Jessica Lyn Volz v. Michael John Volz

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 27, 2025
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. 2023AP2014 Cir. Ct. No. 2020FA70

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

JESSICA LYN VOLZ,

PETITIONER-RESPONDENT,

V.

MICHAEL JOHN VOLZ,

RESPONDENT-APPELLANT.

APPEAL from a judgment of the circuit court for Adams County:
DANIEL G. WOOD, Judge. Affirmed.

Before Kloppenburg, P.J., Graham, and Taylor, 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. 2023AP2014

¶1 PER CURIAM. Michael Volz appeals a divorce judgment
resolving contested issues between Michael and Jessica Volz.1 Michael argues
that the circuit court erroneously exercised its discretion by: (1) denying
Michael’s request to continue the divorce trial; (2) denying maintenance to
Michael; and (3) valuing and dividing the parties’ marital property. For the
reasons explained in this opinion, we reject Michael’s arguments on each of these
points. We affirm.

Background

¶2 Jessica filed this divorce action in November 2020. In April 2023,
after extensive pretrial litigation—during which Michael retained and then fired
three different attorneys, and retained a fourth attorney—the divorce trial was
scheduled to begin on August 30, 2023.

¶3 On July 19, 2023, Michael notified the circuit court that he would no
longer be represented by his fourth attorney. Michael stated that a new law firm
was willing to take his case, but that the firm requested a continuance of the
scheduled trial to review the case. On July 20, 2023, the court denied Michael’s
request for a continuance. The court explained that the trial in this “dated” case
had been on the court’s “very busy calendar” since April 2023, and that
“[r]escheduling would require substantial delay and inconvenience.” Also on
July 20, 2023, Michael’s fourth attorney moved to withdraw, explaining that
Michael had “made it clear … that he no longer want[ed] [counsel] to represent
him” and that “[t]here ha[d] been a complete and total breakdown of the attorney-

1
Because the parties share a surname, we refer to them by their first names for clarity.

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client relationship.” On July 21, 2023, the court issued an order granting
Michael’s fourth attorney’s motion to withdraw.

¶4 On August 3, 2023, Michael moved to continue the trial on the basis
that he did not have counsel. The circuit court denied the request for the same
reasons as it denied Michael’s prior request for a continuance.

¶5 On August 28, 2023, Michael filed another motion to continue the
trial. Michael asserted that he was “not medically able to attend the trial,” and he
attached a letter from a clinical psychologist opining that Michael was
experiencing “increased suicidal ideation” over the past two weeks. The
psychologist also opined that “[o]ne of the major current stressors for [Michael
was] that he [did] not have legal representation in his divorce proceeding.” The
circuit court denied the motion, noting that the trial had been scheduled for more
than four months.

¶6 On August 30, 2023, the first day of the scheduled trial, Michael
filed another motion to continue the trial stating that he was “not medically able to
attend the trial.” Michael attached a letter from a clinical psychologist stating that
Michael had been placed on a “voluntary mental health hold.” Jessica appeared
for trial with counsel, and Michael did not appear.

¶7 At the outset of trial, the circuit court addressed its decision to deny
Michael’s requests to continue the trial. The court explained that it denied the
requests to continue the trial for the following reasons: (1) the case was already
almost three years old; (2) Michael had previously retained four different
attorneys, all of whom withdrew due to a breakdown in communication;
(3) Michael was on notice that trial was scheduled to begin that day, and his “last
minute desires to postpone the trial [came] with a backdrop of obstructionism on

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his part,” including a prior finding of contempt by the court for failing to allow
Jessica to exercise her physical placement with their children as ordered by the
court; (4) Michael’s current mental health issues were reportedly based on his lack
of legal counsel, which the court found was “the result of [Michael’s] own choices
including termination of counsel so close to trial”; (5) rescheduling the trial would
put the case into the next year, resulting in it being more than three years old, and
would be a waste of the court’s scarce resources, including its time; and
(6) adjourning trial would be unfair to Jessica, because it would be a waste of
Jessica’s time and resources preparing for trial and “would delay her ability to
timely end what is unquestionably a toxic marriage.” After addressing its reasons
for denying Michael’s requests for continuances, the court held the trial without
Michael being present.

¶8 After taking evidence during the trial, the circuit court made the
following factual findings. The parties’ marriage was “longer term.”2 At the time
of the divorce, Jessica was forty-two years old and employed as a nurse, with a
most recent annual salary of about $112,000. Michael was forty-three years old
and was unemployed. Michael had a “substantial income” during the marriage,
earning “substantially more” than Jessica, but he had left his employment during
the divorce proceedings for unknown reasons. Michael received $1,800 a month
in military disability benefits, which he had also received during his employment.
Michael had the capacity to earn more than the $1,800 he received in disability
benefits, but his actual current earning capacity was unknown because Michael

2
The parties were married in January 2003, and Jessica filed for divorce in
November 2020.

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presented no evidence at trial.3 Michael had a retirement account valued at
$164,172 and a deferred compensation account, which Michael depleted during
the divorce action, valued at $118,800.4 Jessica had retirement accounts valued at
$44,301.33 and $34,366.63. The court found credible Jessica’s undisputed
testimony concerning the value of the parties’ personal property, and that certain
items of property remained in Michael’s possession. The court also found credible
Jessica’s undisputed testimony about the parties’ marital debts, and denied
Michael’s prior claims of marital debt that were not properly documented by the
deadline previously set by the court.

¶9 Based on those facts, the circuit court made the following decisions
concerning property division and maintenance. Michael was awarded his
retirement account worth $164,172 and Jessica was awarded her retirement
accounts worth $78,667.96. The values of those assets were not included in the
court’s “Property Division Spreadsheet,” resulting in a division of marital property
in Michael’s favor. The value of Michael’s deferred compensation account, which
he depleted during the divorce action, was $118,800 minus a 20% tax discount,
3
In pretrial proceedings, Jessica asserted that Michael’s prior income had been more
than $120,000. Jessica asserts on appeal that Michael had historical annual earnings of
approximately $120,000, and Michael does not dispute that point in his reply brief. Rather,
Michael asserts that, “[w]hile [Michael’s] historical high earnings were referenced by the Court,
there was not a finding of Michael’s [current] income, nor his income capability at the time of
trial.” We therefore take Michael to concede that he had a prior income of $120,000. See United
Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (lack of
response in reply brief may be taken as a concession).
4
The circuit court was entitled to consider the value of Michael’s deferred compensation
account as part of the marital estate subject to division. See WIS. STAT. § 767.63 (2023-24)
(providing that an asset that would have been part of the marital estate but “that was transferred
for inadequate consideration, wasted, given away, or otherwise unaccounted for by one of the
parties within one year prior to the filing of the petition … is rebuttably presumed to be property
subject to division”). All subsequent references to the Wisconsin Statutes are to the 2023-24
version unless otherwise indicated.

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No. 2023AP2014

and was included in the marital estate, subject to division and factored into the
equalization payment the court determined Michael owed to Jessica. The court
included as marital debt $18,000 of Jessica’s outstanding student loan amount of
$24,000, assigning the remaining $6,000 to Jessica individually. The court
declined to award maintenance to Michael after considering Michael’s substantial
income during the marriage and that there were no facts at trial to establish why
Michael left his employment after the commencement of the divorce action or to
establish that there were any limitations on his employability. The court also
explained that it had already accounted for the current disparity in the parties’
incomes by deviating from an equal property division in Michael’s favor and
awarding each party their individual retirement accounts, of which Michael’s
account was valued substantially higher than Jessica’s retirement account.
Michael appeals.

Standard of Review

¶10 The decision whether to grant or deny a motion to continue a trial,
and decisions concerning maintenance and property division in a divorce case, are
committed to the circuit court’s discretion. State v. Leighton, 2000 WI App 156,
¶27, 237 Wis. 2d 709, 616 N.W.2d 126 (continuance); LeMere v. LeMere, 2003
WI 67, ¶13, 262 Wis. 2d 426, 663 N.W.2d 789 (maintenance and property
division). “We will affirm a circuit court’s exercise of discretion if the court
applie[d] the correct standard of law and, using a demonstrated rational process,
reach[ed] a conclusion that a reasonable court could reach.” Estate of Rille v.
Physicians Ins. Co., 2007 WI 36, ¶39, 300 Wis. 2d 1, 728 N.W.2d 693.

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No. 2023AP2014

Discussion

¶11 Michael argues that the circuit court erroneously exercised its
discretion by denying his July 19, 2023 request for a continuance of the
August 30, 2023 trial date because the court failed to consider the following
relevant factors: (1) Michael sought a reasonable continuance rather than a
substantial delay; (2) the purpose of the request was to allow Michael to retain his
fifth attorney and to allow time for that attorney to prepare for trial; and (3) this
was Michael’s first request for a continuance of the trial.5 See Rechsteiner v.
Hazelden, 2008 WI 97, ¶93, 313 Wis. 2d 542, 753 N.W.2d 496 (relevant factors
for a court to consider regarding a request to continue trial include “the length of
the delay requested”; “whether other continuances had been requested and
received”; “the convenience or inconvenience to the parties, witnesses, and the
court”; and “whether the delay seems to be for legitimate reasons”). Michael
contends that, when the court denied this request, the court made no finding as to
whether the request was for a legitimate reason rather than for purposes of delay.
Michael also argues that the court should have held a hearing to address his
request for a continuance before allowing Michael’s fourth attorney to withdraw.
Michael fails to show that the court erroneously exercised its discretion.

¶12 Here, Michael made his first request to continue the August 30, 2023
trial on July 19, 2023. Michael indicated to the circuit court in his continuance
request that he would no longer be represented by his fourth attorney due to “the

5
Michael asserts in his statement of issues that the circuit court erred by denying
Michael’s multiple motions for a continuance. However, the only argument he makes in the
argument section of his brief on this issue is that the court erred by denying his first request for a
continuance, which was made in July 2023. Therefore, this is the argument we address.

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No. 2023AP2014

two recent deposition cancellations.” Michael stated that he had found “better
representation” but the new attorney would need a “reasonable continuance” to
prepare the case. In other words, Michael made the decision to discharge his
fourth attorney before requesting, much less receiving, a continuance from the
court regarding the scheduled trial date. As the court stated in its July 20 order
denying the request, the trial had been set on the court’s “very busy” calendar
since April 2023, and “[r]escheduling would require substantial delay and
inconvenience.” Thus, although Michael stated that he was requesting only a
“reasonable continuance,” the court found that granting the request would result in
“substantial delay.”6 The court considered that such a delay would cause
inconvenience to the court and the opposing party. A circuit court has “inherent
authority to decide, on the specific facts before it, whether the interests of
efficiency and fairness will or will not be best served by a continuance or
adjournment.” State v. Chvala, 2003 WI App 257, ¶21, 268 Wis. 2d 451, 673
N.W.2d 401. The court here found that continuing the trial would result in
substantial delay and inconvenience, both of which are appropriate and reasonable
factors for the court to consider. Accordingly, the court reasonably exercised its
discretion in denying Michael’s motion for a continuance.

¶13 Moreover, we are not persuaded by Michael’s contention that the
circuit court was required to make a specific finding that the motion for a
continuance was not for a legitimate purpose in order to properly exercise its
discretion in denying the motion. Whether a request for a continuance was made

6
At the outset of trial on August 30, 2023, the court explained further that rescheduling
trial would have pushed the trial into the following year, at which point the case would have been
over three years old.

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for a legitimate purpose is just one factor to be balanced among other factors in a
court’s exercise of discretion in deciding a motion for a continuance. See
Rechsteiner, 313 Wis. 2d 542, ¶¶93-97. As explained above, the court denied the
motion for a continuance based on the length of delay that would be caused by
rescheduling the trial and the resulting inconvenience to the opposing party and
the court. See id., ¶93 (factors one and three). Michael has not established that the
court’s decision based on those factors was an erroneous exercise of discretion.

¶14 We are similarly not persuaded by Michael’s contention that the
circuit court was required to hold a hearing before allowing Michael’s fourth
attorney to withdraw to properly exercise its discretion on Michael’s motion to
continue the trial. As set forth above, in his July 19, 2023 letter in which he
requested a continuance, Michael indicated that his fourth attorney would no
longer be representing him. Therefore, Michael made this decision before asking
for a continuance of the trial date. Further, the court denied Michael’s request for
a continuance on July 20, 2023, before the court issued its July 21, 2023 order
permitting Michael’s fourth attorney to withdraw. Accordingly, Michael knew
before the court allowed his fourth attorney to withdraw that his request for a
continuance was denied. That the court did not hold a hearing before granting the
motion to withdraw does not alter our analysis, above, that the court properly
exercised its discretion to deny Michael’s request for a continuance based on the
facts before the court.

¶15 Next, Michael argues that the circuit court erroneously exercised its
discretion by failing to consider relevant statutory factors in denying maintenance

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to Michael.7 Specifically, Michael alleges that the court erred in not considering
Michael’s earning capacity and ability to support himself at the marital standard of
living. See WIS. STAT. § 767.56(1c)(c) and (f).8 Michael contends that, without
determining Michael’s earning capacity, the court could not properly apply the

7
In pertinent part, WIS. STAT. § 767.56(1c) states:

Upon a judgment of … divorce, … the court may grant an order
requiring maintenance payments to either party for a limited or
indefinite length of time … after considering all of the following:

(a) The length of the marriage.

(b) The age and physical and emotional health of the
parties.

(c) The division of property made under [WIS. STAT.
§] 767.61.

….

(e) The earning capacity of the party seeking
maintenance, including educational background, training,
employment skills, work experience, length of absence from the
job market, custodial responsibilities for children and the time
and expense necessary to acquire sufficient education or training
to enable the party to find appropriate employment.

(f) The feasibility that the party seeking maintenance
can become self-supporting at a standard of living reasonably
comparable to that enjoyed during the marriage, and, if so, the
length of time necessary to achieve this goal.

….

(j) Such other factors as the court may in each
individual case determine to be relevant.
8
Michael also contends that the circuit court erred by failing to consider the tax
consequences of maintenance to the parties. See WIS. STAT. § 767.56(1c)(g). However, Michael
does not argue that the tax consequences to the parties were relevant to whether the court should
award him maintenance. “In making a maintenance decision, the court is not obliged to consider
all of the statutory factors, but must consider those factors that are relevant.” Brin v. Brin, 2014
WI App 68, ¶11, 354 Wis. 2d 510, 849 N.W.2d 900.

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statutory factors under § 767.56(1c) or apply the support and fairness objectives of
a maintenance decision. See LaRocque v. LaRocque, 139 Wis. 2d 23, 31-34, 406
N.W.2d 736 (1987). We conclude that Michael has not established that the court
erroneously exercised its discretion by denying maintenance to Michael.

¶16 First, Michael failed to appear for trial, which alone provided a basis
for the circuit court to deny Michael’s pretrial request for maintenance.9 See
Buchanan v. General Cas. Co., 191 Wis. 2d 1, 9, 528 N.W.2d 457 (Ct. App.
1995) (providing that a “trial court may dismiss a party’s claim for failure to
appear at a scheduled trial date in direct contravention of a previous court order”).
The court repeatedly denied Michael’s request for a continuance of the trial date,
and Michael was on notice that the trial would proceed on August 30, 2023.
Because he failed to appear at the scheduled trial, the court had a valid basis to
dismiss his request for maintenance. See Chevron Chem. Co. v. Deloitte &
Touche, 176 Wis. 2d 935, 945, 501 N.W.2d 15 (1993) (we may affirm a circuit
court’s decision on other grounds).

¶17 Nonetheless, the circuit court explained its reasons for denying
maintenance to Michael as follows: Michael had earned substantially more than
Jessica during their marriage and had decided to leave his well-paying job for
unknown reasons during the divorce proceedings, and there were no limitations
established on Michael’s employability; based on his prior earnings, Michael had
the capacity to earn more than the $1,800 per month he currently received in
military disability payments, even though his exact earning capacity could not be

9
At the final pretrial hearing in April 2023, the court noted that Michael was requesting
maintenance, and that maintenance was an issue that would be in dispute at trial.

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No. 2023AP2014

assessed because of his failure to appear; the court offset the current disparity in
the parties’ incomes by awarding the parties the value of their own retirement
accounts and excluding these values from the court’s equal division of the
remaining property, which resulted in Michael receiving a more favorable
property division award;10 and the desirability of giving finality to the parties
without necessitating further highly contentious court proceedings. Thus, the
court explained that it considered the relevant factors under WIS. STAT.
§ 767.56(1c) and the support and fairness objectives of maintenance. Michael
fails to show that the court could not properly exercise its discretion in the absence
of a finding (or any evidence) as to Michael’s exact earning capacity, especially
considering that Michael did not appear at trial to establish his earning capacity.
Michael has not established any basis for this court to disturb the circuit court’s
exercise of discretion.

¶18 Finally, Michael argues that the circuit court erroneously exercised
its discretion in its division of marital property. The general rule governing
property division is that all assets and debts acquired during the marriage are
divisible upon divorce, see McLaren v. McLaren, 2003 WI App 125, ¶8, 265
Wis. 2d 529, 665 N.W.2d 405, according to their value as of the date of the
divorce, Schinner v. Schinner, 143 Wis. 2d 81, 98, 420 N.W.2d 381 (Ct. App.

10
Michael contends that the circuit court erred by considering the unequal property
division in its maintenance determination because the court did not consider Michael’s claimed
debts and Michael disputed the property valuations. However, Michael failed to provide
documentation by the court’s deadline to support his claims of debt. He also failed to appear at
trial to provide any testimony or evidence on those issues. As set forth below, Michael does not
explain why the circuit court erred by relying on the undisputed trial testimony on those issues.
We decline to considered undeveloped arguments. State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992) (we may decline to address arguments that are undeveloped or lack
references to supporting legal authority).

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1988). Consequently, under WIS. STAT. § 767.61(3), a circuit court starts with the
presumption that marital property is to be divided equally at divorce. A court may
deviate from an equal division of marital property after considering relevant
statutory factors, including whether a property division award is in lieu of
maintenance. See LeMere, 262 Wis. 2d 426, ¶¶24-26; see also § 767.61(3)(i)
(courts can consider a property division award in lieu of maintenance).

¶19 We also review a circuit court’s division of marital property for
whether the division was “fair and equitable.” Danielson v. Danielson, 2024 WI
App 57, ¶9, 414 Wis. 2d 1, 13 N.W.3d 239 (citation omitted).

¶20 Michael argues that the circuit court erroneously exercised its
discretion in its division of the parties’ marital property. He contends that the
court failed to resolve conflicts between the parties as to the value of Michael’s
deferred compensation account and how the funds from that account had been
used. He also argues that the court erred by accepting Jessica’s testimony as to the
value of the parties’ retirement accounts and personal property, and Michael’s
possession of their personal property, without further evidence to support that
testimony. He contends that the court erred by including a portion of Jessica’s
student loan as marital debt when Jessica will be the only one to benefit from her
degree, and by excluding debts claimed by Michael. He argues that the court erred
by considering only one statutory factor in its property division, that is, that no
maintenance had been awarded. See WIS. STAT. § 767.61(3)(i). He also contends
that, because the court did not order maintenance, the court should have awarded
him an even greater share of the marital property.

¶21 Michael fails to show that the circuit court erroneously exercised its
discretion in its property division award. First, Michael has not explained why the

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court was not entitled to rely on the undisputed evidence at trial as to the value of
the parties’ retirement accounts and debts, and the value and possession of the
parties’ marital property. Second, the court included a portion of Jessica’s student
loan debt as marital debt because of her undisputed testimony that the majority of
her student loans paid for household living expenses that benefitted both parties.
Third, as set forth above, the court was entitled to count the full value of Michael’s
deferred compensation plan, less a tax discount the court applied, that Michael
disposed of during the divorce proceedings as divisible property that Michael had
received from the marital estate. Finally, Michael does not develop an argument
as to how the statutory factors, applied to the facts before the circuit court, would
have supported a more favorable division of the marital property in his favor. In
fact, the division of the parties’ marital property favored Michael. Accordingly,
Michael has provided no basis for this court to disturb the court’s exercise of
discretion in its property division decision. We affirm.11

By the Court.—Judgment affirmed.

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

11
To the extent Michael raises any other arguments on appeal not specifically addressed
in this opinion, we deem those arguments insufficiently developed to warrant a response. See
Pettit, 171 Wis. 2d at 646-47.

14