COURT OF APPEALS

DECISION

DATED AND FILED

February 25, 2021

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. 2019AP2022 Cir. Ct. No. 2018FA27

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

IN RE THE MARRIAGE OF:

HERBERT LEE CODY, JR.,

 PETITIONER-APPELLANT,

 V.

DAWN MARIE CODY,

 RESPONDENT-RESPONDENT.

APPEAL from a judgment of the circuit court for Lafayette County: 

DUANE M. JORGENSON, 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. 2019AP2022

2

¶1 PER CURIAM. Herbert Cody appeals a circuit court judgment of 

divorce. The issue is whether the circuit court erroneously exercised its discretion 

in ordering Herbert to pay maintenance to Dawn Cody.

1

 We conclude that the 

circuit court reasonably exercised its discretion. Accordingly, we affirm.

Background

¶2 Herbert and Dawn were married in 2001 and did not have any children 

together. Herbert filed a petition for divorce on May 23, 2018. Both parties were 

in their fifties at the time of divorce.

¶3 The parties both entered into the marriage with existing debt 

obligations. Dawn had purchased a house in Hales Corners, Wisconsin, in 1998 and 

had a mortgage on the house. During the marriage, the parties refinanced the house 

in both parties’ names. The parties resided together there until January 2014, when 

Herbert moved to Belmont, Wisconsin, for a job with QueenB Radio station.

¶4 After divorce proceedings were initiated in May of 2018, the parties 

sold the house in Hales Corners. The proceeds from the sale of the house were used 

to pay off marital debt. After the sale of the house, Dawn began renting a shared 

residence with her sister and another individual, where Dawn’s share of the rent and 

utilities totaled about $500 per month. Herbert remained in his apartment in 

Belmont, paying $380 in monthly rent in addition to utilities.

¶5 The parties entered into a stipulated agreement as to the division of 

their marital property and debts. The circuit court held a trial on May 9, 2019, solely 

on the issue of maintenance. After considering the testimony, documentary 

 

1

 Because the parties have the same last name, we refer to them by first names for clarity.
No. 2019AP2022

3

evidence and the record, the trial court found that Dawn’s gross pay from her 

employment at Heartland Advisors was $76,100 annually, while Herbert’s annual 

income from QueenB Radio was $94,760 without consideration of bonuses.2 The 

court granted the parties their requested divorce and ordered Herbert to pay $950 in 

monthly maintenance to Dawn for five years. The court later entered written 

findings of fact and conclusions of law. Herbert filed a motion for reconsideration, 

which the circuit court denied in an oral ruling on October 9, 2019. This appeal 

follows.

Standard of Review

¶6 An appellate court “will not disturb the circuit court’s decision 

regarding maintenance unless the award represents an erroneous exercise of 

discretion.” Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶17, 269 Wis. 2d 598, 676 

N.W.2d 452. “A circuit court engages in an erroneous exercise of discretion when 

it fails to consider relevant factors, bases its award on factual errors, makes an error 

of law, or grants an excessive or inadequate award.” Id., ¶18.

Discussion

¶7 WISCONSIN STAT. § 767.56(1c) (2017-18)3lists a number of factors 

for a trial court to consider when determining the amount and duration of a 

maintenance award, including the length of the marriage, the age and health of the 

 

2

 Dawn asserts in her respondent’s brief that she “successfully moved to correct the 

record” to reflect her base salary as $70,000. The record does not support this assertion. The record 

reflects that Dawn informed the court by letter that the findings of fact, conclusions of law, and 

judgment for divorce should be corrected to show that her gross annual salary is $70,000, and not 

$76,100 as stated in the written findings of fact. The court addressed this request in its oral ruling 

on the reconsideration motion, and declined to disturb its written finding as to Dawn’s salary.

3

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

noted.
No. 2019AP2022

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parties, the property division, the parties’ respective educational levels and earning 

capacities, the contributions of one party to the education or earning power of the 

other, and the standard of living enjoyed during the marriage. These factors

are designed to further two distinct but related objectives in 

the award of maintenance: to support the recipient spouse in 

accordance with the needs and earning capacities of the 

parties (the support objective) and to ensure a fair and 

equitable financial arrangement between the parties in each 

individual case (the fairness objective).

Laroque v. Laroque, 139 Wis. 2d 23, 32-33, 406 N.W.2d 736 (1987).

¶8 Herbert argues on appeal that the circuit court erroneously exercised 

its discretion in awarding maintenance to Dawn. He argues that (1) Dawn’s reason 

for requesting maintenance was so that she could work part-time and retire early; 

(2) Dawn misrepresented to the court that she needed a college degree to use her 

investment licenses to earn a more lucrative income; (3) the circuit court improperly 

considered the pre-marital value of the marital home; and (4) Dawn reneged on the 

parties’ agreement to sell the marital home to pay off debt. For the reasons 

explained below, we reject each of these arguments.

¶9 We turn first to Herbert’s argument that the circuit court erred in 

awarding maintenance to Dawn because, as phrased in the appellant’s brief, her 

reason for requesting spousal support was so that she could work part-time or retire 

early. Herbert argues that, with most of the marital debt paid off and with Dawn 

electing to live with her sister, Dawn does not need maintenance to support herself. 

Herbert asserts that the maintenance payments will result in approximately $19,000 

in annual discretionary income for Dawn to put away for an early retirement.

¶10 Dawn disputes Herbert’s assertion that she does not need maintenance 

to support herself, and further disputes his assertion that she will be able to retire 
No. 2019AP2022

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early. She argues that the record does not support Herbert’s assertion that, as a result 

of maintenance, she will be putting away $19,000 per year for retirement.

¶11 We agree with Dawn that the record does not support Herbert’s 

assertion on this point. Herbert relies mainly upon trial testimony from Dawn that

she had talked to her employer’s human resources department and that she planned 

to put away “the maximum,” or $19,000, into her 401K. However, as Dawn points 

out in her respondent’s brief, her hope to make the maximum allowable pre-tax 

contribution to her 401K is not the same thing as actually being able to do so. Her 

financial disclosure statement shows a monthly deduction in the amount of only 

$583.34 for retirement savings, or approximately $7,000 annually. Dawn testified 

unequivocally at trial, based on her financial disclosure statement, that her total 

monthly expenses left her “in the negative” and that, even if she wanted to, there 

was no possibility for her to put away anything more toward her retirement. Dawn 

also testified that she did not anticipate being able to retire at age 65, let alone earlier.

¶12 In making its findings, the circuit court adopted the budget and 

income shown in Dawn’s financial disclosure statement as an accurate showing of 

her needs for purposes of determining maintenance. Herbert does not argue in his 

appellant’s brief that Dawn’s financial disclosure statement or any of the 

information contained in it is inaccurate. In light of all of the above, we are satisfied 

that the record reflects a proper exercise of the circuit court’s discretion in awarding 

maintenance to Dawn under WIS. STAT. § 767.56(1c), based upon the financial 

disclosure statements and the testimony and other evidence presented by the parties 

at trial.

¶13 Next, relevant to the issue of earning capacity under WIS. STAT.

§ 767.56(1c)(e), we address Herbert’s argument that Dawn made a 
No. 2019AP2022

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misrepresentation to the court when she testified that she needed a college degree to 

use the Series 6, Series 63, and Series 65 securities licenses that she acquired at her 

employer’s request. Herbert asserts that Dawn is not required under WIS. STAT.

§ 551.401 or under Financial Industry Regulatory Authority (FINRA) to have a 

college degree in order to sell investments or give financial advice; that only the 

relevant licenses in good standing are required.

¶14 Dawn counters that, although she is not aware of any regulation 

requiring a college degree to sell securities or provide advice under her FINRA 

licenses, as a practical matter neither her current employer nor any potential 

employer would hire her without a college degree. This position is consistent with 

Dawn’s trial testimony. She testified that she acquired Series 6, 63, and 65 security 

licenses because her job required it. However, Dawn also testified that she currently 

works in marketing production and does not actually use the licenses. She testified 

that the licenses were obtained because, for the first year and a half after she started 

her employment at Heartland Advisors, Dawn worked in client services and had to 

have the ability to speak about products. Dawn testified that her licenses could give 

someone with a college degree a high earning capacity, but that she does not have a 

college degree. The circuit court heard all of the testimony regarding Dawn’s 

education, licenses, and earning potential, and determined that Dawn was currently 

earning at capacity. The circuit court’s determination is supported by the record and 

is not an erroneous exercise of discretion.

¶15 Next, we address Herbert’s argument that the circuit court improperly 

considered the pre-marital value of the marital residence “in disregard of the 

husband’s early joint tenancy and financial contributions over 18 years of 

marriage[.]” Herbert fails to develop his argument in the appellant’s brief with any 

factual or legal citations, and we reject it on that basis. See State v. Pettit, 171 Wis. 
No. 2019AP2022

7

2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (we may decline to review issues that 

are inadequately briefed).

¶16 Finally, Herbert asserts that he and Dawn agreed that they would pay 

off marital debt and leave the marriage without further financial obligation. He 

argues that, by requesting maintenance, Dawn reneged on that agreement. Herbert 

asserts that he was not aware that Dawn was going to ask for spousal maintenance 

until a court hearing in November of 2018, after the house had been sold and the 

debts paid off. The record does not support Herbert’s assertion on this point. A 

response and counterclaim filed by Dawn on June 11, 2018, states explicitly that 

Dawn is requesting maintenance. Moreover, Dawn asserts in her brief that she never 

agreed or stipulated to waive an award of maintenance. Herbert did not file a reply 

brief disputing this assertion. A proposition asserted by a respondent on appeal and 

not disputed by the appellant in the reply brief is taken as admitted. See Schlieper 

v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994). We reject Herbert’s 

argument that Dawn waived maintenance or that she should be estopped from 

requesting it.

¶17 In sum, Herbert’s arguments do not show an erroneous exercise of 

discretion. In effect, Herbert is asking this court to view the evidence differently 

than the circuit court viewed it, with an emphasis on evidence that best supports his 

position. That is not appropriate under our standard of review. As our supreme 

court recognized, “a [circuit] court in an exercise of its discretion may reasonably 

reach a conclusion which another judge or another court may not reach[.]” Hartung 

v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). As discussed above, the 

circuit court considered relevant statutory factors and arrived at a decision which a 

reasonable judge could reach while properly considering the support and fairness 

objectives of maintenance.
No. 2019AP2022

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By the Court.—Judgment affirmed.

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

809.23(1)(b)5.