Linda Albert v. Michael Albert

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.
June 9, 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. 2019AP2435 Cir. Ct. No. 2017FA943

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN RE THE MARRIAGE OF:

LINDA ALBERT,

PETITIONER-RESPONDENT,

V.

MICHAEL ALBERT,

RESPONDENT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Racine County: MAUREEN M. MARTINEZ, Judge. Affirmed.

Before Neubauer, C.J., Gundrum and Davis, 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. 2019AP2435

¶1 PER CURIAM. Michael Albert appeals from a judgment of divorce
and an order denying his motion for reconsideration. He raises issues relating to
expert testimony, a marital property agreement (MPA), the division and valuation
of property, and attorney’s fees. For the reasons that follow, we affirm.

¶2 Michael and Linda Albert were married on July 4, 1993. Prior to
their marriage, they entered into an MPA. The MPA detailed their individual
property and provided that it would remain classified as individual during the
marriage and upon divorce. It also provided that any appreciation in the value of
the individual property would remain classified as individual regardless of whether
the appreciation was “attributable to market conditions or to the labor, efforts,
inventiveness, physical or intellectual skill, creativity or managerial activity of
either Party.”

¶3 At the time the MPA was entered, Michael’s individual property
totaled $39,000, while Linda’s totaled $692,756. One of the items listed as
Linda’s individual property was a house in Wind Lake with a mortgage. Because
Michael was a union carpenter at the time the MPA was entered, and because it
was anticipated that he would work on the house, the MPA included a provision
pertaining to improvements of the homestead residence during the marriage. It
stated in relevant part:

[I]n the event that the Parties are awarded a divorce … the
net equity of said property shall be allocated as follows:

First of all, the Parties shall receive as Marital Property all
principal reduction which has accrued on loans
encumbering the parcel resulting from payments made
from Marital Property during the Parties’ marriage.…
Next, the parties shall receive as Marital Property an
amount equal to all expenditures made by the Parties’ [sic]
from their Marital Property over the course of the marriage
for improvement or maintaining said parcel.

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No. 2019AP2435

¶4 As anticipated, Michael performed improvements to the Wind Lake
house and contributed to mortgage payments during the marriage. He also
progressed in his career, becoming a construction manager. Linda, meanwhile,
accepted an early retirement package from her employer so that she could stay
home with the couple’s children, who are now adults. However, she continued to
contribute to mortgage payments and family expenses from income earned from
her investment accounts.

¶5 Linda filed for divorce on August 22, 2017. More than a year later,
Michael filed a “Motion to Construe Marital Property Agreement.” He alleged
that there had been a substantial change in circumstances due to his efforts to
improve the Wind Lake house. Accordingly, he asserted that the MPA, as it
relates to the appreciation in the value of the house, was inequitable and should
not be enforced.1 After a hearing on the matter, the court concluded that the MPA
was valid.

¶6 Michael retained an accountant/valuation analyst named
Gaylene Stingl to apply the MPA to various financial records and opine as to the
amount owed to him. After Stingl submitted her report, Linda had her financial
advisor, Nicholas Enea, submit a rebuttal report. In it, Enea offered his own
interpretation of the MPA and records used by Stingl. Michael moved to exclude
Enea’s testimony under Daubert.2 Following another hearing, the circuit court
denied the motion and the case proceeded to a court trial.

1
Michael now insists that he did not seek to invalidate the MPA and never requested that
it be ruled not binding.
2
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

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No. 2019AP2435

¶7 At trial, the primary issue concerned the interpretation of the MPA
and its application to the Wind Lake house. Michael argued that he should receive
more than half of the appraised value of the house, which was valued at $561,000.
Meanwhile, Linda maintained that he was due a much smaller sum, amounting to
half of the payments on the mortgage principal and a portion of the payments he
made on a home equity line of credit spent on the improvement and maintenance
of the house.

¶8 Ultimately, the circuit court awarded Michael $58,293.37 as
reimbursement for his half of the mortgage payments and $28,717 for his half of
the expenditures made on the improvement and maintenance of the Wind Lake
house. From this amount, the court deducted $30,000, based on Michael’s
withdrawal of money from an account held at Schwab shortly after Linda told him
she was going to file for divorce.3 The court also found that it was “fair and
equitable” for Michael and Linda to keep the personal property in their possession
at the time of the divorce without offset or contribution from each other. Finally,
the court declined to award attorney’s fees to either party.

¶9 Michael moved for reconsideration of the circuit court’s decision,
which the court summarily denied. This appeal follows.

¶10 On appeal, Michael first contends that the circuit court erred in
denying his motion to exclude Enea’s testimony under Daubert. He accuses Enea
of bias and asserts that he lacked the necessary qualifications to testify as an expert
witness.

3
Michael withdrew $60,000 from the Schwab account. The circuit court determined that
the account was marital property, and Linda was entitled to half of it.

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No. 2019AP2435

¶11 We view the issue of expert testimony as largely a red herring in this
case. Again, the primary issue concerned the interpretation and application of an
MPA. An MPA is a contract and is analyzed applying the rules of contract
interpretation. Steinmann v. Steinmann, 2008 WI 43, ¶21, 309 Wis. 2d 29, 749
N.W.2d 145. It is unclear why expert testimony was needed for that analysis.

¶12 Even if the circuit court erred in admitting Enea’s testimony, we
conclude that the error was harmless. Enea’s testimony did not figure prominently
in the court’s decision. Indeed, the only time the court referred to it was in its
discussion of the principal reduction of the mortgage on the Wind Lake house
during the marriage. The court described Enea’s calculation as “helpful;”
however, because the mortgage was paid off by the time of trial, the court could
have arrived at a similar calculation on its own.

¶13 Michael next contends that the circuit court erred in its application of
the MPA to the Wind Lake house. He submits that he is entitled to far greater
compensation for his numerous contributions to the house.

¶14 The problem with Michael’s argument is twofold. First, the MPA
significantly limited his interest in the Wind Lake house by listing it as Linda’s
individual property and ensuring that any appreciation in its value would remain
Linda’s regardless of Michael’s labor or efforts. Second, to the extent that the
MPA permitted compensation for contributions, it was for payments towards the
reduction of the mortgage principal and expenditures made on improvement and
maintenance.4 The court awarded both of those here.

4
Michael also sought compensation for such things as interest paid on the mortgage and
property taxes; however, those types of expenses were not awardable under the MPA.

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No. 2019AP2435

¶15 Although Michael claims that it is impossible to determine how the
circuit court arrived at the figure of $28,717 for his half of the expenditures made
on improvement and maintenance, we disagree. The court arrived at that figure by
considering those items of improvement and maintenance for which Michael
provided values and comparing them with the items of improvement and
maintenance for which Linda conceded Michael was due compensation. This was
a reasonable approach, as Michael was unable to provide documentation for most
of the work and amounts that he claimed.5

¶16 Michael next contends that the circuit court erred in deducting
$30,000 from the amount it awarded him. He insists that the money he withdrew
from the Schwab account shortly before the divorce was individual property, not
marital property.

¶17 According to the MPA, the parties’ individual property was property
owned at the time of the marriage, property acquired by gift or inheritance, and
any income from, appreciation of, or property received in exchange for, such
individual property. Contributions to deferred employment benefits were also
designated individual property. Because there was no evidence that the Schwab
account fell within one of these categories, we are satisfied that the circuit court
properly treated it as marital property and ordered the $30,000 deduction.

¶18 Michael next contends that the circuit court erred in its handling of
the couple’s personal property. He faults the court for not adopting his valuation

5
Michael described his record keeping as “loosey-goosey” and acknowledged that he
was “not a real big paper saver.”

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No. 2019AP2435

of the property and for not giving him items in Linda’s possession that he
requested at trial.

¶19 Again, there are multiple problems with Michael’s argument. As
noted by Linda, while Michael hired a personal property appraiser to provide an
appraisal of items at the Wind Lake house, he refused to have an appraisal of the
items he took from the house despite Linda’s request for one.6 Furthermore,
Michael was given multiple opportunities to claim and collect additional items
from the house and failed to do so. Given these difficulties, the court reasonably
resolved the situation by allowing the parties to keep the personal property in their
possession at the time of the divorce without offset or contribution from each
other.

¶20 Finally, Michael contends that the circuit court erred in declining to
award attorney’s fees to him. He submits that he is entitled to fees based upon an
alleged discovery violation—specifically, Linda’s failure to admit that a truck in
his possession was received as a gift from his mother.

¶21 Michael’s argument for attorney fees is not particularly well-
developed. Moreover, it does not appear that he adequately raised it before the
circuit court, which is required for appellate review. See State v. Caban, 210

6
Linda provided a list of items that Michael took from the Wind Lake house, which
included artwork, all the lower-level office furniture, all weight room equipment, drawer chests
and cabinets from the garage, a gun safe, a furnace, all tools, all hunting and fishing equipment, a
lawn mower and other lawn tools, a snowblower, coolers, two dressers, file cabinets, mirrors, an
inversion table, a television, a laptop, a small table and chair set, a bicycle, a canoe, and a
rowboat.

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No. 2019AP2435

Wis. 2d 597, 604, 563 N.W.2d 501 (1997). Accordingly, we cannot say that the
court erred in declining to award attorney’s fees.7

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2019-20).

7
To the extent we have not addressed an argument raised by Michael on appeal, the
argument is deemed rejected. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261
N.W.2d 147 (1978).

8