Dorraine M. Mawhinney v. Wade A. Hallett

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.
December 5, 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 No. 2018AP1225 Cir. Ct. No. 2017FA168

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

DORRAINE M. MAWHINNEY,

PETITIONER-RESPONDENT,

V.

WADE A. HALLETT,

RESPONDENT-APPELLANT.

APPEAL from a judgment of the circuit court for Rock County:
JOHN M. WOOD, Judge. Affirmed.

Before Fitzpatrick, P.J., Graham and Nashold, 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. 2018AP1225

¶1 PER CURIAM. Wade Hallett, pro se, appeals a judgment of
divorce that divided marital property and awarded child support. Hallett contends
that the circuit court erred by setting aside the parties’ marital property agreement,
in its property division determinations, and by setting child support based on
Hallett’s earning capacity. Hallett also contends that his counsel was ineffective
during the divorce proceedings. For the reasons set forth below, we conclude that
we have no basis to disturb any of the circuit court’s decisions challenged in this
appeal. We affirm.

¶2 Hallett and Dorraine Mawhinney were married in December 2009.
Prior to the marriage, Hallett and Mawhinney entered into a limited marital
property agreement. In February 2017, Hallett was arrested and charged with
felony offenses. Hallett ultimately pled no contest to a single felony count of
incest of a child by a stepparent and was sentenced to ten years of initial
confinement and four years of extended supervision.

¶3 Mawhinney petitioned for divorce and moved to set aside the marital
property agreement, arguing that the agreement was inequitable at the time of
execution and at the time of divorce. The circuit court determined that the marital
property agreement was inequitable at the time of divorce due to the unforeseeable
change in circumstances of Hallett’s arrest, conviction, and ten-year prison
sentence and resulting loss of income. The court then divided the marital
property, finding that, under the circumstances, an unequal division of property in
Mawhinney’s favor was warranted. The court ordered Hallett to pay child support
based on his earning capacity prior to his incarceration, resulting in a monthly
child support obligation of $1,548.83. The court ordered Hallett’s property award
liquidated and the funds placed in a segregated account to fund the child support

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payments that Hallett would not be able to make during his incarceration. Hallett
appeals.

¶4 We review a circuit court’s decision as to the enforceability of a
marital property agreement for an erroneous exercise of discretion. See Button v.
Button, 131 Wis. 2d 84, 99, 388 N.W.2d 546 (1986). The division of marital
property and the award of child support are also committed to the circuit court’s
discretion. Hokin v. Hokin, 231 Wis. 2d 184, 190, 605 N.W.2d 219 (Ct. App.
1999). We will affirm the circuit court’s exercise of discretion “if it examined the
relevant facts, applied the correct standard of law and, using a demonstrated
rational process, reached a conclusion that a reasonable judge could reach.”
Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737. We
will uphold the circuit court’s factual findings unless those findings are clearly
erroneous. Greene v. Hahn, 2004 WI App 214, ¶9, 277 Wis. 2d 473, 689 N.W.2d
657.

Marital Property Agreement

¶5 Hallett argues that the circuit court should have upheld the marital
property agreement because there is a statutory presumption that such agreements
are enforceable, see WIS. STAT. § 767.61(3)(L),1 and because the court found that
the agreement was equitable at the time of its execution. He argues that the court
improperly considered Hallett’s no contest plea contrary to WIS. STAT. § 904.10,2

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
WISCONSIN STAT. § 904.10 provides, in relevant part: “Evidence of ... a plea of no
contest ... is not admissible in any civil or criminal proceeding against the person who made the
plea or offer or one liable for the person’s conduct.”

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and improperly considered Hallett’s loss of income as a waste of marital assets,
citing Long v. Long, 196 Wis. 2d 691, 695-97, 539 N.W.2d 462 (Ct. App. 1995)
(“[T]here is no Wisconsin law that holds a party’s income to itself be property
subject to division in a divorce.”).3 We are not persuaded.

¶6 A marital property agreement must meet three requirements to be
enforceable: “each spouse has made fair and reasonable disclosure to the other of
his or her financial status; each spouse has entered into the agreement voluntarily
and freely; and the substantive provisions of the agreement dividing the property
upon divorce are fair to each spouse.” See Button, 131 Wis. 2d at 89. Even if a
marital property agreement was equitable when it was entered into, it may be
unfair and thus unenforceable at the time of divorce if there has been a significant
change in circumstances such that the agreement no longer comports with the
reasonable expectations of the parties. See id. at 98-99. The question is whether
the parties were able to reasonably predict events such that the circumstances at
the time of divorce are within a range of circumstances anticipated by the parties
at the time they entered into the marital property agreement. Warren v. Warren,
147 Wis. 2d 704, 708-09, 433 N.W.2d 295 (Ct. App. 1988).

¶7 Here, the circuit court determined that Hallett’s conviction and
sentence to prison, along with the associated significant loss of income and trauma

3
Hallett also argues that the circuit court erred by delaying the divorce trial until after
Hallett’s sentencing in his criminal case. So far as we can tell, Hallett is contending that, had the
circuit court decided the property and child support issues prior to his plea and sentencing, the
court would not have been able to consider the fact of Hallett’s incarceration in making its
decisions. However, Hallett has not developed an argument as to why the scheduling of the
divorce trial would entitle him to relief from the divorce judgment, and we do not consider this
argument further. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992)
(we do not consider undeveloped arguments on appeal).

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to Mawhinney and her children, were unforeseeable changes in circumstances that
rendered the marital property agreement unfair at the time of divorce. The court
did not admit evidence of Hallett’s no contest plea against Hallett contrary to WIS.
STAT. § 904.10. Rather, the court considered the facts of Hallett’s conviction and
sentence and the resulting loss of income and trauma to the family as the
circumstances that existed at the time of divorce. Additionally, the court did not
consider Hallett’s lost income as property that was subject to division contrary to
Long. Again, the court considered the fact of the lost income as part of the
circumstances that existed at the time of the divorce. We conclude that the circuit
court properly exercised its discretion in setting aside the marital property
agreement.

Property Division Determinations

¶8 Hallett also contends that, after setting aside the marital property
agreement, the circuit court erred in its property division.4 He contends that the
court failed to consider what Hallett asserts was undisputed evidence that certain
property had been acquired by Hallett as gifts or inheritance and was therefore not
subject to division. See WIS. STAT. § 767.61(2). However, the court specifically
addressed Hallett’s claims of gifted or inherited property. The court found that
there was no credible evidence that any property was inherited, and there was no
itemization or value as to any gifted property. Thus, according to the court, there
were no inherited or gifted assets that the court could determine from the record

4
Hallett also contends that the circuit court erred by failing to assign additional debt to
Mawhinney. However, Hallett does not develop an argument as to why it was an erroneous
exercise of the court’s discretion not to assign that debt to Mawhinney, and we do not consider
this undeveloped argument further. See Pettit, 171 Wis. 2d at 646-47 (we do not consider
undeveloped arguments on appeal).

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before it that could be excluded from the property division. Hallett does not
present a developed argument challenging the circuit court’s factual and credibility
findings, and we discern no basis to disturb them. See Greene, 277 Wis. 2d 473,
¶9 (we uphold a circuit court’s findings of fact unless those findings are clearly
erroneous); Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641, 644, 340 N.W.2d 575 (Ct.
App. 1983) (circuit court “‘is the ultimate arbiter of the credibility of the
witnesses’” (quoted source omitted)); see also State v. Pettit, 171 Wis. 2d 627,
646-47, 492 N.W.2d 633 (Ct. App. 1992) (this court cannot act as advocate for
a party and will not consider undeveloped arguments).

¶9 Hallett contends that the circuit court erred by failing to properly
appraise the value of two businesses awarded to Mawhinney, the St. Louis
Antique Show and H&K Properties.5 However, the court made findings as to the
value of each of the two businesses. The court found that the value of the interest
in H&K Properties was $43,680. The court explained that it had not received any
expert testimony or credible evidence as to the value of the St. Louis Antique
Show, and determined that its value was $5,000. Hallett has not provided any
basis for this court to disturb the circuit court’s findings.

¶10 Hallett argues that the circuit court failed to consider that
Mawhinney improperly disposed of Hallett’s personal property and unnecessarily
disposed of household items and purchased new ones.6 However, the circuit court
5
Hallett contends that the circuit court in its property division should have also
considered the income generated from the businesses. However, the court considered the income
from the businesses in determining Mawhinney’s income.
6
Hallett also argues that the undisputed testimony established that Mawhinney wasted
marital asserts by mishandling the sale of another business, the Indianapolis Antique Show.
However, the portions of the transcripts that Hallett cites in support of this argument do not
establish that Mawhinney mishandled the sale of the business.

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found that Hallett had authorized a power of attorney to act on his behalf, and that
the power of attorney had made decisions as to taking possession of some items of
Hallett’s personal property and discarding others. The court found that there was
no evidence that any specific items of Hallett’s personal property were missing or
that any item had been intentionally mishandled, and that Hallett had not provided
evidence to support his valuation of clothing he claimed was improperly
discarded. The court also found that, based on the trauma of the events
surrounding the divorce, Mawhinney acted reasonably in disposing of household
items and purchasing new ones for her and her children. We have no basis to
disturb those findings.

¶11 Hallett also contends that the circuit court erred by deviating from
the presumption of an equal division of property. See WIS. STAT. § 767.61(3)
(court must start with the presumption that divisible property is to be divided
equally upon divorce). Hallett argues again that the court improperly considered
his no contest plea contrary to WIS. STAT. § 904.10, and also argues that the court
improperly considered his marital misconduct, contrary to § 767.61(3), in deciding
that an unequal division of property was warranted. He contends that the circuit
court failed to provide a rational basis for deviating from the presumption of an
equal property division. We are not persuaded.

¶12 A court may deviate from an equal division of marital property after
considering the factors listed in WIS. STAT. § 767.61(3)(a)-(m). Here, the court
properly considered the relevant statutory factors before dividing the parties’
property unequally. The court considered that it had been a nine-year marriage,
that Hallett brought more assets to the marriage than Mawhinney, and that there
was no property that was not subject to division. See § 767.61(3)(a) to (c). The
court considered that both parties had contributed to the marriage prior to Hallett’s

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arrest, but that Mawhinney had made significant contributions to managing the
household after Hallett’s arrest. See § 767.61(3)(d). The court also considered the
parties’ ages and health, including the emotional trauma to Mawhinney from the
circumstances surrounding Hallett’s arrest and conviction, Hallett’s higher earning
capacity, the need for Mawhinney to have a place to live with the parties’ child,
and the lack of a maintenance award. See § 767.61(3)(e), (g), (h), and (i). The
court considered the other economic circumstances of the parties, noting the
family’s loss of Hallett’s significant income, and the lack of any other comparable
source of income for Mawhinney, who would be responsible for the expenses of
the household, and the fact that Hallett would have his basic necessities met by the
state during his incarceration. See § 767.61(3)(g) and (j).

¶13 As part of its analysis of the statutory factors, the circuit court also
found that Hallett had wasted marital assets by entering a plea that led to his
conviction, sentence, and loss of income. We need not consider whether this was
error or whether Hallett’s actions resulted in a “waste” of a “marital asset” because
the circuit court’s analysis described above is sufficient to affirm the court’s
property division order. Nonetheless, we note the following. The court explained
that it found similarities between this case and Dudas v. Dudas, No. 2016AP326,
unpublished slip op. (WI App Mar. 21, 2017) (voluntary and unreasonable acts
leading to incarceration and resulting loss of income considered as waste of
marital assets under statutory catch-all factor, WIS. STAT. § 767.61(3)(m)).7 The

7
Here, the circuit court considered Hallett’s loss of income as waste of marital assets
under WIS. STAT. § 767.61(3)(d), contributions of the party to the marriage. In Dudas v. Dudas,
No. 2016AP326, unpublished slip op., ¶33 (WI App Mar. 21, 2017), the circuit court relied on the
catch-all factor, § 767.61(3)(m). However, the Dudas court relied on Anstutz v. Anstutz,
112 Wis. 2d 10, 13, 331 N.W.2d 844 (Ct. App. 1983), for the proposition that waste of marital
property can be considered in a property division upon divorce. See Dudas, No. 2016AP326,
(continued)

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court recognized that Dudas had been convicted following a jury trial, and that
here Hallett had entered a no contest plea. The court found, however, that the
cases were similar in that Hallett made a voluntary and unreasonable choice to
enter a plea that led to his conviction, incarceration, and loss of income. We are
not persuaded by Hallett’s argument that the court therefore effectively admitted
evidence of Hallett’s no contest plea against Hallett contrary to WIS. STAT.
§ 904.10, or that the court considered Hallett’s marital misconduct contrary to
§ 767.61(3). The court did not rely on the specific facts of the charges against
Hallett, and thus did not consider Hallett’s no contest plea as evidence that Hallett
admitted to voluntary and unreasonable criminal conduct. Rather, the court
considered Hallett’s entering a plea that led to his loss of income as part of the
court’s analysis of the statutory factors for property division. Moreover, the court
emphasized that the property division was not intended to punish Hallett for his
conduct. The court stated that it intended the property division to be fair and
equitable and to give due consideration to the factors under § 767.61(3). The court
stated that it found that an unequal property division in favor of Mawhinney was
fair and reasonable under the circumstances of the case, after consideration of the
statutory factors under § 767.61(3). We discern no basis to disturb the circuit
court’s exercise of discretion.

Child Support

¶14 Next, Hallett contends that the circuit court erred by setting Hallett’s
child support obligation based on his earning capacity, rather than on his actual

¶33. In Anstutz, the court stated that a party’s waste of marital assets may be considered in
connection with a party’s contribution to the marriage. Anstutz, 112 Wis. 2d at 13.

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income while incarcerated. Hallett again argues that the court impermissibly
considered Hallett’s no contest plea contrary to WIS. STAT. § 904.10 in deciding to
use Hallett’s income capacity rather than actual income. He contends that the
court should not have used his earning capacity instead of his actual income absent
a finding that he purposefully reduced his income in disregard of his child support
obligation, citing Edwards v. Edwards, 97 Wis. 2d 111, 119, 293 N.W.2d 160
(1980). Hallett also argues that the court erred by failing to consider the child’s
interests in setting child support. He argues that the court did not provide a
rational basis for using earning capacity rather than actual income and therefore
erroneously exercised its discretion. Again, we are not persuaded.

¶15 Under WIS. STAT. § 767.511(1)(a), the divorce court shall “[o]rder
either or both parents to pay an amount reasonable or necessary to fulfill a duty to
support a child.” In Modrow v. Modrow, 2001 WI App 200, 247 Wis. 2d 889,
634 N.W.2d 852, we held that a parent’s “incarceration is a valid factor for a
family court to consider in arriving at an initial determination of child support
because of the impact it has on the payor’s employability due to what may be
voluntary and unreasonable acts.” Id., ¶17. We further stated that “the court may
consider whether the crime was of an intentional nature, its potential effect on the
payor’s future income, the assets of the payor, how the needs of the children will
be met during the payor’s incarceration and any other factors which the court
deems relevant.” Id. Hallett attempts to distinguish Modrow by contending that
Modrow was a child support modification case and that Hallett entered a no
contest plea, which he asserts could not be used as evidence against him under
WIS. STAT. § 904.10. However, Modrow was not a child support modification
case. As here, the issue was the initial determination of child support. See
Modrow, 247 Wis. 2d 889, ¶11. Additionally, the circuit court here stated that it

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was Hallett’s decision to enter a no contest plea, not his criminal conduct, that was
the unreasonable and voluntary act that reduced his income. The court specifically
recognized that Hallett had not been convicted after a jury trial, and the court did
not rely on any of the conduct alleged against Hallett in his criminal case. Again,
the court did not consider Hallett’s no contest plea as evidence that Hallett
admitted to voluntary and unreasonable criminal conduct. Rather, as in Modrow,
the court properly considered Hallett’s voluntary and unreasonable act that led to
his conviction and loss of income in its child support determination.

¶16 Along with the fact of Hallett’s incarceration, in setting child support
the court considered the loss of income to support the child and the need for
continued support of the child. See id., ¶17. The court therefore set child support
based on Hallett’s earning capacity, and then ordered Hallett’s property award
liquidated and placed in a segregated account to fund Hallett’s child support
payments during his incarceration. See WIS. STAT. § 767.61(4) (authorizing court
to place portion of property award in a segregated account to fund the support of
the child). We discern no erroneous exercise of the circuit court’s discretion.

Ineffective Assistance of Counsel

¶17 Finally, Hallett contends that his trial counsel was ineffective.
However, a litigant has no constitutional right to counsel in a civil matter. See
Village of Big Bend v. Anderson, 103 Wis. 2d 403, 405, 308 N.W.2d 887 (Ct.
App. 1981). Accordingly, Hallett’s claim that his trial counsel was ineffective
does not entitle him to relief.

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By the Court.—Judgment affirmed.

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

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