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COURT OF APPEALS
NOTICE
DECISION
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.
December 8, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                      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.
                                                                                                                                                       Cir. Ct. No.   2003FA137
Appeal No.                                                          2004AP2115
STATE OF WISCONSIN                                                                                                                                     IN COURT OF APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
BARBARA J. DELZER,
PETITIONER-RESPONDENT,
V.
DONALD L. DELZER,
RESPONDENT-APPELLANT.
APPEAL from a judgment of the circuit court for Jefferson County:
RANDY R. KOSCHNICK, Judge.  Affirmed.
Before Lundsten, P.J., Dykman and Higginbotham, JJ.
¶1                                                                  PER CURIAM.    Donald Delzer appeals a judgment of divorce.   He
argues:                                                             (1) that the circuit court erred in finding as a matter of fact that the parties




No.   2004AP2115
did not have an oral agreement governing the division of property at divorce;
(2) that the circuit court erred as a matter of law when it concluded that oral
marital property agreements are not binding in Wisconsin; and (3) that the circuit
court misused its discretion in dividing the parties’ property.    We reject these
arguments and affirm.
¶2                                                                                         Donald first argues that the circuit court erred as a matter of fact in
finding that the parties did not have an oral agreement regarding property division.
Donald testified that they had an agreement, but the circuit court found that “[his]
testimony concerning the oral agreement was not particularly clear or precise.”
Barbara testified that there was no agreement.   The circuit court found that her
testimony on this point was unequivocal.   Barbara also testified that Donald never
told her that he was reluctant to marry due to money issues.   After considering the
testimony from both parties, the circuit court concluded that Barbara was more
credible.                                                                                  “[W]hen the trial judge acts as the finder of fact, and where there is
conflicting testimony, the trial judge is the ultimate arbiter of the credibility of the
witnesses.”   Gehr v. City of Sheboygan, 81 Wis. 2d 117, 122, 260 N.W.2d 30
(1977).
¶3                                                                                         Donald argues that his testimony mandates a conclusion that there
was an oral agreement.   We conclude, however, that he has not shown that the
circuit  court’s  factual  findings,  which  were  based  largely  on  credibility
determinations, were clearly erroneous.   Because Donald has not met the requisite
legal standard for relief, we reject his argument that the circuit court erred in
finding as a matter of fact that there was no oral agreement.
¶4                                                                                         Donald next argues that the circuit court erred in concluding that oral
marital property agreements are not enforceable in Wisconsin.   Because we have
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No.   2004AP2115
affirmed the circuit court’s finding that no such agreement existed, we need not
address this issue.
¶5                                                                                        Donald next challenges the circuit court’s property division.   The
circuit  court  must  begin  with  a  presumption  that  marital  property  should  be
divided equally.   WIS. STAT. § 767.255(3) (2003-04);1 LeMere v. LeMere, 2003
WI 67, ¶16, 262 Wis. 2d 426, 663 N.W.2d 789.   “A circuit court may deviate from
the presumption of equal property division, but only after considering a lengthy
and detailed list of statutory factors.”   LeMere, 262 Wis. 2d 426, ¶16.   We will
uphold the circuit court’s decision regarding a property division so long as the
court “‘examined the relevant facts, applied a proper standard of law, and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could
reach.’”   Garceau v. Garceau, 2000 WI App 7, ¶3, 232 Wis. 2d 1, 606 N.W.2d
268 (Ct. App. 1999) (quoting Long v. Long, 196 Wis. 2d 691, 695, 539 N.W.2d
462 (Ct. App. 1995)).
¶6                                                                                        Donald  contends  that  the  circuit  court’s  property  award  was
inequitable to him.   He contends the court should have awarded him a larger share
of the property because he brought  $400,000 to the marriage, and the increase
during the marriage in the equity of the real estate he owned is attributable to his
efforts.   The circuit court credited each party for the value of the property they
brought into the marriage, but divided equally the increase in value of the property
during the marriage.   Taking into account the amounts the parties were awarded
because  of  the  amounts  each  brought  to  the  marriage,  Donald  received
1  All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise
noted.
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No.   2004AP2115
approximately  66% of the marital estate at divorce, or  $725,000, and Barbara
received approximately 34%, or $375,000.
¶7                                                                                           The circuit court divided equally the increase in equity during the
marriage  of  the  property  Donald  owned  because  it  found  that  both  parties
contributed equally to the marriage.   Although Donald contends that the circuit
court  gave  excessive  weight  to  Barbara’s  contributions,  our  review  of  the
testimony  shows  that  the  circuit  court’s  finding  that  the  parties  contributed
equally, albeit in different ways, is amply supported by the fact that Barbara did
many tasks around the house, such as shopping, cleaning, laundry, painting, and
yard work, as well as helping manage the apartment building.   Because the circuit
court “examined the relevant facts, applied a proper standard of law, and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could
reach,” we conclude that the circuit court acted within the ambit of its discretion in
dividing the property as it did.   See Garceau, 232 Wis. 2d 1, ¶3 (citation omitted).
¶8                                                                                           Donald also challenges the property division by arguing that the
circuit court erroneously failed to consider certain facts in making its decision.   He
asserts that the circuit court failed to consider their ages.   We disagree.   The circuit
court’s decision specifically states that, at the time of divorce, Donald was 55 and
Barbara was 46.   Donald contends that the court failed to consider the parties’
practice of separating their financial affairs.   Again, we disagree.    The court’s
decision states that “[f]or the most part, the parties kept their finances separate,
consistent with Donald’s claim of an oral marital property agreement.”   The court
may not have given these facts the sort of weight Donald wishes it had, but the
court did consider the facts and was entitled to accord them little weight.
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No.   2004AP2115
¶9                                                                                    Finally, Donald contends that the court gave insufficient weight to
the property brought to the marriage by Donald.   We are not persuaded.   The court
gave Donald credit by awarding him the substantial amount he brought to the
marriage.    Circuit courts have broad discretion to make property division and
maintenance decisions to achieve fairness and equity in individual cases.   Haugan
v. Haugan, 117 Wis. 2d 200, 211, 343 N.W.2d 796 (1984).   We cannot say that
the circuit court here misused this broad discretion.
¶10    Therefore,  we  reject  all  of  Donald’s  challenges  to  the  property
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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