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In re Marriage of Wenzel

Court of Appeals of Wisconsin, District I

October 24, 2017

In re the marriage of: Shirley Ann Rogahn Wenzel, Petitioner-Respondent-Cross-Appellant,
v.
Jeffery Thomas Wenzel, Respondent-Appellant-Cross-Respondent.

         APPEAL and CROSS-APPEAL from an order of the circuit court for Milwaukee County, No. 2014FA001997 PAUL R. VAN GRUNSVEN, Judge.

          Before Brennan, P.J., Kessler and Dugan, JJ.

          DUGAN, J.

         ¶1 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.[1]

         ¶2 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.

         ¶3 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.

         ¶4 The following procedural history and facts provide helpful background. The discussion includes additional relevant facts as needed.

         BACKGROUND

         ¶5 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.

         ¶6 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 proof.

         ¶7 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.

         ¶8 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.[2]

         ¶9 Prior to taking any testimony, the trial court had the following discussion with counsel regarding Jeffery's claim:

[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 or not.
[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 ...

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