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PUBLISHED OPINION
Case No.:                                                             94-2533-FT
Complete Title
of Case:
IN RE THE MARRIAGE OF:
ROBERTA K. LONG,
                                                                      Petitioner-Respondent,
v.
RUSSELL S. LONG,
                                                                      Respondent-Appellant.
Submitted on Briefs:                                                  February  20,  1995
Oral Argument: ---
COURT                                                                 COURT OF APPEALS OF WISCONSIN
Opinion Released:                                                     August  1,  1995
Opinion Filed:                                                        August  1,  1995
Source of APPEAL                                                      Appeal from a judgment
Full Name JUDGE                                                       COURT:                                    Circuit
Lower Court.                                                          COUNTY:                                   Milwaukee
(If "Special",                                                        JUDGE: DOMINIC S. AMATO
so indicate)
JUDGES:                                                               Wedemeyer, P.J., Sullivan and Fine, JJ.
Concurred:                                                            Fine, J.
Dissented:                                                            Fine, J.
Appellant
ATTORNEYSFor  the  respondent-appellant  the  cause  was  submitted
on the briefs of Russell S. Long of Milwaukee.
Respondent
ATTORNEYSFor    the    petitioner-respondent    the    cause    was
submitted  on  the  briefs  of  Richard  E.  Reilly  and
Kathryn   A.   Keppel   of   Gimbel,   Reilly,   Guerin   &
Brown, of Milwaukee.




COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
August 1, 1995
A party may file with the Supreme Court                                                This opinion is subject to further editing.
a petition to review an adverse decision                                               If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                             appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                    Official Reports.
No.   94-2533-FT
STATE OF WISCONSIN                                                                     IN COURT OF APPEALS
IN RE THE MARRIAGE OF:
ROBERTA K. LONG,
Petitioner-Respondent,
v.
RUSSELL S. LONG,
Respondent-Appellant.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:  DOMINIC S. AMATO, Judge.  Affirmed in part; reversed in part and cause
remanded.
Before Wedemeyer, P.J., Sullivan and Fine, JJ.
SULLIVAN, J.    Russell S. Long appeals from the property division
in a judgment of divorce.  He raises two issues on appeal:   (1) Did the trial court
erroneously include in the property division certain of his income spent prior to
completion of the divorce?; and, (2) Did the trial court err when it valued two




No.   94-2533-FT
checking accounts on a date other than the date of divorce?   Pursuant to this
court's order dated October 20, 1994, this case was submitted to the court on the
expedited appeals calendar.   We reverse on the first issue, and affirm on the
second.
Russell and Roberta Long married in 1985.   After Roberta filed for
divorce in 1992, she and Russell entered into a stipulation governing, among
other  things,  the  use  of  assets  during  the  pendency  of  the  divorce.    The
stipulation provided that they would separate on March 15, 1992.    They agreed
that Russell was “to be awarded use” of a Bank One checking account, and
Roberta was “to be awarded use” of a Valley Bank checking account.   It is
undisputed that, on March  15,  1992, the day they separated, the Bank One
account for Russell's use had a $20,515 balance, and the Valley Bank account for
Roberta's use had a $1,199.37 balance.
In addition to regular income earned from employment in 1993,
Russell received an  $11,700 bonus, and consulting fees of  $12,000.    He also
received $2,460.32 in 1992 for services performed as a bankruptcy trustee.   Over
Russell's objections at trial, the trial court considered this income to be marital
property subject to division.
When the divorce was granted in September 1993, the balance in
the Bank One checking account, which Russell and Roberta had agreed was his
to use during the pendency of the divorce, had been reduced to approximately
$5,000.   The Valley Bank checking account assigned to Roberta for her use was
overdrawn.   Rather than including in the property division the value of the
accounts as of the time of the divorce, the trial court included the value of the
accounts on March 15, 1992, the date of separation.
Russell contends that the trial court's inclusion of his bonus and
fees in the property division, and its valuation of the accounts as of the date of
separation were erroneous rulings. We address them in turn.
INCLUSION OF BONUS AND FEES
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No.   94-2533-FT
Valuation of a marital estate lies within the sound discretion of the
trial court.   Schinner v. Schinner, 143 Wis.2d 81, 97, 420 N.W.2d 381, 387 (Ct.
App. 1988).   An appellate court sustains discretionary determinations if it finds
that the trial 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.   Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320
N.W.2d 175, 184 (1982).
Although valuation of an estate lies within the sound discretion of
the trial court,  “[w]hether an item at issue should be classified as property
subject to division involves the application of a statute to a particular set of
facts.”   Hubert v. Hubert, 159 Wis.2d 803, 811-12, 465 N.W.2d 252, 255 (Ct. App.
1990).   Consequently, “[t]his court owes no deference to the trial court” on this
question.  Id. at 812, 465 N.W.2d at 255.
There is no dispute but that, at the time of the divorce, Russell had
received the bonus and fees.   He testified that he had deposited his regular
income and the additional income from the bonus and fees in his checking
account, but then disbursed those funds to pay living expenses and to defray
the costs of the divorce litigation. There was no testimony to show that Russell
had used the additional income to purchase tangible assets.   The trial court
reasoned that the additional income should be included as part of the property
division because it was equitable to do so.   It stated that the additional income
“should be split because you're getting the benefit of the house and everything
else.”
As Russell notes, however, there is no Wisconsin law that holds a
party's income to itself be property subject to division in a divorce.     Property
division involves the division of marital assets “as they exist at the time of the
divorce.”  Bussewitz v. Bussewitz, 75 Wis.2d 78, 82, 248 N.W.2d 417, 420 (1977).
The income from the bonus and fees did not exist as an asset at the time of the
divorce.   Nonetheless, the trial court reasoned that Russell's additional income
from the bonus and fees was subject to division.
While we recognize that the trial court was attempting to effect an
equitable division of property, it could not do so by classifying as property
something that was not.   The equitable remedy it sought lay elsewhere.   For
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No.   94-2533-FT
example, rather than erroneously classifying income disbursed as an asset, the
trial court could have considered the bonus and fees when it examined the
disparity in actual income or earning capacity between Russell and Roberta
when it divided the marital estate, see  §§ 767.255(3)(d) &  (g), STATS., or in
determining  whether  maintenance  was  appropriate,  see  §§ 767.26(5)  &  (6),
STATS.1    It could have also varied from the presumption of equal property
division set forth in  § 767.255(3), STATS., based on Russell's past and future
income.   To include income earned by Russell but not converted to tangible
assets or other property in the property division, however, was error.    The
bonus and fees were like Russell's regular income, not divisible as property, but
to be considered in determining a fair division of property or maintenance.  The
trial court's remedy was not, however, to declare a nonexistent asset to be
marital property and then to divide it between the parties.2
VALUATION OF CHECKING ACCOUNTS
1  Sections 767.255(3)(d) & (g), STATS., provide that a court may depart from the presumption of
equal property division after considering a party's contribution to the marriage, and each party's
earning capacity, among other factors.  Section 767.26(5), STATS., allows the court to consider each
party's earning capacity when deciding whether to set maintenance.     Section 767.26(6), STATS.,
permits the trial court to consider the feasibility that a party seeking maintenance “can become self-
supporting at a standard of living reasonably comparable to that enjoyed during the marriage ....”
2   We should briefly comment on Roberta's contention that all income earned during a marriage
is marital property, and that income is defined to include “wages, salaries, commissions, bonuses,
gratuities, ... [or] deferred employment benefits.”  Section 766.01(10), STATS.  While we agree with
Roberta that, under this definition, Russell's additional income was “marital property” within the
meaning of chapter 766, we disagree with her that a conclusion that income is a marital asset
subject to division under § 767.255, STATS., is mandated.  As this court has noted:
[A]pplying                                                                                               “marital  property”  terminology  from  chapter                                                                      766  to  [§]                767.255
                                                                                                                                                           divorce actions is not merely technically incorrect: it confuses
                                                                                                                                                           chapter  766 property rules and policies with divorce rules and
                                                                                                         policies set forth in  [§]  767.255...                                                                               Wisconsin's adoption of a
                                                                                                                                                           marital property system does not mandate application of chapter
                                                                                                                                                           766 rules to issues relating to division of spousal property at
                                                                                                         divorce.
Kuhlman v. Kuhlman, 146 Wis.2d 588, 593, 432 N.W.2d 295, 297 (Ct. App. 1988) (quoting June
M. Weisberger, The Marital Property Act Does Not Change Wisconsin's Divorce Law, WIS. BAR
BULL., May 1987, at 14, 14).
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No.   94-2533-FT
“The marital estate is usually valued as of the date of the divorce.”
Sommerfield v. Sommerfield, 154 Wis.2d 840, 851,   454 N.W.2d 55, 60 (Ct. App.
1990).                                                                                 “However, when conditions over which a party has little or no control
arise, such special circumstances can warrant deviation from the rule.”  Id.
The exercise of discretion suggests a “reasoned application of the
appropriate legal standard to the relevant facts in the case,” Hedtcke v. Sentry
Ins. Co., 109 Wis.2d 461, 471, 326 N.W.2d 727, 732 (1982).   The trial court never
specifically stated that special circumstances existed to warrant valuation of the
checking accounts as of the separation date, however, and Russell suggests that
the trial court thereby erroneously exercised its discretion.   If, however, a trial
court fails to adequately set forth its reasoning in reaching a discretionary
decision,   this court will search the record for reasons to sustain that decision.
Loomans v. Milwaukee Mut. Ins. Co., 38 Wis.2d 656, 662, 158 N.W.2d 318, 320
(1968).  Our review of the record satisfies us that the trial court, by its comments
on  the  depletion  of  the  accounts,  appropriately  applied  the                    “special
circumstances” test.
The trial court concluded that March 15, 1992, eighteen months
before the divorce was finalized, was a “meaningful date” for valuing Russell's
and Roberta's checking accounts because that was the date they established
separate households.   It noted that the separation date was significant because
the court could look at the parties' behavior after that date “to ascertain how
[they]  conducted  themselves  with  regard  to  carrying  out  their  marital
relationship and the disposition of the marital estate including all marital assets,
property and income.”   The trial court noted that it would not find that Russell
wasted assets during the pendency of the divorce.    It noted, however, that
Russell had been earning $80,000 per year, approximately $30,000 more per year
than Roberta.   It noted that Russell had apparently spent all his income earned
during the divorce, including the bonus and fees, and had also drawn down the
Bank One checking account by $15,000.   It is clear from the record that the trial
court's decision to value the accounts as of March 15, 1992, was influenced by
what it viewed as Russell's unwillingness or inability to curb his spending
during the divorce.   Russell's use of the account was, by the parties' agreement,
a matter outside of Roberta's control.   We are satisfied that there is sufficient
information in the record to conclude that the trial court applied the “special
circumstances” exception to the rule of valuation of property as of the date of
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No.   94-2533-FT
divorce.   We are also satisfied that the record supports the trial court's decision
to require Russell to account for the dissipation of the account.3
By the Court.—Judgment affirmed in part, reversed in part, and
cause remanded.
3   To the extent that Russell relies on the stipulation awarding him “use” of the Bank One
account during divorce proceedings for his position, we note that the trial court specifically
indicated that the stipulation only provided each party the use of the accounts.   It indicated that it
did not take that language to mean that Russell and Roberta could not each be held accountable to
the other for the depletion of the accounts.  We agree.
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No.   94-2533-FT(CD)
FINE, J. (concurring in part; dissenting in part).   Although I agree
with the majority's resolution of the first issue, I dissent on the second.
Absent “special circumstances” a marital estate is valued as of the
date of the divorce.   Sommerfield v. Sommerfield, 154 Wis.2d 840, 851-852, 454
N.W.2d 55, 60 (Ct. App. 1990).   The trial court did not find that there were
“special circumstances.”   Yet, in upholding the trial court's decision valuing the
parties' respective bank accounts as of the parties' separation date rather than
their divorce date, the majority opines that the trial court applied the “special
circumstances” test nevertheless.    Majority op. at  7.    I respectfully disagree.
First, the parties agreed via a formal stipulation that each of them would be able
to “use” their respective accounts.   Thus, the parties intended that each of them
would be able to take money from their respective accounts and spend it.
Accordingly, the fact that money was taken from each of the accounts cannot
constitute “special circumstances.” Second, the trial court did not find that Mr.
Long had intentionally depleted his account beyond his legitimate needs.  In my
view, the trial court ignored applicable precedent in selecting a valuation date
other than the date of divorce.   I would reverse on the second issue as well as
the first.

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