Angela Jean Strunsee v. Jeffrey Alan La Bri

COURT OF APPEALS
DECISION NOTICE
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.
July 25, 2019
A party may file with the Supreme Court a
Sheila T. Reiff 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.

Appeal Nos. 2017AP1006 Cir. Ct. No. 2011FA351

2017AP2214

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

NO. 2017AP1006

IN RE THE MARRIAGE OF:

ANGELA JEAN LA BRI,

PETITIONER-RESPONDENT-CROSS-APPELLANT,

V.

JEFFREY ALAN LA BRI,

RESPONDENT-APPELLANT-CROSS-RESPONDENT.
Nos. 2017AP1006
2017AP2214

NO. 2017AP2214

IN RE THE MARRIAGE OF:

ANGELA JEAN STRUNSEE P/K/A ANGELA JEAN LA BRI,

PETITIONER-RESPONDENT,

V.

JEFFREY ALAN LA BRI,

RESPONDENT-APPELLANT.

APPEALS and CROSS-APPEAL from a judgment and an order of
the circuit court for Washington County: MICHAEL O. BOHREN, Judge.
Affirmed.

Before Lundsten, P.J., Blanchard and Fitzpatrick, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Angela Strunsee (formerly Angela La Bri) and
Jeffrey La Bri were divorced in the Washington County Circuit Court.1 Jeffrey
appeals rulings of the circuit court regarding the division of the property of the
parties and the court’s award of family support. Angela cross-appeals rulings of

1
For convenience, we will refer to the parties by their first names.

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the circuit court regarding the division of the property of the parties.2 We affirm
all the rulings of the circuit court.

BACKGROUND

¶2 Angela and Jeffrey were married in 1993 and divorced after a 23-
year marriage. Angela and Jeffrey had one minor child at the time of the divorce.

¶3 By the time the divorce was initiated, the parties had a marital estate
valued in the millions of dollars, and Jeffrey had income of several hundred
thousand dollars per year. A lengthy trial was held in the circuit court in which
there were numerous contested issues relating to legal custody and physical
placement of their child, property division, and family support owed from Jeffrey
to Angela.

¶4 We will mention other material facts in the discussion that follows.

DISCUSSION

I. Standard of Review.

¶5 Decisions concerning the division of a marital estate and family
support awards are both committed to the circuit court’s discretion. See Sellers v.
Sellers, 201 Wis. 2d 578, 585, 549 N.W.2d 481 (Ct. App. 1996). This court
affirms a circuit court’s discretionary determination if the court made a rational,
reasoned decision and applied the correct legal standard to the facts of record. Id.

2
These cases have been consolidated for purposes of briefing and disposition.

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¶6 A circuit court’s findings of fact are reviewed under a clearly
erroneous standard. WIS. STAT. § 805.17(2) (2017-18).3 A finding is clearly
erroneous if it is against the great weight and clear preponderance of the evidence.
State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748. The circuit
court’s findings will not be overturned on appeal unless those are inherently or
patently incredible, or in conflict with the uniform course of nature or with fully
established or conceded facts. Global Steel Prods. Corp. v. Ecklund, 2002 WI
App 91, ¶10, 253 Wis. 2d 588, 644 N.W.2d 269. “[E]ven though the evidence
would permit a contrary finding, findings of fact will be affirmed on appeal as
long as the evidence would permit a reasonable person to make the same finding.”
Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶12, 290 Wis. 2d 264, 714
N.W.2d 530 (quoting Reusch v. Roob, 2000 WI App 76, ¶8, 234 Wis. 2d 270, 610
N.W.2d 168). Moreover, appellate courts search the record for evidence
supporting the circuit court’s decision. Mentzel v. City of Oshkosh, 146 Wis. 2d
804, 808, 432 N.W.2d 609 (Ct. App. 1988).

¶7 We now consider the issues raised in Jeffrey’s appeal.

II. Jeffrey’s Appeal.

A. Admissibility of Expert Testimony.

¶8 Jeffrey asserts that the circuit court erred in failing to exclude the
testimony of two expert witnesses called by Angela regarding the valuation of
Jeffrey’s business, the La Bri Group. We reject Jeffrey’s argument.

3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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¶9 The La Bri Group is referred to by the parties as an “investment
advisory business.” Prior to trial, Jeffrey filed a motion in limine to exclude the
testimony of two witnesses retained by Angela, Jeffrey Schaff and David Grau.
Schaff and Grau worked together in that Schaff gathered information regarding the
La Bri Group, and Grau conducted the valuation of the business. Jeffrey’s motion
contended that the testimony of Schaff and Grau did not meet the requisite
standards for the admissibility of expert testimony as required by WIS. STAT.
§ 907.02(1).

¶10 For purposes of appeal, the pertinent basis for Jeffrey’s motion in
limine was that neither Schaff nor Grau had “any recognized credentials to value
businesses and, therefore, [neither had] the knowledge, skill, experience, training
or education required by [WIS. STAT.] § 907.02(1).”4 The circuit court took that
motion under advisement.

¶11 Schaff was called to testify at trial, and the following exchange took
place before Schaff testified:

[Jeffrey]: Your Honor, I will remind you that the
Court took under advisement the Daubert issue with regard
to this witness.

THE COURT: Refresh my memory of what the
Daubert issue was.

[Jeffrey]: Just in regard to Mr. Schaff not being
qualified in any way to represent himself as a business
valuation expert. He carries no credentials at all in the
field.

4
Jeffrey’s motion in limine stated three bases for the relief requested. Two of those
bases, that the written report by Schaff made an incorrect factual statement on a specific point,
and that neither Schaff nor Grau spoke to Jeffrey before coming to their opinions, are not
advanced on appeal. So, we need not consider those bases for that reason.

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THE COURT: Well, at this point I will take the
testimony, including the credentials, and then we’ll go
through testimony and the cross-examination. After I have
heard all the testimony, I will rule as to the [admissibility]
of the testimony.

(Emphasis added.) Jeffrey offered no further objection to Schaff’s testimony or
the exhibits entered through Schaff’s testimony (with one exception not relevant to
our analysis). Jeffrey did not renew any objection, or make a motion to strike, at
the conclusion of Schaff’s testimony.

¶12 At trial, Jeffrey did not raise any contemporaneous objection to
Grau’s trial testimony or remind the court about Jeffrey’s pre-trial motion in
limine seeking an order barring Grau’s testimony.

¶13 The circuit court did not expressly rule on Jeffrey’s motion in limine
or Jeffrey’s objections to Schaff’s testimony made at trial. The circuit court found
that the testimony of both Schaff and Grau was “credible” and accepted Grau’s
opinion regarding the value of the La Bri Group. We consider this as an implicit
ruling of the circuit court that Schaff and Grau were qualified to present expert
testimony under WIS. STAT. § 907.02(1).

¶14 A circuit court’s determination on the admissibility of expert
testimony is reviewed for an erroneous exercise of discretion. State v. Jones,
2018 WI 44, ¶28, 381 Wis. 2d 284, 911 N.W.2d 97. We now consider Jeffrey’s
arguments that have been preserved for appeal on this issue.

¶15 A motion in limine, such as the motion filed by Jeffrey, is sufficient
to preserve, for purposes of appeal, an objection to the admissibility of evidence.
State v. Bergeron, 162 Wis. 2d 521, 529, 470 N.W.2d 322 (Ct. App. 1991).
However, on appeal Jeffrey is restricted to those arguments raised in the motion in

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limine. See State v. Bustamante, 201 Wis. 2d 562, 573, 549 N.W.2d 746 (Ct.
App. 1996) (quoting Bergeron, 162 Wis. 2d at 529 (“[I]f the issue raised by
appeal is different in fact or law from that presented by the motion in limine, then
waiver may be found if no objection was made at trial.”)); see also McClelland v.
State, 84 Wis. 2d 145, 157-58, 267 N.W.2d 843 (1978) (an appellant may lose the
right to complain that the circuit court failed to exercise discretion if the appellant
failed to request the court to do so).

¶16 As already described, the only basis for the motion in limine that is
also raised on appeal is that Schaff and Grau did not have sufficient credentials to
be qualified to give admissible expert testimony on the valuation of the La Bri
Group.5 Therefore, Jeffrey’s motion in limine preserved his right to appeal the
question of the admissibility of the testimony of Schaff and Grau based on their
asserted lack of credentials. As a result, we do not consider Jeffrey’s appellate
arguments directed at testimony to which Jeffrey did not object either in the
motion in limine or at trial. See Bustamante, 201 Wis. 2d at 573.

¶17 In this court, Jeffrey makes no contention in support of that
remaining argument other than his conclusory statement that, because they hold no
business valuation credentials, Schaff and Grau are not qualified to give expert
testimony under WIS. STAT. § 907.02(1). In response, Angela cites to numerous
portions of the trial testimony which show that Schaff and Grau have substantial
experience over many years in which each gathered data regarding, and valued,
businesses similar to the La Bri Group. In reply, Jeffrey does not contend that

5
Also, as noted, the only objection stated by Jeffrey at trial in regard to the admissibility
of the testimony of either Schaff or Grau was his argument that Schaff was not qualified as an
expert because he has no credentials in the field.

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Angela’s cites to the record are incorrect, and Jeffrey cites to no part of the trial
record in support of his argument. Rather, in reply Jeffrey only restates his
conclusion that “[t]he record indicates that Angela’s witnesses enjoy no such
specific certifications as a business appraiser.”

¶18 We conclude that the record establishes that Schaff and Grau have
substantial experience gathering data regarding, and valuing, businesses similar to
the La Bri Group. Accordingly, we reject Jeffrey’s argument that the circuit
court’s implicit decision on the admissibility of those expert opinions was an error.

B. Circuit Court’s Reliance on Financial Information
Regarding the La Bri Group.

¶19 Jeffrey argues that the circuit court erred in accepting Grau’s opinion
regarding the value of the La Bri Group in that the circuit court relied on the
opinions of Schaff and Grau regarding the “trailing twelve.”6 We reject Jeffrey’s
argument.

¶20 The parties agree that the “trailing twelve” refers to the twelve
months of revenue generated by the La Bri Group immediately prior to the date of
the valuation of the business. Both Angela’s experts and Jeffrey’s expert used the
“trailing twelve” as a basis to value the La Bri Group. However, the experts
disagreed on the revenue which should be included in the “trailing twelve.” Grau
and Schaff included in the “trailing twelve” the revenue from an independent
contractor associated with the La Bri Group, whereas Jeffrey’s expert excluded

6
Jeffrey’s argument is framed as the circuit court’s purported “erroneous exercise of
discretion” but, as will be seen, the issue is properly framed as a credibility determination by the
circuit court.

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that from the “trailing twelve.” Put in terms of dollar amounts, Schaff provided
Grau with a trailing twelve number of $1,312,806, and Grau relied on that number
in his valuation. Jeffrey’s expert opined that the trailing twelve was $1,167,207.
The difference was about $145,000. The parties do not dispute that the difference
in the amount of revenue considered to be in the “trailing twelve” made a material
difference in the value of the business as determined by the circuit court.

¶21 A circuit court’s determination of the value of an asset is a finding of
fact that this court will not set aside unless the finding is clearly erroneous.
Lellman v. Mott, 204 Wis. 2d 166, 171, 554 N.W.2d 525 (Ct. App. 1996). When
there is more than one reasonable inference that can be drawn from the evidence,
we accept the fact chosen by the trier of fact because the circuit court determines
the weight and credibility of a witness’s testimony. DeLaMatter v. DeLaMatter,
151 Wis. 2d 576, 583, 445 N.W.2d 676 (Ct. App. 1989). The circuit court is the
“arbiter of credibility,” and it was up to the circuit court to accept “the testimony
of one expert over that of another expert ….” Schorer v. Schorer, 177 Wis. 2d
387, 397, 501 N.W.2d 916 (Ct. App. 1993).

¶22 In determining the value of the La Bri Group, the circuit court
recognized the difference between the “trailing twelve” computations of the
experts. The court further noted that the divergence in those approaches yielded a
difference in the value of the La Bri Group of $1.3 Million; that is, the value of the
La Bri Group assigned by Grau was $1.3 Million more than the value assigned by
Jeffrey’s expert. We need not set out the details here, but the circuit court noted
various reasons why it found Grau’s valuation of the La Bri Group to be “more
credible” than that of Jeffrey’s expert.

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¶23 On appeal, Jeffrey does not explain why the circuit court’s finding
that Angela’s experts’ opinions were more credible than Jeffrey’s expert’s
opinions, and the circuit court’s implicit acceptance of Angela’s expert’s opinion
about the “trailing twelve,” was an error. Instead, Jeffrey only repeats that the
circuit court erroneously exercised its discretion because it disagreed with his
expert. The opinions of the experts differed as to why the trailing twelve should
include, or not include, the revenue from the independent contractor. It was up to
the circuit court to decide which opinion was more credible. We see no reason to
overturn that decision based on any argument from Jeffrey. Therefore, that
exercise of discretion by the circuit court is affirmed.7

C. Other Potential Arguments Regarding the Valuation of the La Bri Group.

¶24 Jeffrey makes other statements regarding the circuit court’s
determination of the value of the La Bri Group. Jeffrey seems to focus on three
points: (1) One portion of Grau’s report regarding the value of the La Bri Group
gave a range of possible values for the sale of that entity whereas Jeffrey’s expert
gave only one value throughout his testimony; (2) Grau opined about the most
likely method of financing a purchase of the La Bri Group; (3) Grau considered
Jeffrey’s past annual compensation of $197,000 in determining the value of the La
Bri Group.

7
In the final sentence of Jeffrey’s brief in chief regarding this issue, Jeffrey asserts that
“revenue figures” from 2010 to 2015 relied on by Angela’s experts “were wrong.” This assertion
is not developed as an argument connected to facts noted anywhere else in the brief and has no
citation to the record. Therefore, we reject this assertion as an undeveloped argument and do not
consider it. See State v. McMorris, 2007 WI App 231, ¶30, 306 Wis. 2d 79, 742 N.W.2d 322
(court of appeals “may choose not to consider arguments unsupported by references to legal
authority, arguments that do not reflect any legal reasoning, and arguments that lack proper
citations to the record”).

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¶25 We fail to discern any developed argument in these statements from
Jeffrey. That is, he fails to develop any argument concerning why the circuit
court’s determination of the value of the La Bri Group was an error. Without a
developed argument, we need not consider these points further. See State v. Pettit,
171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (court of appeals will
not consider undeveloped arguments).

D. Income Taxes Owed for 2015 and 2016.

¶26 Jeffrey next argues that the circuit court erred by not ordering that
Angela be solely responsible for payment of the income taxes owed by the parties
for the years 2015 and 2016. Jeffrey’s assertion is convoluted and difficult to
understand, but, as best we can surmise, Jeffrey’s argument is as follows. The
parties owned a substantial amount of real estate before, and while, the divorce
was pending. According to Jeffrey, in years before the divorce was initiated,
losses from the real estate “sheltered income from [Jeffrey’s] other enterprises, in
particular, the [La Bri] Group,” so as to benefit the parties through the payment of
less income tax. When the tax benefits of holding certain parcels of real estate
were exhausted after several years, then that real estate was sold and other real
estate purchased. The newly purchased real estate then sheltered income of the
parties. During the pendency of the divorce, Angela placed lis pendens on the real
estate owned by the parties. Jeffrey argued in the circuit court that those lis
pendens blocked him from selling and purchasing real estate during the divorce so
as to obtain income tax benefits as in previous years and, from that, the parties
incurred what Jeffrey refers to only as “[h]undreds of thousands of dollars in
income taxes ….”

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¶27 The circuit court denied Jeffrey’s attempt to make Angela solely
liable for the tax debt for the 2015 and 2016 years and made the following
findings:

There’s no evidence, for instance, that Mr. La Bri sought
court approval to [remove] the lis pendens off or to
structure a real estate transaction model that would have
permitted the transfer of the real estate sought to be sold or
transferred out of his holdings to bring new real estate in,
while at the same time protecting the sanctity of the lis
pendens from the standpoint of [Angela].

….

The Court is satisfied that Mr. La Bri’s claim of
harm at Mrs. La Bri’s hands, [the claim of] blocking his
real estate investment opportunities from a tax standpoint
as a real estate professional[,] fails. If harm occurred, it
was due to Mr. La Bri’s failure to act and proceed on what
would have been legitimate motives and a legitimate effort
to achieve those transfers. Harm has not been proved.

¶28 On appeal, Jeffrey argues that the circuit court hindered him from
requesting relief from the lis pendens prior to trial because the circuit court barred
“mini-trials” on various issues before the divorce trial. However, the record shows
that the circuit court did no such thing. The circuit court at one point stated that,
as to four discrete motions, none of which had anything to do with the real estate,
the circuit court would hear those motions at the time of trial rather than having
“mini trials” on each issue raised by those motions. That order concerned only the
four issues raised by those motions. There is no basis to conclude that the circuit
court hindered Jeffrey from filing a motion for relief from the lis pendens before
trial, and Jeffrey’s argument fails.

¶29 Therefore, we affirm the exercise of discretion of the circuit court
which denied Jeffrey’s request that Angela be solely responsible for the 2015 and
2016 tax liability.

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E. Jeffrey’s Loan to Angela’s Brother.

¶30 Jeffrey contends that the circuit court erred by, in effect, finding that
a $150,000 loan from Jeffrey to Angela’s brother had no value, and the circuit
court erred by not making that loan amount part of Angela’s share of the divisible
property. Jeffrey appears to argue that the loan has “an ascertainable value” and
the loan should have been awarded as an asset to Angela because, as Jeffrey sees
it, Angela will collect the $150,000 from her brother.

¶31 Jeffrey does not dispute that, in an action separate from this divorce,
he sued Angela’s brother for non-payment of that loan, and a Waukesha County
Circuit Court dismissed Jeffrey’s lawsuit with prejudice based on a statute of
limitations defense asserted by Angela’s brother. Accordingly, the circuit court
reasonably determined in this divorce that the loan had no value because any
future attempt at collection of the loan will be barred by the result in that lawsuit.
Further, Jeffrey cites no evidence in the record that could lead to a factual finding
that, at a later date, Angela’s brother will pay any amount to Angela because of
that unpaid loan. Therefore, we conclude that the circuit court properly exercised
its discretion in regard to the loan.

F. Seek Work Order.

¶32 Jeffrey argues on appeal that Angela refused to obtain work during
the divorce after being ordered to seek work and, as a result, she should be,
according to Jeffrey, “sanctioned” in a manner not delineated by Jeffrey. More
specifically, the circuit court refused to grant Jeffrey’s motion to have Angela
found in contempt of court because Angela did not become employed during the
divorce. Jeffrey argues that this was an error by the circuit court. We disagree.

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¶33 While the divorce was pending, the family court commissioner
ordered Angela to “actively and diligently seek work.” Angela did not become
employed while the divorce was pending. Jeffrey filed a motion to have Angela
held in contempt for failing to comply with that order. The circuit court ordered
that Jeffrey’s motion would be taken up at the time of trial. The circuit court
refused to hold Angela in contempt for her failure to obtain employment while the
divorce was pending. The court found that there was insufficient evidence that
there were specific employers who would have offered Angela a job during the
divorce:

We had Tim Riley [an expert regarding Angela’s earning
capacity] in court talking about what she could make as an
engineer, which is fine looking at it from an imputed
income standpoint, but nobody came in and said what jobs
are really out there, could she have gotten a job [during the
divorce].

¶34 On appeal, the only evidence Jeffrey relies on for the proposition
that Angela violated the family court commissioner order is the expert testimony
from the trial regarding Angela’s earning capacity referred to by the circuit court
in its ruling. Jeffrey does not make an argument based on Angela’s alleged lack of
attempts to seek work. Rather, Jeffrey refers only to the fact that Angela failed to
obtain a job during the divorce.

¶35 We affirm the circuit court’s finding of fact that there was
insufficient evidence to support Jeffrey’s allegation that there were jobs available
to Angela in the area where she was living that she would have been qualified for
and for which she would have received an offer of employment. It was not
unreasonable for the circuit court to conclude that testimony about a party’s
earning capacity is distinguishable from testimony regarding specific jobs
available to Angela.

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¶36 For those reasons, we affirm the decision of the circuit court.

G. Valuation of La Bri Family Trust.

¶37 Next, Jeffrey argues that the circuit court erred in determining the
value of a trust. We reject Jeffrey’s argument and affirm the decision of the circuit
court.

¶38 The 2005 La Bri Family Trust is an irrevocable trust that has life
insurance policies as assets, and those policies had cash surrender value. During
the pendency of the divorce, Angela borrowed $110,440 from the trust, leaving
trust assets in the amount of $23,560.

¶39 At trial, the circuit court determined that the value of the irrevocable
trust was $23,560. The court also exercised its discretion in deciding that the
$110,440 loan to Angela, which was not repaid, would not be included in the
calculations to balance the property division.8 The circuit court exercised its
discretion in that way because Jeffrey took substantial amounts of money from the
parties’ accounts during the divorce to pay for what Jeffrey claimed were living
expenses. The precise amount of funds taken by Jeffrey could not be determined
but, nonetheless, these living expenses reduced the divisible property. In light of
Jeffrey’s expenditures, the circuit court determined that it was equitable that the
loan to Angela from the trust not be considered in the equalization calculation
regarding the division of property.

8
This decision had the effect of increasing by $55,220 (one-half of $110,440) the
amount Jeffrey owed to Angela to equalize the property division.

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¶40 Jeffrey does not argue that the circuit court erred because of a lack of
evidence showing that the amount he took from the parties’ accounts during the
divorce was comparable to the amount Angela borrowed from the trust. Rather,
he argues on appeal that, because Angela used the money from the loan for her
attorney fees, the court’s exercise of discretion regarding the loan should be
analyzed as an award of attorney fees.9 According to Jeffrey, because the circuit
court did not make findings about Angela’s need for attorney fees, the circuit
court’s decision should be reversed.

¶41 We reject Jeffrey’s argument because the premise of his argument is
that there was an award of attorney fees. However, how Angela used the money is
beside the point in reviewing the circuit court’s exercise of discretion in equitably
dividing property in this circumstance.

¶42 We reject Jeffrey’s contention and conclude that the circuit court did
not erroneously exercise its discretion.

H. Amount of Family Support.

¶43 In the circuit court, the parties agreed that the court should award
family support rather than separate awards for child support and maintenance.
Jeffrey argues that the circuit court erred in determining the amount of family
support that he owes Angela.

9
Angela misstates the record in arguing that there is no basis in the record to conclude
that the money from the trust loan was used to pay her attorney fees. Angela’s attorney
represented to the circuit court during argument that the money from that loan was used to pay
Angela’s attorney fees.

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¶44 Family support encompasses its component parts, child support and
maintenance, in a single obligation. Vlies v. Brookman, 2005 WI App 158, ¶8,
285 Wis. 2d 411, 701 N.W.2d 642. A family support award should be based on
the same criteria used to fashion child support and maintenance orders. Id., ¶14.
This court overturns a circuit court’s family support award only if there was an
erroneous exercise of discretion. Id., ¶13. A discretionary decision is sustained if
it is based upon the facts of record and relies on the appropriate standard of law.
Id.

¶45 For context, we now set out facts material to the circuit court’s
determination of the amount of family support.

¶46 The court awarded sole legal custody of the minor child of the
parties to Angela with times of supervised physical placement to Jeffrey.

¶47 The circuit court made the following findings regarding Angela’s
income, and Jeffrey does not contend in this court that the circuit court’s
determination of Angela’s income was incorrect. $60,000 of earned income was
imputed to Angela. The circuit court also determined that, from the property
division equalization payments from Jeffrey, Angela will have $2,000,000 to
invest. That amount, at a five percent interest rate, will produce investment
income for Angela of $100,000 per year, for a total income of $160,000 per year
for Angela.

¶48 The circuit court found that Jeffrey has $300,000 earned income per
year and yearly investment income of $493,000, for a total yearly income of
$793,000. Jeffrey does not dispute, in this court, the circuit court’s findings
regarding his income.

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¶49 As mentioned, one component of family support is child support. In
setting child support, a circuit court must set family support at an amount
consistent with the factors on child support presented in WIS. STAT. § 767.511 and
the child support guidelines in WIS. ADMIN. CODE ch. DCF 150 (June 2019).10
See Vlies, 285 Wis. 2d 411, ¶¶15-16. In setting the child support component of
family support, the circuit court considered calculations from the parties regarding
§ 767.511 and ch. DCF 150 and set the child support component of family support
at $7,322 per month. Jeffrey does not contend on appeal that the circuit court’s
determination of the child support component of family support is inconsistent
with § 767.511 or ch. DCF 150.

¶50 The circuit court then determined the maintenance component of
family support. We need not detail the lengthy and substantive findings of fact
from the circuit court related to maintenance, but we note the following. In its
analysis, the circuit court explicitly considered and made findings regarding each
of the statutory factors concerning maintenance set forth in WIS. STAT. § 767.56.
The circuit court considered the calculations submitted by the parties regarding the
income tax effects on Jeffrey and Angela from the payment and receipt of family
support. The court also considered the calculations from the parties concerning
the amount of disposable income each party would have available to them based
on various family support amount scenarios. After considering those facts and
factors, the circuit court set the maintenance component of family support at
$11,728 per month, making Jeffrey’s family support obligation to Angela $19,050
per month.

10
All references to the Wisconsin Administrative Code ch. DCF 150 are to the June
2019 version unless otherwise noted.

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¶51 Jeffrey advances three arguments regarding the amount of family
support awarded, and we reject each.

¶52 First, Jeffrey argues that the amount of family support he must pay is
an unreasonable hardship on him, while Angela has a disproportionately higher
standard of living than he has. However, Jeffrey gives no citation to the record to
support the factual contention that the family support award will produce disparate
standards of living. That, alone, is enough for us to reject Jeffrey’s argument. See
State v. McMorris, 2007 WI App 231, ¶30, 306 Wis. 2d 79, 742 N.W.2d 322
(court of appeals “may choose not to consider ... arguments that lack proper
citations to the record”). At any rate, we reject Jeffrey’s contention on the merits.
Jeffrey does not dispute, and the circuit court found that, after paying family
support, Jeffrey will have available to him 56.4% of the parties’ disposable
income, and Angela will have 43.6% of the parties’ disposable income. The minor
child will be with Angela the majority of the time because Angela has sole legal
custody of the minor child, and Jeffrey has supervised physical placement with the
child. Under those circumstances, we fail to see any factual basis for Jeffrey’s
assertion that Angela has a disproportionately higher standard of living than
Jeffrey. Jeffrey has a significantly larger amount of the disposable income of the
parties, and Jeffrey has only one person in his household most of the time whereas
Angela generally has two persons in her household with the attendant costs of two
people.

¶53 Second, Jeffrey argues that the circuit court did not explain why the
amount of family support awarded was reasonable or fair. Jeffrey’s argument
consists of listing a few subjects the circuit court could have mentioned but did
not. The circuit court reviewed the applicable statutory and administrative
regulation factors regarding both child support and maintenance, made factual

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findings that Jeffrey does not dispute, considered the detailed family support
proposals made by the parties, and exercised its discretion in a way that awarded
less than 44% of the disposable income of the parties to Angela. Without an
explanation from Jeffrey as to why the circuit court’s analysis was wrong, we fail
to see any reason to overturn the circuit court’s exercise of discretion regarding the
amount of family support awarded.

¶54 Finally, Jeffrey argues that the circuit court did not, in setting family
support, sufficiently consider the “additional expenses” that he will have because
he owes a $3,880,687 property division equalization payment to Angela. This
large cash equalization payment was necessary to comply with Jeffrey’s request
that he be awarded the vast majority of the divisible assets, which naturally
required cash equalization on this scale. Jeffrey also agreed that he should pay
family support. Angela argues that the court gave Jeffrey what he wanted, and
now he complains about it. We agree.

¶55 Moreover, Jeffrey does not explain how his property division
equalization payment to Angela should have affected the circuit court’s decision
regarding family support. Without any such argument from Jeffrey, there is no
basis on which we could conclude that the circuit court erroneously exercised its
discretion.

¶56 In sum, we affirm the circuit court’s decision regarding the amount
of family support to be paid from Jeffrey to Angela.

I. Term of Family Support.

¶57 Finally in the appeal, Jeffrey contends that the circuit court
erroneously exercised its discretion by setting a twelve-year term for his family

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support payments. Because of the age of the minor child of the parties, the child
support component of family support will end well before the twelve-year term set
by the circuit court, leaving only maintenance payments form Jeffrey to Angela.
Accordingly, we consider, as did the circuit court, the twelve-year term as a limit
only on the term of the maintenance payments from Jeffrey to Angela.

¶58 The term of maintenance is left to the discretion of the circuit court
and will be upset only if there is an erroneous exercise of discretion. See Wikel v.
Wikel, 168 Wis. 2d 278, 282, 483 N.W.2d 292 (Ct. App. 1992).

¶59 The circuit court made the following findings regarding the term of
maintenance. The court considered whether there should be an indefinite term of
maintenance but was satisfied that was not necessary for Angela to be able to
“maintain her lifestyle.” In addition, the court determined that other reasons to not
have indefinite maintenance are the size of the marital estate and that it had been
divided equally. The court also considered the length of the marriage and that, at
some point, Jeffrey’s maintenance payments to Angela should end. The circuit
court noted that, when the child support component of family support ends, about
three years after the circuit court’s decision, “that would call for a re-evaluation of
the maintenance.” In other words, during the twelve-year term of maintenance
Jeffrey may request a lessening or termination of maintenance based on changes in
the financial circumstances of the parties. See WIS. STAT. § 767.59(1f). The
circuit court then set the term, based on what was known at the time of trial, at
twelve years.

¶60 We reject Jeffrey’s argument for the following reasons. First,
Jeffrey has not stated either how that exercise of discretion by the circuit court was
incorrect or what alternative term of maintenance the circuit court should have

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awarded. Therefore, Jeffrey’s argument is undeveloped and we need not consider
it further. See Pettit, 171 Wis. 2d at 646-47 (court of appeals will not consider
undeveloped arguments). Second, Jeffrey has not, in his reply brief on his appeal,
responded to the arguments of Angela supporting the term of the maintenance set
by the court and, as a result, we consider Jeffrey to have conceded the argument.
See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109,
279 N.W.2d 493 (Ct. App. 1979) (stating that a failure to refute an argument
constitutes a concession). Third, we reject Jeffrey’s argument because we
conclude that the circuit court considered appropriate factors and reasonably
exercised its discretion in setting the term of maintenance.

¶61 For those reasons, we affirm the circuit court on all issues raised in
Jeffrey’s appeal. We now consider the issues raised in Angela’s cross-appeal.

III. Angela’s Cross-Appeal.

A. Angela’s Claim of Waste of Marital Assets.

¶62 Angela alleged in the circuit court that Jeffrey committed waste by
purchasing, within an approximately three-year period while the divorce was
pending, vast amounts of liquor. The circuit court rejected Angela’s claim of
waste. Angela appeals, and we affirm the circuit court on this issue.

1. Standard of Review.

¶63 In Covelli v. Covelli, 2006 WI App 121, 293 Wis. 2d 707, 718
N.W.2d 260, we discussed the standard of review concerning the division of
property, including claims of waste. “The division of the marital estate is
discretionary and we will sustain it if the trial court examined the relevant facts,
applied a proper standard of law, and using a demonstrated rational process,

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reached a conclusion that a reasonable judge could reach.” Covelli, 293 Wis. 2d
707, ¶13 (citing Liddle v. Liddle, 140 Wis. 2d 132, 136, 410 N.W.2d 196 (Ct.
App. 1987)). We will not overturn findings of fact regarding a waste of marital
assets issue unless those findings are clearly erroneous. Id. (citing State v.
Holmgren, 229 Wis. 2d 358, 366, 599 N.W.2d 876 (Ct. App. 1999)).

2. Waste.

¶64 In dividing the property of the parties in a divorce, the court may
consider each party’s contribution to the marriage and, more particularly, “each
party’s efforts to preserve marital assets.” Id., ¶29 (quoting Anstutz v. Anstutz,
112 Wis. 2d 10, 12, 331 N.W.2d 844 (Ct. App. 1983)). “The court may require a
party to pay the debts arising from his or her squandering of marital assets or the
intentional or neglectful destruction of property.” Id. (citing Anstutz, 112 Wis. 2d
at 12-13).

3. Analysis.

¶65 Jeffrey does not dispute that, during a forty-two-month period while
the divorce was pending, he spent a total of $1,030,302 on numerous bottles of
liquor. Jeffrey does not dispute that the average amount that he spent on each
bottle was approximately $2,000.

¶66 The circuit court made the following findings pertinent to Angela’s
claim of waste. Each of the liquor bottles in question was opened by the time of

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trial.11 There was no testimony regarding the value of specific bottles of liquor
before they were opened and, once opened, each bottle no longer had any value.
Jeffrey did not abuse alcohol. The circuit court found credible the testimony that
Jeffrey bought the liquor for use in his business, which we take as referring to
entertaining clients of the La Bri Group. The court made the following
observations:

It’s an interesting issue because it’s so much money on
liquor and alcohol. It’s almost an exotic issue. It could be
a red herring-type issue too because it diverts attention
from what is going on in the case…

….

… What has been presented as evidence is almost a shock
value of large amounts of money spent on liquor.

The court then denied Angela’s claim of waste.

¶67 Angela advances three arguments in her attempt to overcome the
circuit court’s finding of fact that, while having an initial “shock value,” the liquor
was used for business purposes and, as a result, was not a waste of marital assets.
We reject each argument.

¶68 First, Angela argues that all the purchased liquor could not have
been used for business purposes because Jeffrey’s accountant, in an income tax
return for the parties, noted a business expense deduction of only $100,000 for the
cost of alcohol during one of the years within the forty-two-month period in which
the disputed liquor was purchased. However, Angela does not explain how a
11
Angela admits in her cross-appeal brief in chief that “[Jeffrey] also testified that all his
bottles of liquor were opened ….” At other points of the same brief, Angela argues that the
bottles were not opened. But, Angela points to no place in the record that could upset the court’s
finding of fact on this point.

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determination by an accountant, which may have been made based on an Internal
Revenue Service regulation, is dispositive on the question of whether the circuit
court had a basis to conclude that Jeffrey’s purchase of the disputed liquor was for
business purposes. In other words, Angela does not explain why an IRS
regulation, or an accountant’s opinion, about a limit on the amount of liquor that
can be deducted for income tax purposes changes the fact that Jeffrey purchased
the alcohol for business purposes. On this ground, we reject Angela’s argument.

¶69 Second, Angela argues that, because some of the liquor was
purchased through Jeffrey’s personal accounts rather than through business
accounts, the liquor could not have been purchased for business purposes. We
reject Angela’s contention because it does not undermine the circuit court’s
finding of fact. The circuit court implicitly determined that the liquor was
purchased for business purposes even though Jeffrey sometimes wrote out a
personal check or purchased it using a personal credit card, and we see no basis to
overturn that finding.

¶70 Finally on this issue, Angela argues very briefly that the liquor could
not have been used for business purposes because Jeffrey testified at trial that he
“collected” high-end liquor. We will assume that Jeffrey testified to that effect.
But, it was up to the circuit court to weigh the evidence and, here, the circuit court
gave more weight to the testimony about using the liquor for business purposes
than Jeffrey’s testimony about collecting liquor. For this reason, we conclude that
the circuit court’s finding was not clearly erroneous.

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¶71 Therefore, we affirm the circuit court’s decision that Jeffrey’s
purchase of liquor during the marriage was not waste.12

B. Cash Withdrawals by Jeffrey During the Divorce.

¶72 In the circuit court, Angela contended that Jeffrey should be charged
with the $327,778 in cash that he withdrew from his bank accounts during the
pendency of the divorce because Jeffrey did not account for the expenditures or
provide receipts for how the money was spent. Angela contends on appeal that the
circuit court erred because it did not award to her an amount based on these
expenditures by Jeffrey. The circuit court made factual findings on this issue and
denied Angela’s request.

¶73 The only authority on which Angela bases her argument is WIS.
STAT. § 767.63. However, that statute applies only to assets “transferred for
inadequate consideration, wasted, given away, or otherwise unaccounted for by
one of the parties within one year prior to the filing of the petition ….”
Sec. 767.63. As Angela concedes in her briefing, the amounts she now complains
of were all spent by Jeffrey during the pendency of the divorce and not within one

12
Angela argues, for the first time in her reply brief in the cross-appeal, that Jeffrey’s
purchase of the liquor was a violation of WIS. STAT. § 767.117 which prohibits “transferring, or
otherwise disposing of property owned by either or both of the parties, without the consent of the
other party or an order of the court” during the pendency of the divorce. We need not consider
arguments made for the first time in a reply brief, Jeffrey did not have an opportunity to respond
to that argument, and we reject the argument for those reasons. See Roy v. St. Lukes Med. Ctr.,
2007 WI App 218, ¶30 n.6, 305 Wis. 2d 658, 741 N.W.2d 256 (“It is a well-established rule that
we do not consider arguments raised for the first time in a reply brief.” (quoting Bilda v. County
of Milwaukee, 2006 WI App 57, ¶20 n.7, 292 Wis. 2d 212, 713 N.W.2d 661)).

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year prior to the filing of the petition for divorce. As a result, Angela’s argument
fails for a lack of support.13

¶74 In sum, we affirm the circuit court on all issues raised in the cross-
appeal.

CONCLUSION

¶75 For these reasons, we affirm the judgment and the order of the
circuit court.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.

13
For the first time in her reply brief regarding the cross-appeal, Angela makes a brief
reference to WIS. STAT. § 767.117(1)(b). Again, we need not consider arguments made for the
first time in a reply brief, Jeffrey did not have an opportunity to respond to that argument, and we
reject the argument for those reasons. See Roy, 305 Wis. 2d 658, ¶30 n.6.

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