You be the judge... because the Court of Appeals CAN'T be.

In the hot-off-the-presses case of In re marriage of Findley, the Court of Appeals is asked once again to weigh in on a never-ending divorce case, and in the course of declining to overrule the circuit court reveals some facts that make me think I'd have ruled a different way.

Findley is about an ex-wife who was owed at the time of divorce about $950,000 in property division, and let this be a lesson to everyone that a bird in the hand is worth $950,000 in the bush.  Or at least $325,000 in the bush, that seeming to be how much the ex didn't get:

Before and throughout the parties' seven-year marriage, Findley owned Meandaur, a successful corporation. During the marriage, Gibbons was a Meandaur employee and shareholder. The parties' comprehensive marital settlement agreement, incorporated into the judgment of divorce, resolved claims between Gibbons and Meandaur, waived maintenance to both parties and divided their property accordingly. As part of the property division, Findley agreed to pay Gibbons $300,000 at divorce, then annual payments of $162,500 on April 1 of each of 2005, 2006, 2007 and 2008, for a total of $950,000. 

  Meandaur's--and Findley's--fortunes changed. The loss of a major client sent the business into a death spiral despite Findley's substantial cash infusions. By September 2007 Meandaur was defunct. Findley lost nearly everything awarded to him in the divorce and faced over $3 million in judgments. 

That meant that Findley wasn't paying the wife, and she sought to compel him to do so in a prior motion, which led to a prior appeal, which led to the Court of Appeals holding that shirking doesn't apply to property division.  Then came this motion, with the ex seeking a contempt finding from the circuit court.

 Here's Findley's side of the argument:

Findley currently resides in a Florida retirement community ("Shell Point"), draws social security and a salary as the director of LEAF, Ltd, a private charitable foundation, lives with a woman who shares his expenses and is the beneficiary of a trust established upon his father's death in 2008. 

 ... The court found that: the 2004 property division was premised in large part on Meandaur's success at the time; Findley invested personal assets and borrowed sums in a vain effort to save Meandaur; it would take diligence and luck for Findley, who runs a monthly deficit, is nearly seventy and resides in an area with high unemployment, to find a job that would put much of a dent in that deficit; leaving Shell Point for an alternative living arrangement would be even less advantageous now than in 2007; the initial trust balance of $162,000 is declining and Findley cannot require the trustees to cover more of his expenses; LEAF's asset balance was declining; there was no evidence that a project LEAF is developing has produced any revenue; two LEAF employees earn more than Findley but there was no evidence that their compensation is inconsistent with their services or that Findley could assume their duties; ... and there is no money available even for installment payments. 

Sounds grim, doesn't it?  How can you help but feel sorry for this 70-year-old man who's living off virtually nothing and has his ex trying to get him to pay $300,000+?

Here's how:

Gibbons contends those findings are clearly erroneous. She argues that before 2007, LEAF paid Findley in the mid-six figures for consulting work and now pays him only $17,500 annually as a full-time director; that Findley also spends about ten hours a week doing unpaid volunteer work; that Findley's live-in girlfriend is a LEAF employee paid $72,000 a year; and that, although the purpose of the trust is to assist with Findley's uninsured medical and Shell Point expenses, he did not seek reimbursement for those incurred before the trust was established. 

Well! Seems like things are a little different.  Reading this case reminded me of watching a football game where the team takes the ball on the opening possession and marches down for a quick score, only to see the opponent do the same.

Unfortunately for the ex, there's no halftime to regroup; the Court of Appeals (correctly) pointed out that things are up to the circuit court when it comes to deciding whose evidence to believe, and that means the circuit court could decide that Findley's tale of woe was the more compelling version -- in short, that Findley's current circumstances are not a deliberate contempt of court, and since it's super-hard to overcome those findings, and since Findley did not meet that burden, the judgment stands.

On an interesting note:  The Court of Appeals mentioned that

Gibbons contends the evidence shows that Findley "has intentionally minimized his income and that any resulting inability to pay [her] is self-inflicted." This sounds much like a shirking argument. See Wallen v. Wallen, 139 Wis. 2d 217, 225-26, 407 N.W.2d 293 (Ct. App. 1987) (stating that a common factor accompanying a finding of "shirking" is a voluntary or self-inflicted reduced ability to pay a support obligation). To the extent that it is, we address it no further. 

Which is interesting insofar as had the award been one of maintenance, shirking would apply, but the ex would've been taxed on the money she received as payments.  I don't know if she chose to have property division over maintenance or not, but the case at least stands as a reminder that things are rarely clearcut in making decisions like that; if the ex did opt for property division to avoid taxation, she made a losing bet.