Amara Gerger v. Yajaira Vanessa Avila Gerger

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.
July 18, 2023
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. 2021AP1647 Cir. Ct. No. 2020IN10

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE ESTATE OF JOSEPH ANDREW ROBERT GERGER:

AMARA GERGER, ALICE GERGER AND GABRIEL GERGER,

APPELLANTS,

V.

YAJAIRA VANESSA AVILA GERGER,

RESPONDENT.

APPEAL from a judgment of the circuit court for Langlade County:
JOHN B. RHODE, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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. 2021AP1647

¶1 PER CURIAM. Three of decedent Joseph Gerger’s children—
Amara Gerger, Alice Gerger, and Gabriel Gerger—appeal a judgment granting a
“Petition for Decedent’s Interest in Home” filed by Joseph’s widow, Yajaira
Vanessa Gerger.1 The children argue that the circuit court erred by reforming a
real estate deed to provide Vanessa a survivorship marital interest in the couple’s
home, thereby entitling her to the proceeds from the home sale. For the reasons
discussed below, we affirm the judgment.

BACKGROUND

¶2 Joseph and Vanessa were married on February 5, 2018. In the
summer of that year, the couple decided to move away from Milwaukee, and they
toured a number of homes together. On July 31, 2018, they purchased a home in
Antigo for $90,000. Joseph used money he had inherited from his grandmother to
pay for the home in cash. The deed to the home listed only Joseph as the grantee,
and it identified him as being single despite his marriage to Vanessa. Vanessa did
not sign any documents related to the closing, and she was not present at the
closing because she was home “pregnant and sick.” According to Vanessa, upon
his return from the closing, Joseph handed Vanessa the deed and stated, “This is
your house.”

¶3 Joseph and Vanessa both maintained the home while they lived
there. On May 25, 2020, Joseph died intestate. The home, which was Joseph’s
only significant asset, was sold a month later for approximately $85,000.

1
Because the parties share a surname, we will refer to the appellants as “the children”
and the respondent as “Vanessa.” The three children litigating this matter were born from
Joseph’s previous relationships. Joseph shared a fourth child with Vanessa.

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¶4 Joseph’s sister filed an “Application for Informal Administration” of
the Estate, and Vanessa subsequently filed the underlying “Petition for Decedent’s
Interest in Home,” seeking the proceeds of the home sale pursuant to WIS. STAT.
§ 861.21 (2021-22),2 which governs the assignment of a home to a surviving
spouse. The children objected to Vanessa’s petition. After a bench trial, the
circuit court determined that Vanessa was entitled to equitable relief and
consequently reformed the deed to include Vanessa as a grantee, thereby making
the home survivorship marital property. This appeal follows.

DISCUSSION

¶5 A court in equity may reform written instruments that, by mutual
mistake, do not express the true intentions of the parties. Chandelle Enters., LLC
v. XLNT Dairy Farm, Inc., 2005 WI App 110, ¶18, 282 Wis. 2d 806, 699 N.W.2d
241. The party seeking reformation must offer clear and convincing proof that
both parties intended to make a different instrument and had agreed on facts that
were different than those set forth on the instrument. Id. A circuit court’s
decision to grant equitable relief is reviewed under the erroneous exercise of
discretion standard. Pietrowski v. Dufrane, 2001 WI App 175, ¶5, 247 Wis. 2d
232, 634 N.W.2d 109. We will not reverse a discretionary decision of the circuit
court when it applies the correct legal standard to a reasonable view of the facts of
record and reaches a conclusion a reasonable judge could reach. Rodak v. Rodak,
150 Wis. 2d 624, 631, 442 N.W.2d 489 (Ct. App. 1989). The court’s findings of

2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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fact will not be set aside unless they are clearly erroneous. WIS. STAT.
§ 805.17(2).

¶6 When a decedent spouse’s property arrangements were made in
fraud of the survivor’s rights, equitable relief to a surviving spouse is also
available pursuant to WIS. STAT. § 861.17(1). The application of a statute to a
particular set of facts is a question of law that we review de novo. Armour v.
Klecker, 169 Wis. 2d 692, 697, 486 N.W.2d 563 (Ct. App. 1992).

¶7 Here, the children argue that there was no fraud or mutual mistake
justifying reformation of the deed. The deed, however, listed Joseph as being
single when he was, in fact, married. Whether his listing as single was the result
of fraud by Joseph or anybody else is unclear. In any event, it was certainly a
mistake.

¶8 The children nevertheless claim that the circuit court erred by
reforming the deed based, in part, on its conclusion that “the language of the deed
does not express any intent to characterize the property as something other than
survivorship marital property.” According to the children, this conclusion
disregards the language of the deed as it was written because the deed does not
include the words “survivorship marital property” or otherwise include Vanessa’s
name. The children also argue that the deed’s identification of Joseph as being
single evinced his intent that the property remain his alone.

¶9 The children’s argument, however, ignores the application of WIS.
STAT. § 766.605 to the facts of this case. That statute provides, in relevant
part: “A homestead acquired after the determination date which, when acquired, is
held exclusively between spouses with no [third] party is survivorship marital
property if no intent to the contrary is expressed on the instrument of transfer or in

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a marital property agreement.” The “determination date” under these facts is
defined as the date the parties married. See WIS. STAT. § 766.01(5).

¶10 Here, the home was purchased after Joseph and Vanessa were
married, and it was held exclusively by the couple. The deed identified the home
as “homestead property,” and the couple paid for expenses related to the home
from a joint credit union account. There was no evidence of any agreement
between the parties, such as a marital property agreement, specifying that the
home was anything other than survivorship marital property. Likewise, nothing
on the deed demonstrated an intent to hold the property as anything other than
survivorship marital property. To the extent the children emphasize that the
couple were married only six months before the home purchase and resided there
for only twenty-two months before Joseph’s death, those facts are immaterial to
determining whether a homestead is survivorship marital property under WIS.
STAT. § 766.605.

¶11 The children assert that the deed’s reference to Joseph as being
single signifies his intention that the house remain individual property. We
disagree. In Droukas v. Estate of Felhofer, 2014 WI App 6, 352 Wis. 2d 380,
843 N.W.2d 57 (2013), vacant property was titled in two individuals’ names as
single persons. Id., ¶2. The individuals, who were in a relationship, began
construction of a home on the property and married during the home’s
construction. Id., ¶4. The couple then lived in the home for approximately eleven
years, until the husband’s death. Id., ¶¶4-5. Although the facts of that case differ
from the present matter, the decision is instructive.

¶12 This court addressed whether the home was survivorship marital
property, holding that “[t]he use of the phrase ‘single persons’ [on the property

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deed] simply describe[d] a fact: that at the time they purchased the vacant lot, [the
parties] were not married.” Id., ¶32. The court added that the term “single
persons [did] not represent a classification of property ownership of any kind, to
wit, tenancy in common, joint tenancy, marital property, or any other recognized
classification.” Id. Because “single persons” failed to express any recognized real
property classification, it was not evidence of an intent on the part of the parties.
Id. Similarly, Joseph’s identification as being single on the deed is not evidence
of an intent to maintain the home as his individual property.

¶13 The children also contend that Joseph’s decision to purchase the
home with a portion of his inheritance evinced his intent for the home to remain
his individual property. Citing WIS. STAT. § 766.31(8), the children argue that the
circuit court ignored the exception to the marital property presumption that
governs rights to property acquired before the determination date—in this case, the
marriage. That subsection provides:

Except as provided otherwise in this chapter, the
enactment of this chapter does not alter the classification
and ownership rights of property acquired before the
determination date or the classification and ownership
rights of property acquired after the determination date in
exchange for or with the proceeds of property acquired
before the determination date.

Sec. 766.31(8) (emphasis added). The children maintain that Joseph exchanged
individual property received prior to the marriage for other individual property
after the marriage, and that his property can be easily traced.

¶14 Here, however, WIS. STAT. § 766.31(8) does not control because
WIS. STAT. § 766.605 specifically provides that the homestead is classified as
survivorship marital property.

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¶15 The children also assert that testimony given by Joseph’s sister,
Christina Lozano, supports their contention that Joseph intended to maintain the
home as individual property. At trial, Lozano testified that Joseph called her after
the closing and, during that conversation, she asked whose name was on the deed.
According to Lozano, Joseph responded, “Mine,” adding that “[n]obody’s taking
shit from me … like it happened to you”—a reference to events that apparently
occurred when Lozano purchased a home in her husband’s name. The circuit
court, as the fact finder, was entitled to weigh the witnesses’ testimony and
determine their credibility. See Micro-Managers, Inc. v. Gregory, 147 Wis. 2d
500, 512, 434 N.W.2d 97 (Ct. App. 1988).

¶16 Moreover, as the circuit court noted, if, as Lozano testified, Joseph
intentionally identified himself as being single in order to ensure the property
remained with him if he and Vanessa divorced, “then he definitely engaged in a
fraudulent transfer, which [would] entitle[] Vanessa to the equitable relief
[sought].” Ultimately, the evidence and the reasonable inferences available
therefrom provide a sufficient basis for the court’s discretionary decision to grant
Vanessa equitable relief, even if reasonable opposing inferences were available.

¶17 Citing Estate of Carroll v. Ansley, 2001 WI App 120, 244 Wis. 2d
280, 628 N.W.2d 411, and its application of WIS. STAT. § 852.01, the children
alternatively contend that Joseph’s half of the marital property should be
distributed consistent with the basic rules for intestate succession. As the circuit
court recognized, it is unclear whether the property discussed in Estate of Carroll
included a homestead. In any event, WIS. STAT. § 852.09 provides: “If the
intestate estate includes an interest in a home, assignment of that interest to the
surviving spouse or surviving domestic partner is governed by [WIS.
STAT. §] 861.21,” the statute under which Vanessa petitioned for an interest in the

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home. That statute provides that subject to exceptions that do not appear to apply
here:

[I]f a married decedent … has a property interest in a
home, the decedent’s entire interest in the home shall be
assigned to the surviving spouse … if the surviving
spouse … petitions the court requesting such a distribution
and if a governing instrument does not provide a specific
transfer of the decedent’s interest in the home to someone
other than the surviving spouse…. The surviving
spouse … shall file the petition within 6 months after the
decedent’s death, unless the court extends the time for
filing.

Sec. 861.21(2).

¶18 The children argue that even if the home is assigned to Vanessa, she
must pay the value of Joseph’s interest in the home to Joseph’s estate, for
distribution according to the rules for intestate succession. The children’s
arguments regarding intestate succession, however, are irrelevant where, as here,
the property is “survivorship marital property.” See Droukas, 352 Wis. 2d 380,
¶¶10, 13 (noting that survivorship marital property under WIS. STAT. § 766.605 is
exempt from the rules of intestate division).

By the Court.—Judgment affirmed.

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

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