so that she could work part-time and retire early;
(2) Dawn misrepresented to the court that she needed a college degree to use her
investment licenses to earn a more lucrative income; (3) the circuit court improperly
considered the pre-marital value of the marital home; and (4) Dawn reneged on the
parties’ agreement to sell the marital home to pay off debt. For the reasons
explained below, we reject each of these arguments.

¶9 We turn first to Herbert’s argument that the circuit court erred in
awarding maintenance to Dawn because, as phrased in the appellant’s brief, her
reason for requesting spousal support was so that she could work part-time or retire
early. Herbert argues that, with most of the marital debt paid off and with Dawn
electing to live with her sister, Dawn does not need maintenance to support herself.
Herbert asserts that the maintenance payments will result in approximately $19,000
in annual discretionary income for Dawn to put away for an early retirement.

¶10 Dawn disputes Herbert’s assertion that she does not need maintenance
to support herself, and further disputes his assertion that she will be able to retire

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early. She argues that the record does not support Herbert’s assertion that, as a result
of maintenance, she will be putting away $19,000 per year for retirement.

¶11 We agree with Dawn that the record does not support Herbert’s
assertion on this point. Herbert relies mainly upon trial testimony from Dawn that
she had talked to her employer’s human resources department and that she planned
to put away “the maximum,” or $19,000, into her 401K. However, as Dawn points
out in her respondent’s brief, her hope to make the maximum allowable pre-tax
contribution to her 401K is not the same thing as actually being able to do so. Her
financial disclosure statement shows a monthly deduction in the amount of only
$583.34 for retirement savings, or approximately $7,000 annually. Dawn testified
unequivocally at trial, based on her financial disclosure statement, that her total
monthly expenses left her “in the negative” and that, even if she wanted to, there
was no possibility for her to put away anything more toward her retirement. Dawn
also testified that she did not anticipate being able to retire at age 65, let alone earlier.

¶12 In making its findings, the circuit court adopted the budget and
income shown in Dawn’s financial disclosure statement as an accurate showing of
her needs for purposes of determining maintenance. Herbert does not argue in his
appellant’s brief that Dawn’s financial disclosure statement or any of the
information contained in it is inaccurate. In light of all of the above, we are satisfied
that the record reflects a proper exercise of the circuit court’s discretion in awarding
maintenance to Dawn under WIS. STAT. § 767.56(1c), based upon the financial
disclosure statements and the testimony and other evidence presented by the parties
at trial.

¶13 Next, relevant to the issue of earning capacity under WIS. STAT.
§ 767.56(1c)(e), we address Herbert’s argument that Dawn made a

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misrepresentation to the court when she testified that she needed a college degree to
use the Series 6, Series 63, and Series 65 securities licenses that she acquired at her
employer’s request. Herbert asserts that Dawn is not required under WIS. STAT.
§ 551.401 or under Financial Industry Regulatory Authority (FINRA) to have a
college degree in order to sell investments or give financial advice; that only the
relevant licenses in good standing are required.

¶14 Dawn counters that, although she is not aware of any regulation
requiring a college degree to sell securities or provide advice under her FINRA
licenses, as a practical matter neither her current employer nor any potential
employer would hire her without a college degree. This position is consistent with
Dawn’s trial testimony. She testified that she acquired Series 6, 63, and 65 security
licenses because her job required it. However, Dawn also testified that she currently
works in marketing production and does not actually use the licenses. She testified
that the licenses were obtained because, for the first year and a half after she started
her employment at Heartland Advisors, Dawn worked in client services and had to
have the ability to speak about products. Dawn testified that her licenses could give
someone with a college degree a high earning capacity, but that she does not have a
college degree. The circuit court heard all of the testimony regarding Dawn’s
education, licenses, and earning potential, and determined that Dawn was currently
earning at capacity. The circuit court’s determination is supported by the record and
is not an erroneous exercise of discretion.

¶15 Next, we address Herbert’s argument that the circuit court improperly
considered the pre-marital value of the marital residence “in disregard of the
husband’s early joint tenancy and financial contributions over 18 years of
marriage[.]” Herbert fails to develop his argument in the appellant’s brief with any
factual or legal citations, and we reject it on that basis. See State v. Pettit, 171 Wis.

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No. 2019AP2022

2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (we may decline to review issues that
are inadequately briefed).

¶16 Finally, Herbert asserts that he and Dawn agreed that they would pay
off marital debt and leave the marriage without further financial obligation. He
argues that, by requesting maintenance, Dawn reneged on that agreement. Herbert
asserts that he was not aware that Dawn was going to ask for spousal maintenance
until a court hearing in November of 2018, after the house had been sold and the
debts paid off. The record does not support Herbert’s assertion on this point. A
response and counterclaim filed by Dawn on June 11, 2018, states explicitly that
Dawn is requesting maintenance. Moreover, Dawn asserts in her brief that she never
agreed or stipulated to waive an award of maintenance. Herbert did not file a reply
brief disputing this assertion. A proposition asserted by a respondent on appeal and
not disputed by the appellant in the reply brief is taken as admitted. See Schlieper
v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994). We reject Herbert’s
argument that Dawn waived maintenance or that she should be estopped from
requesting it.

¶17 In sum, Herbert’s arguments do not show an erroneous exercise of
discretion. In effect, Herbert is asking this court to view the evidence differently
than the circuit court viewed it, with an emphasis on evidence that best supports his
position. That is not appropriate under our standard of review. As our supreme
court recognized, “a [circuit] court in an exercise of its discretion may reasonably
reach a conclusion which another judge or another court may not reach[.]” Hartung
v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). As discussed above, the
circuit court considered relevant statutory factors and arrived at a decision which a
reasonable judge could reach while properly considering the support and fairness
objectives of maintenance.

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No. 2019AP2022

By the Court.—Judgment affirmed.

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

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