COURT OF APPEALS

DECISION

DATED AND FILED

February 2, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP363 Cir. Ct. No. 2020CV193

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

THE SCHARINE GROUP, INC.,

 PLAINTIFF-APPELLANT,

 V.

TAMERA J. DREHMEL AND KELLY S. BORDE,

 DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Columbia County: 

ANDREW W. VOIGT, Judge. Affirmed. 

Before Kloppenburg, Fitzpatrick, 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. 2022AP363

2

¶1 PER CURIAM. The Scharine Group, Inc. (“Scharine”) sued 

Tamera Drehmel and Kelly Borde seeking execution against the “cash 

equalization payments” ordered to be paid to Tamera and Kelly in their respective 

2018 divorce judgments. In those judgments, Donald Borde was ordered to make 

a $275,000 cash equalization payment to Tamera, and James Borde was ordered to 

make a $275,000 cash equalization payment to Kelly.

1

 Scharine alleged that the 

cash equalization payments, which “remain unpaid,” constitute “marital property”

and are, therefore, available to satisfy the debt that is owed to Scharine after it 

provided farm goods and services to the Borde brothers’ agricultural business in 

2017 while the parties were married. 

¶2 Scharine moved for summary judgment, seeking a declaration that 

Scharine “may execute against” the cash equalization payments to Tamera and 

Kelly “in satisfaction of its claim” for the business debt. The circuit court denied 

Scharine’s motion, awarded summary judgment to Tamera and Kelly, and 

dismissed Scharine’s complaint. 

¶3 On appeal, Scharine makes the same argument that it made in the 

circuit court: (1) the Borde brothers’ business debt to Scharine was incurred “in 

the interest of their marriages to Tamera and Kelly;” (2) Tamera and Kelly each 

received the right to a $275,000 “cash equalization payment” in their respective 

divorce judgments in lieu of equity in the Borde brothers’ farming business; and

(3) pursuant to WIS. STAT. § 766.55(2)(b) (2019-20)2, the payments are transfers 

 

1

 Because several of the individuals share the same last name, for ease of reading we 

follow the lead of the parties and generally refer to the individuals by their first names and to 

Donald and James collectively as “the Borde brothers.”

2

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2022AP363

3

to Tamera and Kelly of marital property and, therefore, are available to Scharine 

to satisfy the Borde brothers’ business debt.

3

 We reject Scharine’s argument that 

the payments constitute marital property and are, therefore, available to Scharine 

to satisfy the business debt. Accordingly, we affirm.

BACKGROUND

¶4 The following facts are undisputed for purposes of summary 

judgment.

¶5 Scharine is a corporation that sells agricultural products and 

services. In 2017, Scharine sold farm products and provided farm services to the 

Borde brothers, who, at the time, were partners in a farm operation. The balance 

due to Scharine for those sales and services is $157,437.70, plus late charges from 

September 30, 2018. 

¶6 When the debt to Scharine was incurred in 2017, Donald was 

married to Tamera and James was married to Kelly. In 2018, both couples 

divorced. 

¶7 As each of the couples agreed in a Marital Settlement Agreement 

incorporated as part of each divorce judgment, Tamera and Kelly were each to 

receive $275,000 from her ex-husband as a “cash equalization payment” to 

“equalize the marital property division.” Donald was to make Tamera’s payment

 

3

 Scharine clarifies that, inasmuch as the cash equalization payments have not yet been 

made, it does not seek a money judgment against Tamera and Kelly, but only a judgment against 

their “claims” for the cash equalization payments. Scharine does not assert that this distinction 

matters to our analysis of the issue on appeal, which, as stated by Scharine, is whether the 

payments constitute marital property available to Scharine to satisfy the Borde brothers’ business 

debt. Consistent with Scharine’s statement of the issue, we refer in this opinion only to the cash 

equalization payments.
No. 2022AP363

4

within 90 days of the final divorce hearing and Tamera was to have a lien against 

“any property awarded to the husband until the $275,000.00 payment is made to 

[Tamera] in full.” James was to make Kelly’s payment “within 5 calendar days” 

of having access to the proceeds from his lender after “refinancing or renewing” a 

loan. 

¶8 Sometime after entry of the divorce judgments, the Borde brothers 

each commenced Chapter 12 bankruptcy proceedings in the United States 

Bankruptcy Court for the Western District of Wisconsin.4 At the time that the 

Borde brothers commenced the bankruptcy proceedings, the Borde brothers had 

neither made the cash equalization payments to Tamera and Kelly as ordered in 

their respective divorce judgments nor paid Scharine the debt incurred by the 

Borde brothers’ business. The two Chapter 12 proceedings were jointly 

administered and a joint Chapter 12 plan was confirmed on October 15, 2020. 

¶9 In the Chapter 12 bankruptcy plan, Tamera’s and Kelly’s claims for 

the equalization payments and Scharine’s claim for the business debt were all 

categorized as “general unsecured claims.” The bankruptcy plan provided that the 

cash equalization payments owed to Tamera and Kelly “shall not be discharged in 

bankruptcy.”

5

 The bankruptcy plan provided that the debts owed to Scharine and

the remaining unsecured creditors were to be discharged after 36 months. 

 

4

 Bankruptcy Code Chapter 12, titled “Adjustment of Debts of a Family Farmer or 

Fisherman with Regular Annual Income,” enables financially distressed family farmers and 

fishermen to propose and carry out a plan to repay all or part of their debts to creditors over three 

to five years. 11 U.S.C.A § 12, § 1222(b)-(c). All references to the United States Code are to the 

2018 version.

5

 Debts incurred under a judgment of divorce are not dischargeable in bankruptcy 

pursuant to 11 U.S.C. § 523(a). 
No. 2022AP363

5

¶10 In the course of the bankruptcy proceedings, the bankruptcy court 

granted Scharine’s motion to pursue its claims against Tamera and Kelly.6 

Scharine filed this action against Tamera and Kelly in September 2020. As of the 

filing of the complaint, the Borde brothers had not paid the debt owed Scharine or 

made either of the $275,000 cash equalization payments to Tamera and Kelly. 

¶11 Scharine moved for summary judgment, requesting a declaration that 

it may execute against the cash equalization payments to Tamera and Kelly to 

satisfy the Borde brothers’ business debt. After briefing and oral argument by the 

parties, the circuit court denied Scharine’s motion, granted summary judgment to 

Tamera and Kelly, and dismissed Scharine’s complaint. 

¶12 Scharine appeals. 

DISCUSSION

¶13 We review the circuit court’s grant of summary judgment de novo, 

using the same methodology as the circuit court. R.W. Docks & Slips v. State, 

2001 WI 73, ¶12, 244 Wis. 2d 497, 628 N.W.2d 781. Summary judgment is 

proper if there is no genuine issue of material fact and a party is entitled to 

judgment as a matter of law. Id.; WIS. STAT. § 802.08(2) (summary judgment to 

the moving party) and (6) (summary judgment to the non-moving party). 

¶14 The resolution of this appeal requires that we determine whether, 

under WIS. STAT. § 766.55, the cash equalization payments ordered in Tamera’s 

and Kelly’s divorce judgments constitute marital property so as to be available to 

 

6

 Scharine does not assert that this order from the bankruptcy court was a statement from 

that court regarding the validity of Scharine’s claim in this lawsuit.
No. 2022AP363

6

satisfy the debt to Scharine incurred by the Borde brothers’ business during 

Tamera’s and Kelly’s marriages to the brothers. The application of a statute to 

undisputed facts presents a question of law that we review independently of the 

circuit court. Curda-Derickson v. Derickson, 2003 WI App. 167, ¶9, 266 Wis. 2d 

453, 668 N.W.2d 736; Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶9, 

400 Wis. 2d 417, 970 N.W.2d 1.

¶15 We first review the pertinent provisions in WIS. STAT. § 766.55. We 

then apply the provisions to the undisputed facts and explain our conclusion that

the cash equalization payments do not constitute “[m]arital property assigned to”

Tamera and Kelly and, therefore, are not available to satisfy the Borde brothers’ 

business debt incurred during the brothers’ marriages to Tamera and Kelly. See

§ 766.55(2m).

I. WISCONSIN STAT. § 766.55

¶16 WISCONSIN STAT. § 766.55, titled “Obligations of spouses,”

“establishes classifications of obligations, marital and individual, with which 

spouses may be involved, and clarifies what property is available to satisfy 

obligations of differing classes.” Curda-Derickson, 266 Wis. 2d 453, ¶12. 

Section 766.55 provides in relevant part:

(1) An obligation incurred by a spouse during 

marriage,[

7

] including one attributable to an act or omission 

 

7

 “During marriage” is defined as “a period in which both spouses are domiciled in this 

state that begins at the determination date and ends at dissolution or at the death of a spouse.” 

WIS. STAT. § 766.01(8).

The “determination date” is defined as “the last to occur of the following: (a) Marriage. 

(b) 12:01 a.m. on the date that both spouses are domiciled in this state. (c) 12:01 a.m. on 

January 1, 1986.” WIS. STAT. § 766.01(5)(a-c). 
No. 2022AP363

7

during marriage, is presumed to be incurred in the interest 

of the marriage or the family.

(2) After the determination date all of the following 

apply:

....

(b) An obligation incurred by a spouse in 

the interest of the marriage or the family may be 

satisfied only from all marital property and all other 

property of the incurring spouse ....

(2m) Unless the dissolution decree or any 

amendment to the decree so provides, no income of 

a nonincurring spouse is available for satisfaction of 

an obligation under sub. (2) (b) after entry of the 

decree. Marital property assigned to each spouse 

under that decree is available for satisfaction of

such an obligation to the extent of the value of the 

marital property at the date of the decree. If a 

dissolution decree provides that the nonincurring 

spouse is responsible for satisfaction of the 

obligation, the obligation may be satisfied as if both 

spouses had incurred the obligation.

Sec. 766.55 (clarifying footnote included where relevant.)

¶17 As stated, WIS. STAT. § 766.55(1) mandates that an obligation that 

has been incurred during marriage is presumed to be incurred “in the interest of 

the marriage or the family.” St. Mary’s Hosp. Med. Ctr. v. Brody, 186 Wis. 2d 

100, 110, 519 N.W.2d 706 (Ct. App. 1994); see § 766.55(1). This presumption 

“applies to the categories of obligations described in § 766.55(2)(b) through (d).” 

St. Mary’s, 186 Wis. 2d at 111. “[T]he statutory category into which an obligation 

falls determines the right of a creditor to reach the property of a spouse.” Id. at 

108. Pertinent here, and as quoted above, “an obligation incurred by a spouse in 

the interest of the marriage or the family may be satisfied only from all marital 

property and all other property of the incurring spouse.” Sec. 766.55(2)(b). Under 

§ 766.55(2m), also quoted above, “the extent of the value of the marital property 
No. 2022AP363

8

at the date of the [divorce judgment]” “is available for satisfaction of [an 

obligation under § 766.55(2)(b)].” Id. 

¶18 Under WIS. STAT. § 766.31(1), “All property of spouses is marital 

property except that which is classified,” by statute or agreement, as the individual 

property of one of the spouses. Sec. 766.31(1). Under WIS. STAT. § 766.01(15), 

“Property” is “an interest, present or future, legal or equitable, vested or 

contingent, in real or personal property, including digital property, as defined in 

[WIS. STAT. §] 711.03(10).” Under § 766.31(3), “Each spouse has a present 

undivided one-half interest in each item of marital property.” Sec. 766.31(3). 

A. Analysis

¶19 It is undisputed that the Scharine debt incurred by the Borde brothers 

during their marriages to Tamera and Kelly is an obligation in the interest of those 

marriages within the meaning of WIS. STAT. § 766.55(1). It is also undisputed that 

the divorce judgments did not make Tamera or Kelly responsible for the Borde 

brothers’ obligation to Scharine.8 Thus, the question on appeal is whether the cash 

equalization payments ordered to be made by the Borde brothers to Tamera and 

Kelly in their divorce judgments constitute “marital property” available to satisfy 

that debt under § 766.55(2)(b). 

¶20 Under WIS. STAT. § 766.55(2) and (2m), the cash equalization 

payments ordered in the divorce judgments are not marital property assigned to 

Tamera or Kelly. The divorce judgments required that the cash equalization 

 

8

 In addition, the divorce judgments provide that each of the Borde brothers shall hold 

their ex-spouses Tamera and Kelly, respectively, harmless on all the debts of the business. 
No. 2022AP363

9

payments be made at some future point: within 90 days for Tamera with a lien on 

property held by Donald until the payment was made, and upon refinancing or 

renewing a loan for Kelly. These payments are neither personal nor real property 

“assigned” to Tamera and Kelly. See § 776.55(2m) (providing that marital 

property “assigned to each spouse” is available to settle a debt incurred during 

marriage). Unlike the assets divided between the spouses in the divorce

judgments, the cash equalization payments did not exist during their marriages. 

Instead, each divorce judgment created a new obligation for one ex-spouse to 

compensate the other ex-spouse. See WIS. STAT. §§ 767.34(1) (stipulations 

between parties to a divorce must be approved by the court) and 767.34(3) (a 

judgment of divorce is effective when granted by the court).

¶21 Scharine itself acknowledges that “the Borde brothers did not 

transfer business assets to their ex-spouses.” The cash equalization payments were 

created by the divorce judgments as obligations that are extraneous to the marital 

property accumulated during the marriages. By their terms, the divorce judgments 

did not transfer marital property from the Borde brothers to Tamera and Kelly; 

rather, they required the payment of money from whatever sources the Borde 

brothers would choose to make available to satisfy the ordered payment 

obligations.

¶22 This conclusion is supported by the fact that each cash equalization 

payment is itemized in its own separate section apart from the list of marital
No. 2022AP363

10

property being assigned in each divorce judgment.

9

 That each payment is

separated out of the property division, with its own section describing the 

payment, reflects that these payments were not marital property that existed at any 

point before the divorce judgments were entered. Accordingly, the payments were 

not “marital property assigned” in the divorce judgments. 

¶23 Scharine argues that the cash equalization payments are transfers of 

marital property available to satisfy the Borde brothers’ debt to Scharine because 

the payments “compensate” Tamera and Kelly for their equity in the Borde 

brothers’ business assets. Scharine reasons that “[i]f the Borde brothers had 

liquidated their businesses instead of agreeing to compensate their spouses for 

their share of the equity, the divorce court would presumably have divided the 

proceeds between the spouses. Those proceeds would not have passed free and 

clear of the claims of business creditors.” Scharine then asserts that “[t]he same is 

true of the monetary claims provided in lieu of equity in these divorce 

proceedings.” This argument fails for at least the following reasons.

¶24 First, Scharine’s two-paragraph presentation of the argument is not 

supported by legal authority, and we could reject it on that basis alone. See 

Industrial Risk Insurers v. Am. Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 

 

9

In the judgment for the divorce between Tamera and Donald, there is a section entitled 

“Equalization of Marital Property Division” which is separate from a section entitled “Property 

Division.” This equalization section describes the “payment of $275,000 [] required to equalize 

the marital property division.” The section entitled “Property Division” also lists the “Cash 

Equalization Payment from the husband to the wife in the amount of $275,000.00” as the last 

item of property awarded to Tamera. The Cash Equalization Payment referenced in the property 

division section differs from the other property itemized in that section in that the other items of 

property all existed at the time of the divorce judgment. Given the payment’s listing in the 

separate cash equalization section, it is evident that its listing in the property division section does 

not indicate that the cash payment itself is marital property being awarded to Tamera. 
No. 2022AP363

11

Wis. 2d 148, 769 N.W.2d 82 (“Arguments unsupported by legal authority will not 

be considered, and we will not abandon our neutrality to develop arguments.”)

(internal citations omitted).

¶25 Second, this argument also lacks factual support. It is undisputed 

that the Borde brothers’ business assets were marital property. However, as 

explained above, unlike those assets that existed during the marriages, the cash 

equalization payments did not exist during the marriages. Once the marital 

property was divided in each divorce judgment, a new obligation was created upon 

the ex-spouse, to be satisfied from any source by the ex-spouse. This new 

obligation did not “assign” marital property to Tamera and Kelly. See WIS. STAT.

§ 766.55(2m).

¶26 Third, the record does not support the connections that Scharine 

attempts to draw between the Borde brothers’ business assets and the cash 

equalization payments. The divorce judgments provided that Tamera was to have 

a lien on James’s property until he made the cash equalization payment, and that 

Kelly was to be paid after Donald refinanced a loan. These conditions ensured

performance and enforcement of the payment obligations. They did not transform

the payments into marital property derived either from a lien on James’s property 

or refinancing of Donald’s loan.

¶27 Fourth, while the cash equalization payments to Tamera and Kelly 

are payments received “in lieu of” marital property, the ordering of those 

payments did not, as argued by Scharine, “convert” Tamera’s and Kelly’s equity 

in the marital property before divorce “to a claim for future payment.” The 

divorce judgments provided that Tamera and Kelly would receive future cash 

payments from their ex-spouses instead of portions of marital property to which 
No. 2022AP363

12

they may have been entitled. Nothing about these judgments involved the

assignment of marital property or transfer of marital property or rendered those

future payments marital property. 

¶28 Fifth, Scharine concedes that Tamera and Kelly “are not personally 

obligated to pay the debts incurred by the Borde brothers.” That concession, 

which is correct, leads to the following, and necessary, conclusion about 

Scharine’s argument if this court allows Scharine to capture a portion of either 

$275,000 obligation owed by each Borde brother to his ex-wife. That conclusion 

is that one of the following two alternatives must be true, and each shows why 

Scharine’s argument fails.

¶29 One alternative is that, at the time Scharine obtains a portion of the 

money owed by a Borde brother to either Tamera or Kelly, that money will have 

already been transferred by a Borde brother, and that money will then be owned 

by either Tamera or Kelly. In such an event, and contrary to the undisputed 

assertion of Scharine that Tamera and Kelly are not personally liable to pay the 

debts incurred by their ex-husbands, Tamera or Kelly will, in fact, be personally 

liable for the debt owed to Scharine. That is true because, in this scenario, a Borde 

brother paid the amount to his ex-wife as required by the divorce judgment and 

satisfied his obligation to his ex-wife, but Tamera or Kelly will not retain that 

money as it will be captured from them by Scharine. As a result, in this scenario, 

Scharine will have made Kelly or Tamera personally liable for the debt. 

¶30 In the alternative, at the time Scharine obtains a portion of the 

money owed by a Borde brother to either Tamera or Kelly, the funds will still be 

owned by a Borde brother. In that event, the money must be ordered by a court to 

be paid from an account owned by a Borde brother. However, the Borde brothers 
No. 2022AP363

13

are not parties to this action. Accordingly, this court does not have the authority to 

order amounts to be paid from an account owned by a Borde brother. Further, the 

bankruptcy court did not give Scharine permission to bring suit against either 

Borde brother.

¶31 Under either alternative, the account containing the cash equalization 

payment will have to be owned by either Tamera or Kelly or one of the Borde 

brothers. In either situation, as just noted, allowing Scharine to obtain a portion of 

the payment is untenable because Tamera and Kelly are not personally liable for 

this debt and the Borde brothers are not parties to this action.

¶32 These same reasons apply to Scharine’s restatement of its argument 

in its reply brief, that the payments are “traceable” from marital property. As 

explained above, the payments neither began as marital property nor transformed 

marital property to which they could be traced. There can be no tracing forward 

because there is no starting point in marital property.

10

¶33 In sum, Scharine fails to show that the cash equalization payments

constitute marital property that is available to satisfy the Borde brothers’ business 

debt under WIS. STAT. § 766.55.

 

10

 Scharine in its reply brief cites testimony at the divorce hearing to support its tracing 

argument. Not only does the argument come too late, but Scharine does not argue that resort to 

extrinsic evidence is necessary to resolve an ambiguity in the divorce judgment. We reject 

Scharine’s argument for these additional reasons. See Bilda v. County of Milwaukee, 2006 WI 

App 57, ¶20 n.7, 292 Wis. 2d 212, 713 N.W.2d 661 (“It is a well-established rule that we do not 

consider arguments raised for the first time in a reply brief.”); see also Pulkkila v. Pulkkila, 2020 

WI 34, ¶24, 391 Wis. 2d 107, 941 N.W.2d 239 (“A divorce judgment that is clear on its face is 

not open to construction.”) (quoting Washington v. Washington, 2000 WI 47, ¶17, 234 Wis. 2d 

689, 611 N.W.2d 261).
No. 2022AP363

14

CONCLUSION

¶34 For the reasons stated, we affirm the circuit court’s order denying 

Scharine’s summary judgment motion, entering summary judgment in favor of 

Tamera and Kelly, and dismissing the complaint. 

By the Court.—Order affirmed.

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

RULE 809.23(1)(b)5.