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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.
June 14, 2011
A party may file with the Supreme Court a
A. John Voelker                                                                                                                                         petition to review an adverse decision by the
Acting Clerk of Court of Appeals                                                                                                                        Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                        and RULE 809.62.
                                                                                                                                                        Cir. Ct. No.   2006FA2649
Appeal No.                                                                           2008AP2527
STATE OF WISCONSIN                                                                                                                                      IN COURT OF APPEALS
                                                                                                                                                        DISTRICT I
IN RE THE MARRIAGE OF:
KACHI YANG,
PETITIONER-APPELLANT,
V.
DAO YANG,
RESPONDENT-RESPONDENT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:   MAXINE A. WHITE, Judge.  Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1                                                                                   CURLEY, P.J.      Kachi Yang appeals the order supplementing the
trial court’s judgment of divorce granted earlier to Kachi and her former husband,




No. 2008AP2527
Dao Yang.1   Kachi argues the trial court erred in determining that Dao did not
commit waste when he sold a half interest in twenty acres of farmland for $50,000
or when he withdrew $171,000 over the course of several years from a Landmark
Credit Union account.   She also contends the trial court erred in not finding that all
of Dao’s trips to Laos constituted waste.   Because the trial court’s findings of fact
were not clearly erroneous and the trial court did not err in determining that, with
the  exception  of  monies  spent  by  Dao  on  three  trips,  Dao’s  actions  did  not
constitute waste, we affirm.
I.   BACKGROUND.
¶2                                                                                                      This  case  comes  to  us  after  remand.    Originally  the  trial  court
adopted a partial stipulation of the parties concerning custody and placement of
the minor children and divided certain property and debts of the parties.   However,
several matters remained unresolved and a bench trial was held.   Following the
trial court’s decision, Kachi appealed and we remanded the matter to the trial court
to  permit  the  court  to  make  additional  findings  of  fact  concerning  Kachi’s
contention that Dao committed waste.2
¶3                                                                                                      Kachi and Dao are both Laotian immigrants who were married in
1982.   Five minor children were living at the time of their divorce.   Dao obtained a
GED during the marriage and was the primary breadwinner for the family.   Kachi
was primarily responsible for keeping the family’s home, and did not obtain a
1  Because both of the parties have the same last name, we refer to them by their first
names.
2  Kachi also sought maintenance in the first appeal, despite the fact that the “Divorce
Judgment Addendum” attached to the divorce judgment indicates that maintenance is waived as
to both parties.  In any event, the issue of maintenance to Kachi has not been raised in this appeal.
2




No. 2008AP2527
GED, but she did work outside the home at the time of the divorce.   Prior to the
filing of the divorce the parties separated, reconciled, and then a domestic abuse
injunction  was  issued  against  Dao  requiring  him  to  vacate  the  family  home.
Several weeks later, in April 2006, Kachi filed for divorce, which was ultimately
granted in August 2008.   As noted, at the time of the default judgment of divorce
the parties entered into a partial stipulation that resolved many of the outstanding
issues.   The trial court held a trial on the remaining issues over the course of
several months, ultimately rendering a written decision.   Because the trial court
failed  to  make  the  necessary findings  of  fact  and  failed  to  apply  the  proper
statutory analysis to the question of whether Dao committed waste for certain
actions  he  took  during  the  marriage,  we  remanded  the  matter  for  further
consideration.   On remand, the trial court made additional findings and determined
that Dao did not commit waste, except for taking three trips to Laos, which the
trial court found to be excessive.
¶4                                                                                             The following facts pertinent to this appeal are set forth in the order
remanding this matter to the trial court.   See Yang v. Yang, No. 2008AP2527,
unpublished slip op. (WI App Feb. 4, 2010).   The parties acquired several pieces
of real estate during the marriage, including a one-half interest in twenty acres of
farmland in Franklin.   In April  2006  (the same month and year of the divorce
action being filed, but before Dao had been served), Dao sold the one-half interest
to one of his brothers for $50,000 (another brother owned the other fifty percent).3
Over a year later, Kachi obtained an appraisal of the property that valued the
3  The order remanding this matter mistakenly stated that Dao sold the one-half interest
for $100,000.  See Yang v. Yang, No. 2008AP2527, unpublished slip op. (WI App Feb. 4, 2010).
3




No. 2008AP2527
one-half interest at $75,000.   She contended that Dao committed waste when he
sold the property to a different brother for $25,000 less than the appraised value.
¶5                                                                                        Dao also took numerous trips to Laos.   Kachi testified that she did
not approve of these trips, although she did, sometimes, drive Dao to the airport.
His first trip was in July 2003.   It was the first of several multi-week trips that he
took over the next few  years.    Dao estimated that each trip cost  $4000, and
withdrawals from bank statements revealed that he withdrew substantial amounts
of money before each trip.   Four of the trips occurred either within one year of, or
subsequent to, the filing of the divorce petition.   Kachi argues that these monies
are subject to the rebuttable presumption found in WIS. STAT. § 767.63 (2009-10).4
Kachi was suspicious as to the reasons behind Dao’s need to take multiple trips.
Her suspicions were heightened when she found several photographs of Dao and
another woman that suggested they were in a romantic relationship.    Dao also
attempted to bring this woman into this country as a permanent visitor and he
admitted he opened a credit card in the woman’s name and sent her approximately
$1000.   Kachi claims that Dao misappropriated marital assets when paying for
these trips.
¶6                                                                                        Before the many trips to Laos, Dao’s paycheck had been deposited
into a joint account.   Within months of the first trip, Dao opened an individual
account at Landmark Credit Union and deposited his paycheck into that account.
Kachi did not have access to the Landmark account.   From the time the account
was opened in 2003 until it was closed in May 2007, Dao withdrew approximately
4  All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
noted.
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No. 2008AP2527
$171,000.   Dao claimed he used the money for marital expenses.   Kachi, on the
other hand, argued that this money was not used for a marital purpose and it
should be included in the marital estate and charged against Dao’s share.   The trial
court  determined  that  neither  the  sale  proceeds  of  the  twenty  acres  nor  the
$171,000 withdrawals constituted waste.    The trial court did find three of the
vacations to be excessive and charged  $12,000  ($4000 per trip) against Dao’s
property division.   Kachi appeals.5
II.   ANALYSIS.
¶7                                                                                               WISCONSIN STAT. § 767.61(3) creates a rebuttable presumption that
at  the  time  of  divorce  the  parties’  marital  property is  to  be  divided  equally,
although distribution may be altered by factors enumerated in the statute.   One
express consideration is what each party contributed to the marriage.   See WIS.
STAT. § 767.61(3)(d).   This factor allows the court to consider each party’s efforts
to preserve the marital assets.   See id.   The trial court may “consider each party’s
efforts to preserve marital assets,” and may  “require a party to pay the debts
caused by the squandering of the parties’ assets, or the intentional or neglectful
destruction of property, see Anstutz v. Anstutz, 112 Wis. 2d 10, 12, 331 N.W.2d
844  (Ct. App.  1983), by including in the marital estate the value of the assets
which would have been in the marital estate but for the waste, see Covelli v.
Covelli, 2006 WI App 121, ¶30, 293 Wis. 2d 707, 718 N.W.2d 260.   Additionally,
WIS. STAT. § 767.63 states that assets valued at more than $500 “transferred for
5  Numerous record citations in Kachi’s brief and in Dao’s brief do not reference the
record, in violation of WIS. STAT. RULE § 809.19(1) & (3).   We remind counsel that we have no
duty to scour the record to review arguments unaccompanied by adequate record citations.   See
Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990).
5




No. 2008AP2527
inadequate consideration, wasted, given away, or otherwise unaccounted for by
one of the parties within one  year prior to the filing of the petition  …  [are]
rebuttably presumed to be property subject to division under s. 767.61.”
¶8                                                                                         Property division is a matter within the sound discretion of the trial
court, and we will uphold its decision if the court “‘examined the relevant facts,
applied a proper standard of law, and, using a demonstrated rational process,
reached a conclusion a reasonable judge could reach.’”   See LeMere v. LeMere,
2003 WI 67, ¶13, 262 Wis. 2d 426, 663 N.W.2d 789 (citation omitted).   We accept
the trial court’s findings of fact if not clearly erroneous.   WIS. STAT. § 805.17(2).
We accord “great deference” to the trial court’s exercise of discretion.   Sievert v.
American Family Mut. Ins. Co., 180 Wis. 2d 426, 431, 509 N.W.2d 75 (Ct. App.
1993).   The reason for our deference is the trial court’s superior opportunity to
evaluate the evidence by observing the demeanor of witnesses and gauging the
persuasiveness of their testimony.   See Krolikowski v. Chicago & Nw. Transp.
Co., 89 Wis. 2d 573, 580-81, 278 N.W.2d 865 (1979).   The trial court is better
positioned than we are to resolve disputed factual issues and to draw reasonable
inferences from the facts it finds.   See id.   We generally look for reasons to sustain
a discretionary decision of the circuit court, see Loomans v. Milwaukee Mut. Ins.
Co., 38 Wis. 2d 656, 662, 158 N.W.2d 318 (1968), and “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.
¶9                                                                                         In  Waln  v.  Waln,  2005  WI  App  54,  ¶7,  280  Wis. 2d  253,  694
N.W.2d 452, this court held that deciding whether property is subject to division
involves  the  application  of  a  statute  to  uncontested facts and  thus presents a
question of law that we review independently.   Extrapolating from this holding,
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No. 2008AP2527
we determine that whether waste occurred here is also a question of law that we
review independently.
A.   The  trial  court  properly  exercised  its  discretion  in  determining  that  Dao
needed  to  sell  the  farmland,  and  correctly  found  that  Dao’s  actions
did not constitute waste.
¶10    Kachi’s first claim is that by selling the one-half  interest in the
farmland for $25,000 less than the appraised value, Dao committed waste.   Kachi
points out that the sale occurred during the one-year look-back pursuant to WIS.
STAT. § 767.63, and is rebuttably presumed to be property of the estate.
¶11    In  the  supplemental  order,  the  trial  court  made  the  following
findings:                                                                                  (1) when Dao sold the one-half interest in the farmland to his brother, he
made a $7500 profit; (2) when Dao sold the property, the divorce papers had not
yet been served on him; (3) Dao was homeless at the time of the sale and needed
money to find a place to live, both for himself and for his children, as he shared
the care of the children with Kachi; and  (4) only the one-half interest in the
property was for sale, so whoever bought it would own it with another brother.
With respect to the appraisal, the trial court found that the amount of the appraisal
was not totally reliable because:                                                          (1) it was obtained on the property over a year
after its sale; (2) the comparables were not an indication of the true value of the
property  because  the  comparables  were  located  in  better  locations,  in  close
proximity to laterals for sewer and water service, and offered greater development
potential; and (3) the farmland was a unique piece of property.   Discussing the
testimony of the appraiser, the trial court found that on cross-examination the
appraiser admitted that his appraisal contained a great deal of speculation and that
the property was highly unusual in a number of ways.
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No. 2008AP2527
¶12    Kachi faults the trial court’s findings in several respects.   She argues
that Dao did not have an urgent need to find housing, and, if he did, it was of his
own  making  because  he  was  obligated  to  vacate  the  family  home  after  the
domestic abuse injunction was entered.   Further, she argues that the trial court’s
finding that selling the property was a benefit to the estate was a clearly erroneous
finding.    As  to  the  appraisal,  Kachi  argues  that  the  trial  court  made  factual
mistakes  such  as  believing  that  the  farmland  was  zoned  agricultural,  not
residential, and in assessing the validity of the appraisal, Kachi contends that the
factors which the trial court used to deviate downward from the appraised amount
of $50,000 were all taken into account by the appraiser, and thus, were built into
the amount of the appraised value.   Further, Kachi argues that she never received
any proceeds from the sale because Dao put the proceeds of the sale into his
individual account, to which she had no access, and he withdrew these monies
during the pendency of the action.
¶13    We disagree with Kachi’s contentions.    We first observe that in
evaluating the trial court’s findings, it is obvious that the trial court believed Dao’s
testimony that  he  had  little  resources  with  which  to  obtain  housing  after  the
separation, but still had the responsibility for the care of his five children.   The
trial court also did not believe the purchase amount was unreasonable, inasmuch
as Dao made a profit on the sale and the sale price was identical to the city’s
appraised value for the property.   Also, this was not a typical sale because Dao
was  selling  only  a  one-half  interest  in  undeveloped  farmland,  and  whoever
purchased it would become a co-owner with Dao’s brother.   This would, in all
likelihood, restrict the number of prospective buyers and not command a high
price.   Further, the trial court could reasonably believe that the sale was a benefit
to the family because it permitted Dao, at least potentially, to quickly obtain
8




No. 2008AP2527
housing for himself and his children and it also eliminated the necessity of paying
a real estate commission had he sold it in the open market.   As it turned out, Dao
moved into the family home several months after the sale of the farmland.   This
occurred after Kachi voluntarily left it, taking all the appliances, furnishings and
children’s clothing.
¶14    Contrary  to  Kachi’s  contention  that  the  trial  court  mistakenly
believed that the farmland was zoned agricultural, the trial court clearly stated that
the farmland was “zoned as R-3 residential and being used as agricultural.”   In
addressing the appraisal of the farmland, the trial court observed that the appraisal
was not obtained contemporaneously with the sale.   The trial court was apparently
unimpressed with the appraisal because one of the findings states that the appraisal
“contained a great deal of speculation, and explanation about property that was
highly unusual in a number of ways.”   In addressing the appraisal, the trial court
wrote:
[I]t is reasonable to conclude that the farmland may have
declined in value since he completed the appraisal … The
appraiser’s reliance on three comparable sales which were
quite  dissimilar  to  this                                                              20  acre  agricultural  land  in  the
middle of a [c]ity, the fact that the three comparables had
the  potential  for  sewer  and  water  improvement  and
residential use were additional factors the Court considered
in concluding that the $50,000 sales price was reasonable
under the circumstances and did not constitute waste.
Finally, we observe that while Kachi insists that the trial court was obligated to
accept the appraiser’s valuation, this is incorrect.    The trial court was free to
disregard the testimony of  the only expert witness because  “[t]he weight and
credibility to be given to the opinions of experts is uniquely within the province of
the fact-finder”—in this instance, the trial court.   See Bauer v. Piper Indus., Inc.,
154 Wis. 2d 758, 764, 454 N.W.2d 28 (Ct. App. 1990).
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No. 2008AP2527
¶15    Next, Kachi complains that she never shared in the proceeds of the
sale.   The trial court found that Dao deposited $45,000 of the sale proceeds in his
Landmark Credit Union account.   The trial court found that Dao used the proceeds
of the sale of the farmland to pay the back property taxes and to restock the marital
home with all the appliances and furnishings, including beds and clothing for the
children that had been taken by Kachi when she moved out of the marital home.
While true that Kachi did not personally share in the proceeds, had Dao not had
the proceeds from the farmland to purchase needed items, in all likelihood he
would have had to petition the court for the release of funds or the sale of an asset
to pay the taxes in order to clothe his children and refurnish the household.   Given
Dao’s dire circumstances and his responsibilities, it is likely the trial court would
have granted his request.   Had this occurred, the marital estate would have been
depleted.
¶16    Ultimately, the trial court concluded that Dao did not commit waste
in selling the property for less than the appraised value:
(a)  The  Respondent  provided  credible  and  convincing
testimony when he testified that with the injunction in place
on  March  27,  2006,  he  was  homeless;                                               (b)  The  Court
concluded  that  the  Respondent  had  an  obligation  to
continue his Court ordered placement with the five children
and living in a small space with his parents, or cousins or
other  relatives  was  insufficient  accommodations  for  the
respondent  and  his  children;                                                         (c)  In  March    2006,  the
Respondent  needed  money  to  get  a  place  to  stay  and
purchasing rather than renting a place for five children was
a  reasonable  goal;                                                                    (d)  In  April    2006,  the  Respondent
intended to get money to purchase a home by selling his
interest in the farmland as quick[ly] as he could for as high
of a price as he could; (e) At the time that the [R]espondent
was  trying  to  sell  the  farmland,  the  Petitioner  had  not
vacated the family home; (f) Under these circumstances a
“quick” sale of the farmland was reasonable, justified and a
benefit for the estate.
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No. 2008AP2527
¶17    We accept the trial court’s findings of fact as they are not clearly
erroneous,  see  LeMere,  262  Wis.  2d  426,  ¶13,  and  under  the  circumstances,
conclude that Dao did not commit waste.
B.   The trial court properly determined that Dao’s taking one trip per calendar
year to Laos was not waste but more than one trip per year constituted waste.
¶18    Kachi complains that the trial court erred when it concluded that five
of Dao’s eight trips to Laos did not constitute waste.   This is so, according to
Kachi, because four of the eight trips occurred during the statutory look-back
period addressed in WIS. STAT. § 767.63, and thus, it was Dao’s burden—which,
according to Kachi, he did not meet— to prove the trips did not constitute waste.
Further, Kachi argues that the trial court should have looked at what the purpose
of the trips was, not the number.   Kachi contends that because Dao took these trips
to throw lavish parties and to have sexual trysts with other women, all the money
expended on these trips should have been added back into the marital estate.
Kachi also argues that the trial court’s finding that Dao took these trips to visit
family was clearly erroneous because his family lives in the United States.
¶19    Contrary  to  Kachi’s  claims,  Dao  testified  that  he  went  to  his
homeland for recreational purposes, to visit family and friends, and, according to
the trial court’s finding, “to help him handle the stress related to problems in his
marriage [which was] especially needed after the fall of 2005 to help him cope
with the lengthy period of strife, separation, litigation and ultimate breakdown of
his marriage.”   Dao also explained that the young woman who he tried to bring
over to this country was a friend and he helped her with her school expenses over
a number of years and the amount totaled no more than $1000.
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No. 2008AP2527
¶20                                                                                              In its conclusions of law, the trial court stated:
In judging the reasonable[ness] of the costs of the
vacations, the Court concludes that an appropriate factor
under  the  circumstances  of  this  case  could  include  the
frequency of Respondent’s vacations to Laos.   Therefore,
when applying that factor to this case, while more than one
vacation per year may be reasonable for places requiring
less money for airfare and expenses[,] the costs of a trip to
Laos is not such a destination.   The Court concludes that
the Respondent’s use of marital assets to take more than
one vacation in any calendar year at a cost of $4000 per trip
to his homeland of Laos was not reasonable and therefore
in the instant case constituted dissipation of marital assets
or waste of a total of $12,000 ($4000 x 3 trips).
… Under the logic of Dean [v. Dean, 87 Wis. 2d 854, 275
N.W.2d  902  (1979)], the Court concludes that since the
Court has found that the Respondent’s use of assets for
vacation purposes is reasonable, the Petitioner’s complaint
that he had no family there, went over her objections and
possibly engaged in extramarital conduct is not relevant or
determinative on the question of waste.[6]
6
We also observe that, had the trial court accepted Kachi’s explanation for the trips,
WIS. STAT.  § 767.61(3) may have restricted the trial court’s ability to reduce Dao’s award of
property because of marital misconduct.
(3)  PRESUMPTION OF EQUAL DIVISION. The court shall
presume that all property not described in sub. (2)(a) is to be
divided  equally  between  the  parties,  but  may  alter  this
distribution   without   regard   to   marital   misconduct   after
considering all of the following:
(a)  The length of the marriage.
(b)  The property brought to the marriage by each party.
(c)  Whether one of the parties has substantial assets not
subject to division by the court.
(d)  The  contribution  of  each  party  to  the  marriage,
giving appropriate economic value to each party’s contribution
in homemaking and child care services.
(e)  The age and physical and emotional health of the
parties.
(continued)
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No. 2008AP2527
¶21    We first observe that the trial court utilized the correct standard of
law.   The trial court wrote:                                                   “[w]hether applying the rebuttable presumption or the
ordinary burden of proof to the use of the money by  [Dao] for vacations the
Court’s conclusions are the same.”
(f)  The  contribution  by  one  party  to  the  education,
training or increased earning power of the other.
(g)  The  earning  capacity  of  each  party,  including
educational  background,  training,  employment  skills,  work
experience, length of absence from the job market, custodial
responsibilities for children and the time and expense necessary
to acquire sufficient education or training to enable the party to
become  self-supporting  at  a  standard  of  living  reasonably
comparable to that enjoyed during the marriage.
(h)  The desirability of awarding the family home or the
right to live therein for a reasonable period to the party having
physical placement for the greater period of time.
(i)  The amount and duration of an order under s. 767.56
granting maintenance payments to either party, any order for
periodic family support payments under s. 767.531 and whether
the property division is in lieu of such payments.
(j)  Other  economic  circumstances  of  each  party,
including  pension  benefits,  vested  or  unvested,  and  future
interests.
(k)  The tax consequences to each party.
(L)  Any written agreement made by the parties before
or during the marriage concerning any arrangement for property
distribution; such agreements shall be binding upon the court
except that no such agreement shall be binding where the terms
of the agreement are inequitable as to either party. The court
shall presume any such agreement to be equitable as to both
parties.
(m)  Such  other  factors  as  the  court  may  in  each
individual case determine to be relevant.
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No. 2008AP2527
¶22    As noted, the trial court relied on the holding in Dean for support.
In Dean, our supreme court held that:
A trial court does not commit an abuse of discretion by
permitting some  expenditure for  yearly vacations during
the pendency of a divorce.   However the amount expended
should  always  be  reviewed,  subject  to  the  standards  of
reasonableness.
Id. at 869.   Here, the trial court applied this formula and found three trips to be
excessive and unreasonable.   We agree.   Again, the trial court’s findings of fact
were  not  clearly  erroneous  and  its  legal  conclusion  was  not  incorrect.    See
LeMere, 262 Wis. 2d 426, ¶13.
C.   The trial court findings concerning Dao’s $171,000 bank withdrawals are not
clearly erroneous and the trial court properly determined that Dao did not
commit waste when withdrawing this money.
¶23    Kachi argues that the trial court erroneously exercised its discretion
when it failed to separate out the withdrawals taken by Dao from Landmark Credit
Union account during the one year look-back from the other withdrawals.    In
addition, she submits that the trial court’s finding that both parties handled their
finances by taking large cash withdrawals was clearly erroneous.    Further, she
submits that the trial court failed to require Dao to turn over requested discovery
and failed to apply case law relevant to the issue.   She has proposed that this court,
at a minimum, require the inclusion of twenty percent of these monies because
Dao could not explain all of the withdrawals.
¶24    The  trial  court  made  the  following  findings  concerning  the
Landmark account:   Kachi did not have the complete record of the account and she
used her own calculations in her attempt to prove that Dao spent $171,000 and that
none of these sums were used for the benefit of the family; Kachi’s accounting
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No. 2008AP2527
was misleading and inaccurate, but “[Dao, on the other hand,] provided complete
answers to questions about his deposits and use of the money in the Landmark
account; he was not evasive when he testified about the use for vacations, for huge
family debts, to make his home livable again for himself and his children to
provide necessities of daily living.”   The trial court accepted Dao’s testimony that
he used much of the money to pay back family loans, debts, and provide for the
children.   Further, the trial court found that during the marriage and the separation,
both  parties  had  separate  accounts,  as  well  as  a  joint  account,  and  that  the
Landmark account was substantially funded by Dao’s payroll deposits and the
proceeds obtained through the liquidation of assets.
¶25    The  trial  court  concluded  that  whether  it  applied  the  rebuttable
presumption found in WIS. STAT. § 767.63 or the standard burden of proof, Kachi
failed to prove that Dao unjustifiably dissipated assets.   The trial court found that
Dao used this account when he and Kachi were living together and he used it,
among other things, to pay family debts and contributed to the upkeep of the home
and the care of the children.   The trial court noted that during the marriage, both
Kachi and Dao took out large sums of money from different accounts without
documenting  what  they  were  using  it  for.    Further,  Kachi  agreed  that  Dao
deposited money in their joint account until June 2006, and she admitted that he
gave her significant sums during their separation.    We accept the trial court’s
findings, as they are not clearly erroneous, see LeMere, 262 Wis. 2d 426, ¶13;
consequently, we conclude, as did the trial court, that no waste occurred.
¶26    What Kachi fails to acknowledge in her briefs is that the trial court
did not believe her claim that Dao spent $171,000 on things other than the family.
15




No. 2008AP2527
[Dao]   adequately   rebutted                                                       [Kachi’s]   claim   that   he
unjustifiably  dissipated  assets.    For  example,  his  strong
argument that she disregarded his contribution “in cash” to
the household during the 4 of the 5 years that they lived
under  the  same  roof  operating  out  of  separate  accounts
jointly expending large sums of money from their separate
accounts on bills and family obligations.
¶27    In addition, the court noted that Kachi’s own financial disclosure
statement listed several separate accounts that she had, which led credence to
Dao’s contention that they each had separate accounts, along with a joint account
with which they paid their debts.
¶28    As  to  Kachi’s  claim  that  the  trial  court  did  not  require           Dao  to
cooperate with discovery, the trial court came to the opposite conclusion:
Following the dictates of Derr, the Court concludes
that  the  Respondent  testified  completely  and  without
evasiveness, and answered all questions put to him, and
similar  to  the  reasoning  in  Anstutz,  showed  no  sign  of
volition  or  negligence  in  his  testimonials  about  this
account.    The Court’s conclusions about the Petitioner’s
recitation of the data in trial exhibit 1 and her creation of
trial exhibit 2[,] without more[,] was insufficient to refute
the detail given by the Respondent which the Court found
credible giving numerous examples of what he spent and
why he had to expend it.
The Court disagrees with the [P]etitioner’s assertion
that  this  was  a  situation  where  the  Respondent  was  in
exclusive control of the account data; As the Court has
summarized  using  trial  exhibit                                                   1,  numerous  items  of
documentation  was                                                                  [sic]  produced  from  Landmark  and
numerous  more  were  available  -  if  requested  by  either
party via discovery.
…  There  is  no  evidence  in  the  record  that  the
Respondent  refused  to  answer  any  question  or  provide
information about his use of the funds nor did he prohibit
the discovery of same.
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No. 2008AP2527
¶29    Although Dao could not account for every dollar that was withdrawn
from  the  Landmark  account,  the  trial  court  was  satisfied  with  his  detailed
recollections that the money was spent principally on the family and his vacations:
The                                                                                     [R]espondent  convinced  this  Court  of  his
veracity about his use  of funds in the  Landmark Credit
Union  Account                                                                          -  to  cover  the  costs  of  daily  living,
necessities, family debts, vacations at a reasonable costs
[sic] and other acceptable purposes, which the Court found
did not constitute an unjustified depletion of marital assets
(except for the multiple year vacation costs).
¶30    Finally, Kachi also argues that the trial court’s finding that she took
out large sums of money was clearly erroneous.    This contention is belied by
Exhibit  28 in the record, which reflects that Kachi did take out large sums of
money from her own account, including a $3000 withdrawal.
¶31    We are satisfied that the trial court’s findings of fact and conclusions
of law are supported by the record.   The trial court simply discounted Kachi’s
recollections of the family’s financial dealings and adopted Dao’s.
¶32    For the reasons stated, the judgment is affirmed.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
17

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