Kelly A. Wink v. Craig S. Wink

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.
October 16, 2019
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. 2018AP1585 Cir. Ct. No. 2016FA341

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN RE THE MARRIAGE OF:

KELLY A. WINK,

PETITIONER-APPELLANT,

V.

CRAIG S. WINK,

RESPONDENT-RESPONDENT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: ROBERT J. WIRTZ, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

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. 2018AP1585

¶1 PER CURIAM. Kelly Wink appeals from a judgment of divorce
from Craig Wink. On appeal, Kelly challenges the property division, a contempt
finding against her for failing to meet the expenses of living in the marital home
and an assessment of those expenses against her share of the property division, and
the denial of her request for a contribution to her attorney’s fees. We conclude
that the circuit court properly exercised its discretion in all respects. We affirm.

Property Division

¶2 Kelly argues that the circuit court misused its discretion when it
divided the parties’ property because the court did not acknowledge the
presumption of an equal division of property. Property division is discretionary
with the circuit court, and we review for a misuse of that discretion. Steinmann v.
Steinmann, 2008 WI 43, ¶20, 309 Wis. 2d 29, 749 N.W.2d 145.

¶3 While an equal division of property and debts acquired by the
spouses before or during the marriage is presumed, a circuit court may, in the
exercise of its discretion, consider and weigh other relevant factors that may yield
an unequal division of property under the circumstances. Id., ¶25; Derr v. Derr,
2005 WI App 63, ¶10, 280 Wis. 2d 681, 696 N.W.2d 170 (debts are divisible upon
divorce).

¶4 The circuit court awarded $552,672 to Craig and $219,424 to Kelly
as property division. After holding Kelly responsible for $14,224 in marital home
expenses imposed as a result of the circuit court’s contempt finding, the court
ordered an equalization payment from Craig to Kelly of $155,200.

¶5 In dividing the parties’ property and debt, the circuit court employed
the following framework. The court deemed all property marital, except if such

2
No. 2018AP1585

property was acquired by gift or inheritance. With regard to the marital property,
the court considered (1) whether the asset or debt was owned or owed by a party
prior to marriage and (2) whether the asset or debt had a marital component as a
result of the application of marital income or effort during the marriage. The court
noted that the parties’ thirteen-year marriage was Kelly’s second marriage and
Craig’s third marriage. The record contained evidence that during the marriage,
the parties kept their financial affairs separate and managed and controlled their
own finances without keeping the other spouse apprised.

¶6 Throughout its property division decision, the circuit court
considered which party brought the property to the marriage, the source of funds
used to acquire the property or devoted to the property during the marriage, and
whether those funds pre-dated the marriage. Using these factors, the court divided
each asset accordingly. As an example of this framework, we cite the court’s
approach to the marital home on North Country Lane: the court found the value of
the home ($456,300) and found that the purchase was partially funded by the sale
of a home on Dogwood Lane owned by Craig before the marriage ($86,852 in
proceeds applied). The court valued the divisible marital property component of
the marital home at just shy of $369,448. The court performed the same analysis
on other property, including Craig’s chiropractic business, and various debts.1
With the exception of the court’s treatment of Kelly’s outstanding student loans,
as discussed below, Kelly does not dispute the court’s specific approach to any

1
Having made findings that the parties’ maintained separate financial lives, the circuit
court also found that Kelly did not contribute toward Craig’s chiropractic business, and she did
not pay her student loans during the marriage.

3
No. 2018AP1585

individual debt or item of property. Rather, she and we focus on the court’s
overall framework for the property division.

¶7 As stated, a circuit court has discretion to consider numerous factors
in formulating a property division. WIS. STAT. § 767.61(3). Among those factors
are the length of the marriage, the contribution of each party to the marriage, the
property brought to the marriage by the parties, and any other factors deemed
relevant under the circumstances. Sec. 767.61(3)(a), (b), (d), (m). A factor
relevant under the circumstances may include how the parties conducted their
financial lives during the marriage. See Schmitt v. Schmitt, 2001 WI App 78, ¶18,
242 Wis. 2d 565, 626 N.W.2d 14. These are the factors upon which the court in
this case placed the greatest weight. LeMere v. LeMere, 2003 WI 67, ¶25, 262
Wis. 2d 426, 663 N.W.2d 789 (a circuit court may give the factors different and
unequal weight).

¶8 Given the evidence in the record that the parties maintained separate
financial lives during the marriage2 and that Craig brought property to the
marriage, the circuit court did not misuse its discretion in considering these factors
and using them as a framework for dividing the parties’ property and debt.
“[D]ivorce actions are equitable in nature.” Seng Xiong v. Vang, 2017 WI App
73, ¶39, 378 Wis. 2d 636, 904 N.W.2d 814. Under the facts of this case, we
affirm the court’s property division framework as equitable.

2
Craig testified that Kelly’s income was generally not used to support the household.
Rather, Kelly used her income for her personal expenses and the expenses of her children from a
prior relationship. The record also contains evidence that on more than one occasion, Craig
assisted Kelly in paying off credit card and other debt she accumulated.

4
No. 2018AP1585

¶9 Kelly specifically challenges the circuit court’s decision to make her
solely responsible for the $140,000 in student loan debt she incurred almost
entirely prior to the marriage.3 The court expressed disbelief that no payments
were made on this debt even though there were resources to make such payments
during the marriage. Although Kelly conceded that she currently owed all of her
student loan debt, she testified about a scenario under which she would owe less
due to a debt forgiveness program. The court found that scenario speculative
because Kelly had not done anything to avail herself of the debt forgiveness
program. The court considered appropriate relevant evidence when it decided to
allocate all of Kelly’s student loan debt to her. We see no misuse of discretion.

Contempt

¶10 At the commencement of the divorce, Kelly asked for certain
temporary orders relating to the parties’ living expenses and arrangements. Kelly
desired to remain in the marital home. The circuit court recognized that the
parties’ income was not sufficient to meet the expenses of two households and
cautioned the parties to consider the economic consequences of separate
households. The court considered the benefit to the parties’ minor child of being
able to reside in the home. The court deemed the marriage of medium length and
considered that each party could choose where to live during the pendency of the
divorce. However, the court warned that a party’s choice would come with the
financial consequences of that choice. The court ordered that if Kelly was going

3
As a result of accumulating interest and a failure to make any payments against the
students loans, the date-of-divorce balance on Kelly’s student loan debt was approximately
$250,000. Kelly testified that she incurred one-semester’s student loan after the marriage. The
circuit court stated that it did not find this particular testimony compelling as it considered how to
allocate Kelly’s student loan debt.

5
No. 2018AP1585

to remain in the home, she had to bear the costs of living there (mortgage, taxes,
and insurance costs).4 The court stated that if Kelly determined that she could not
remain in the marital home under the terms set by the court, she could move out
and give Craig the option of moving into the home.

¶11 When Kelly failed to pay the expenses of living in the marital home,
Craig sought a contempt ruling and an order requiring Kelly to vacate the home.
Craig stated that he made various payments, including mortgage payments, to
avoid a default. At a hearing on Craig’s motion, the circuit court found that Kelly
had not paid $14,224 in expenses incurred while she was living in the home.
Kelly argued that she did not have the financial ability to pay these expenses, and
the court knew at the time it required her to pay these expenses that she could not
afford to do so. The court reiterated its view, expressed at the time it entered the
order requiring Kelly to pay the expenses of living in the marital home, that two
cannot live as cheaply as one, and if Kelly wanted to live in the home, she had to
bear the expenses of doing so. The court further observed that it “took longer than
necessary” for Kelly to move out of the home for financial reasons. Kelly
conceded that if the court was going to enforce the requirement that she pay
expenses, then it would be appropriate to offset the expenses against her share of
the property division. The court imposed no other consequence upon Kelly other
than requiring her to pay the expenses she incurred: $14,224.

¶12 On appeal, Kelly does not dispute that she failed to pay the expenses
associated with living in the home as required by the circuit court. However, she

4
The circuit court also entered orders requiring Craig to pay Kelly $1800 per month as
child support and $500 per month as spousal support.

6
No. 2018AP1585

argues that the court did not make the findings necessary for contempt. We are
not required to address an appellate argument in the manner which a party has
framed the issue. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261
N.W.2d 147 (1978). Because the court imposed no other consequence upon Kelly
other than requiring her to pay the expenses assigned to her as an offset against her
share of the property division, we do not address any of Kelly’s arguments
regarding alleged defects in the contempt procedure. Rather, we consider whether
the court’s decision to enforce its order that Kelly pay the home-related expenses
was a proper exercise of discretion. Cf. Kustelski v. Taylor, 2003 WI App 194,
¶15, 266 Wis. 2d 940, 669 N.W.2d 780 (enforcing scheduling orders is
discretionary with the circuit court). We conclude that it was.

¶13 Kelly argues that the circuit court’s order assigning the home’s
expenses to the party living there was unreasonable in light of the cost of living in
the home, Kelly’s resources, and the amount of monthly support Craig was
ordered to pay, all of which left Kelly short of funds to meet home-related
expenses. Kelly argues that she was placed in a financially impossible situation
for which she should not have been sanctioned. We disagree. Kelly wanted to
live in the marital home, and the court granted that request but imposed upon her
the cost of living in the home, noting that if she decided she could not afford to
live in the home, she could give Craig the opportunity to do so. The court
properly enforced its order when it held Kelly responsible for the expenses she
agreed to take on by living in the home. We see no misuse of discretion.

Attorney’s Fees

¶14 The circuit court denied Kelly’s request that Craig contribute to her
attorney’s fees because neither party engaged in overtrial or pursued frivolous

7
No. 2018AP1585

issues or claims. Kelly argues that the court did not expressly consider her need
for a contribution, Craig’s ability to make a contribution, and the reasonableness
of the fees requested. See Holbrook v. Holbrook, 103 Wis. 2d 327, 343, 309
N.W.2d 343 (Ct. App. 1981). Craig concedes that the court did not make findings
on these points, but he argues that the court nevertheless properly exercised its
discretion in denying Kelly’s request that Craig contribute to her attorney’s fees.
See Johnson v. Johnson, 199 Wis. 2d 367, 377, 545 N.W.2d 239 (Ct. App. 1996).
“Although the proper exercise of discretion contemplates that a court explain its
reasoning, … we may search the record to determine if it supports the
court’s discretionary decision.” Randall v. Randall, 2000 WI App 98, ¶7, 235
Wis. 2d 1, 612 N.W.2d 737.

¶15 As evidence of her need for a contribution to her attorney’s fees, Kelly
cites the debt assigned to her, including her student loan debt. The decision to
deny Kelly’s request for a contribution to her attorney’s fees must be understood
in the context of the circuit court’s finding that the parties maintained separate
financial lives and the reasons the court assigned Kelly her student loan debt.
When considered in the context of the record, including Kelly’s handling of her
student loan obligation, the largest share of the debt she was assigned,5 the court
did not err when it failed to expressly consider that this debt might impact Kelly’s
ability to pay her attorney’s fees. We will not disturb a discretionary decision
unless the circuit court exercised its discretion with no reasonable basis. Andrew
J.N. v. Wendy L.D., 174 Wis. 2d 745, 766, 498 N.W.2d 235 (1993). The record

5
Kelly was to receive an equalization payment of $155,200. In addition to her student
loan debt, Kelly was also assigned debt of approximately $13,000. She requested a $20,000
contribution to her approximately $40,000 in attorney’s fees.

8
No. 2018AP1585

shows a reasonable basis for denying Kelly’s request for a contribution to her
attorney’s fees.

By the Court.—Judgment affirmed.

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

9