Francisco Javier Cervantes Zamarripa v. Ma. Aracely Sanchez Garcia

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.
June 25, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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 No. 2024AP347 Cir. Ct. No. 2021FA426

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN RE THE MARRIAGE OF:

FRANCISCO JAVIER CERVANTES ZAMARRIPA,

PETITIONER-APPELLANT,

V.

MA. ARACELY SANCHEZ GARCIA,

RESPONDENT-RESPONDENT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: FRANK M. GAGLIARDI, Judge. Affirmed.

Before Gundrum, P.J., Neubauer, and Grogan, 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).
No. 2024AP347

¶1 PER CURIAM. Francisco Javier Cervantes Zamarripa (Cervantes)
appeals from a judgment of the circuit court entered in this divorce case involving
his former wife, Ma. Aracely Sanchez Garcia (Garcia).1 Cervantes argues that the
court erroneously exercised its discretion in dividing the property of the marital
estate. We affirm.

¶2 Cervantes and Garcia were married in 2004. Cervantes petitioned
for divorce in 2021. The parties had one minor child when the divorce was
finalized. While Cervantes and Garcia were married, Cervantes and his sister
formed a rental-property business called Lupito Management Company (Lupito)
as equal partners. In September 2020, less than a year before he filed for a divorce
from Garcia, Cervantes and his sister entered into an agreement in which
Cervantes transferred his interest in Lupito to his sister, effectively dissolving the
partnership.

¶3 In exchange for his interest in Lupito, Cervantes received two
properties totaling $168,200 and a truck. Cervantes’ sister received ten properties
valued at approximately $865,000. After taking debt, recent sales, and the fair
market value of the remaining properties into consideration, Cervantes’ sister
received over $300,000 more in Lupito assets than did Cervantes as a result of the
transfer.

¶4 Cervantes transferred his interest in Lupito without Garcia’s consent
to, or even her knowledge of, the transaction. Prior to filing for divorce, Cervantes
also quit his full-time employment in which he averaged $35,000 annual income.

1
We follow the appellant’s lead and refer to the former husband here as “Cervantes” and
the former wife as “Garcia.”

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No. 2024AP347

He took a job with Lupito earning roughly half of what he made before. Cervantes
never discussed these employment decisions with Garcia prior to quitting his
full-time job.

¶5 The circuit court entered a judgment after four days of trial. The
court made its findings of fact and conclusions of law regarding all issues before
it, including child support, maintenance, and property division. As pertinent to
this case, the court included in the divisible property of the marital estate the assets
that Cervantes transferred to his sister in the year prior to his filing for divorce.
The court found, “by the greater weight of the believable evidence,” that
Cervantes had “purposefully engaged in conduct designed to defeat [Garcia]’s
lawful rights in respect to this marriage.” It further found that “[t]he clearest
evidence of [Cervantes]’ effort to defeat [Garcia]’s lawful rights is in the
grotesque imbalance between the property received by [Cervantes’ sister] and that
received by [Cervantes] in the Lupito division of properties.”

¶6 To account for the discrepancy between the value of the assets
Cervantes and his sister each received after the 2020 transfer, the circuit court
awarded Garcia two of the rental properties and ordered Cervantes to make an
equalization payment to Garcia to account for the rest of the value. Cervantes
filed a motion to reconsider the judgment of divorce, which the court granted in
part—issuing an amendment to child support and maintenance calculations—and
denied in part.2 Cervantes appeals.

2
The Hon. Bruce E. Schroeder presided over the court trial and entered the judgment of
divorce. The Hon. Frank M. Gagliardi presided over the hearing on the motion to reconsider.

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No. 2024AP347

¶7 Cervantes raises one issue on appeal: whether the circuit court erred
in including in the marital estate the assets that Cervantes transferred to his sister.
The determination of whether property is subject to division involves the
application of a statute to uncontested facts, which is a question of law that we
review independently. Waln v. Waln, 2005 WI App 54, ¶7, 280 Wis. 2d 253, 694
N.W.2d 452. Property division, however, is committed to the discretion of the
circuit court. Peerenboom v. Peerenboom, 147 Wis. 2d 547, 551, 433 N.W.2d
282 (Ct. App. 1988). We will uphold a property division if the court gave rational
reasons for its decision and based its decision on facts in the Record. Id. When
reviewing factual determinations, appellate courts search the Record for evidence
to support findings reached by the circuit court, not for evidence to support
findings the court could have reached but did not. Johnson v. Merta, 95 Wis. 2d
141, 154, 289 N.W.2d 813 (1980).

¶8 The weight and credibility to be given to testimony is uniquely
within the province of the circuit court. Siker v. Siker, 225 Wis. 2d 522, 528, 593
N.W.2d 830 (Ct. App. 1999). When two parties to a divorce present conflicting
testimony concerning the value of property, the circuit court’s job is to determine
the credibility of the witnesses, weigh the evidence, and resolve the dispute. See
Schwartz v. Linders, 145 Wis. 2d 258, 265, 426 N.W.2d 97 (Ct. App. 1988). In
such situations, the circuit court is the ultimate arbiter of the credibility of the
witnesses. Siker, 225 Wis. 2d at 528.

¶9 Cervantes asserts that the assets he transferred to his sister should
not have been included in the divisible marital estate because they were gifted or
inherited assets. “The general rule is that assets and debts acquired by either party
before or during the marriage are divisible upon divorce.” Derr v. Derr, 2005 WI
App 63, ¶10, 280 Wis. 2d 681, 696 N.W.2d 170. A circuit court “shall presume

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No. 2024AP347

that all property not described in [WIS. STAT. § 767.61(2)(a) (2023-24)3] is to be
divided equally between the parties.” Section 767.61(3).

¶10 Our statutes dictate that “[i]n an action affecting the family,” with
one exception that does not apply here, “any asset with a fair market value of $500
or more that would be considered part of the estate … and that was transferred for
inadequate consideration … within one year prior to the filing of the petition … is
rebuttably presumed to be property subject to division.” WIS. STAT. § 767.63; see
also Derr, 280 Wis. 2d 681, ¶11 (holding that “[w]hen a party to a divorce asserts
that property, or some part of the value of property, is not subject to division, that
party has the burden of showing that the property is non-divisible at the time of the
divorce”). Thus, Cervantes bore the burden of proving to the circuit court that the
assets he transferred to his sister were gifted or inherited.

¶11 After reviewing the Record and the arguments of the parties, we
conclude that Cervantes did not meet his burden to show that the properties were
gifted or inherited, and thus not subject to division. The evidence presented at trial
was sufficient to support the circuit court’s conclusion that Cervantes transferred
his Lupito assets to his sister for “inadequate consideration.” See WIS. STAT.
§ 767.63. As such, the value of the assets was properly included in the marital
estate. See id. Simply put, Cervantes has failed to demonstrate that the court
erroneously exercised its discretion in including their value in the property
division.

3
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP347

¶12 To further explain, Garcia testified at trial, and Cervantes conceded,
that Cervantes had contributed marital funds to purchase some of the properties.
Additionally, Cervantes’ sister claimed half of the income and expenses for Lupito
on her personal property taxes, while Cervantes and Garcia claimed the other half
on their marital tax returns. Garcia also testified that Cervantes transferred his
Lupito ownership to his sister without Garcia’s knowledge or involvement. The
circuit court adopted Garcia’s proposed findings and calculations in this regard,
implicitly demonstrating that it found her testimony on the issue more credible
than Cervantes’ testimony. The court found Cervantes’ actions of transferring his
interest to his sister for far less than it was worth and leaving his full-time job to
work for Lupito for considerably less pay, evidence of his intent to decrease the
value of the marital estate to prevent Garcia from retaining assets to which she is
entitled. Because it is within the province of the circuit court to assess witness
credibility, we will not second guess these factual findings. See Siker, 225
Wis. 2d at 528.

¶13 In sum, the circuit court made an explicit factual finding that
Cervantes intentionally transferred assets to his sister for far less than their worth
in an attempt to deprive Garcia of their value. The court applied the appropriate
law to the facts it found, and determined that fairness dictated the inclusion of the
assets in the divisible marital estate. Cervantes has failed to show that the court
erroneously exercised its discretion under the circumstances. At best, Cervantes
demonstrates that the court might have proceeded differently, but that is not
grounds for reversal. See Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d
16 (1981) (explaining our inquiry is whether circuit court exercised discretion, not
whether it could have exercised discretion differently); Johnson, 95 Wis. 2d at
154.

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No. 2024AP347

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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