In re the marriage of: Shirley Ann Rogahn Wenzel, Petitioner-Respondent-Cross-Appellant,
Jeffery Thomas Wenzel, Respondent-Appellant-Cross-Respondent.
and CROSS-APPEAL from an order of the circuit court for
Milwaukee County, No. 2014FA001997 PAUL R. VAN GRUNSVEN,
Brennan, P.J., Kessler and Dugan, JJ.
Jeffery Thomas Wenzel appeals from that part of the circuit
court's order which denied his motion for relief from
judgment based on financial documents turned over to him by
his former wife, Shirley Ann Rogahn Wenzel. Shirley also
cross-appeals from that part of the circuit court's order
which denied her motion for sanctions.
On appeal, Jeffery contends that, in denying the motion for
relief from judgment, the postjudgment court erroneously
exercised its discretion and erred as a matter of law by
creating new requirements for relief. We disagree and,
therefore, affirm that portion of the order.
On cross-appeal, Shirley contends that, in denying the motion
for sanctions, the postjudgment court applied an incorrect
legal standard by applying the test applicable to fees and
costs in a divorce action, rather than applying the test for
sanctions for frivolousness. We agree and, therefore, reverse
the order denying Shirley's sanctions motion and remand
for further proceedings consistent with our directions.
The following procedural history and facts provide helpful
background. The discussion includes additional relevant facts
The parties had a long-standing relationship that began in
1987. The two began living together in 1989, built a home
together in 1990, and resided in that home beginning in 1991.
The parties were married on February 10, 2002. Throughout
their relationship they maintained one joint checking
account. Each of them also had a personal checking account.
In April 2013 they separated.
Shirley filed for divorce on April 1, 2014. On the July 2,
2015 trial date, before any evidence was presented, the trial
court summarized the posture of the case, explaining that
although the parties had attempted to reach a stipulation and
agreed on asset value, they were unable to agree on
maintenance and property division. The parties agreed that
the summary was accurate. The trial court reminded the
parties that "the law in this State is very clear that
assets acquired during the marriage and before the marriage
are a part of the marital estate to be considered for
division by the [c]ourt." It noted that there are
specific exemptions, including an exemption for gifts, and
that a party arguing for an exemption had the burden of
During counsel's opening statements, Shirley stated she
wanted a 50/50 split of assets. She noted that Jeffery
claimed that certain funds had been gifted, but she had never
received any supporting proof that "these assets were
gifted in any way" and that she did not believe that he
could meet his burden of proof.
Jeffery stated he wanted to exclude certain funds totaling
over $100, 000 from the property division asserting that they
were nonmarital, claiming that they had been gifted by his
parents, were always separate from other assets, and were
never drawn on during the marriage.
Prior to taking any testimony, the trial court had the
following discussion with counsel regarding Jeffery's
[Trial Court] [Shirley's attorney] says she's going
to argue that all of the assets are in and should be divided.
She says you've offered nothing to her to allow her to
determine whether assets have been gifted or inherited and
statutorily exempt. Why would we be having that type of an
argument today, and why won't they have been provided
with that information?
[Jeffery's Attorney] I don't see anything - Judge,
again, I came in right before the final pretrial, but I see
nothing in the discovery that requested any admissions or
anything in terms of discovery regarding if this was gifted
[Trial Court] Okay. But you've -
[Jeffery's Attorney] That's -
[Trial Court] - you've got the burden, and why
wouldn't you tell them that?
[Jeffery's Attorney] In my - in my client's request
to admit that was prepared by previous counsel, they asked
specific questions specifically asking if they were gifted,
and several of these assets, and the answer was denied due to
lack of information. So the question was asked, Judge.
It's not like this is some new issue.
[Trial Court] Well, but that puts you on notice that they
don't know and maybe you should tell them so that we
don't have to have this discussion today.
[Jeffery's Attorney] Well -
[Shirley's Attorney] Your Honor, if I could, my request
for production of documents requested documentation
substantiating that these were gifted. And what I got back
was just statements with his name on from the account,
nothing proving any gift.
[Trial Court] What have you got other than his word, Counsel?
[Jeffery's Attorney] That's what we have, your Honor.
[Trial Court] Are they deceased? No? Your parents are not,
but they're not witnesses ...