2004AP2933 In re the Marriage of: Noble v. Noble

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“We hold that the trial court properly excluded from the marital estate the value of the three properties at issue. In short, the law does not require a party to a prospective divorce to take advantage of an opportunity to acquire property that would increase the value of the marital estate, and the use of partnership funds to finance the purchase of the properties did not improperly dissipate the value of the marital estate. We further hold that the trial court did not err in adopting Danny’s expert’s valuation of the real estate. The court simply made a credibility determination with which we cannot quarrel.

“In its oral decision, the trial court rejected Deborah’s notion that these facts demonstrated that Danny had engaged in some kind of misconduct warranting the inclusion in the marital estate of the value of the three properties. The court noted that one of the properties ‘was not available to the general public, and it was only by virtue of that family relationship that Dale and [his wife] were able to purchase the property at $1,400 an acre.’ The court observed that Deborah was not being cooperative in purchasing additional property and that ‘Dale did not want to risk losing the property and given the fact that they were renting acreage adjacent to the property, he purchased it in his own name.’ The court further noted that while Dale and his wife borrowed money from the partnership in order to pay for the property, they repayed the partnership “by way of rental income’:

The land is farmed by the partnership, a fair rental value was calculated based upon what the partnership was paying for other similar rented property, and that was the amount that was credited for the debt every year. Every year the ledger shows that the amount of the loan is decreased by the fair rental value. I found nothing wrong, nothing sinister about that practice; in fact … the testimony was undisputed that the partnership would not have made it if they would have had to actually pay out money for that rent. In summing up its conclusion, the court commented that the decision to title the property in the names of Dale and his wife was ‘nothing other than a sound business decision.’ The trial court accounted for the outstanding obligation Dale and his wife owed as of the date of divorce, which the court called an account receivable, in its property division. …

“In sum, we conclude that the trial court properly excluded the value of the three properties from its valuation of the marital estate. The law does not require a party to a pending divorce to take advantage of opportunities to acquire properties that will increase the value of the marital estate. We further hold that the purchase by Dale and his wife of the three properties with the backing of partnership funds did not improperly dissipate the value of the marital estate.”

Affirmed.

Recommended for publication in the official reports.

Dist II, Racine County, Flancher, J., Anderson, J.

Attorneys:

For Appellant: Frances H. Martin, Milwaukee

For Respondent: Peter J. Ludwig, Burlington