COURT OF APPEALS

DECISION

DATED AND FILED

November 10, 2020

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. 2019AP961 Cir. Ct. No. 2016FA178

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN RE THE MARRIAGE OF:

CONSTANCE LOUISE BROOKSHAW,

 JOINT-PETITIONER-RESPONDENT,

 V.

PATRICK RICHARD BROOKSHAW,

 JOINT-PETITIONER-APPELLANT.

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

JOSEPH D. BOLES, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, 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. 2019AP961

2

¶1 PER CURIAM. Patrick Brookshaw appeals a judgment of divorce.1

Patrick contends the circuit court erroneously exercised its discretion by:

(1) failing to make explicit findings relating to the statutory factors in deciding not 

to deviate from a 50/50 property division; (2) failing to hold a hearing to 

determine what, if any, portion of Constance Brookshaw’s attorney fees were the 

result of Patrick’s improper conduct; and (3) requiring Patrick to pay interest on 

the amounts he was ordered to pay Constance at rates different from the statutory 

rate set forth in WIS. STAT. § 815.05(8) (2017-18).

2 We reject these arguments 

and affirm. 

BACKGROUND

¶2 The parties were married in April 2005. This was Patrick’s first 

marriage and Constance’s second. Both parties brought property to the marriage. 

The parties separated in 2016 and were divorced in October 2018. No minor 

children were born as a result of the marriage. They did not enter into a prenuptial 

or postnuptial agreement, and both parties waived maintenance payments at the 

final hearing. 

¶3 At the final hearing, the primary issue was whether the circuit court 

should deviate from a 50/50 property division in favor of Patrick based on 

property Patrick brought to the marriage. Specifically, Patrick urged the court to 

consider the fact that he owned one-half of The Bluffs Bar prior to the marriage.

Although Patrick and Constance bought the remaining one-half interest in The 

 

1

 We refer to the parties individually by their first names. 

2

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

noted. 
No. 2019AP961

3

Bluffs Bar for $350,000 in 2015, Patrick asserted that Constance contributed 

nothing significant to the business either before or after that purchase, although 

she did work in the bar from time to time. 

¶4 Patrick also argued that the circuit court should deviate from a 50/50 

division in his favor because prior to the marriage he owned the land upon which 

the parties’ homestead was built. Constance testified that Patrick paid $45,000 for 

the land prior to the marriage and he contributed $125,000 from the sale of his 

house toward the homestead. Constance contributed $17,000 to $20,000 from the 

sale of her pre-marital home. Additionally, the parties incurred a mortgage debt of 

$150,000, which was paid in full with marital funds. Patrick paid all real estate 

taxes on the home after the 2016 separation. The record reflects that the fair 

market value of the homestead at the time of divorce was $345,000. 

¶5 Finally, in Patrick’s pretrial submission, he asserted that $200,000 of 

the $296,400 in his Ameriprise brokerage account predated the parties’ marriage. 

At trial, however, Patrick testified the premarital value was “not that high,” 

although he could not specify the exact amount of the account’s premarital value. 

Patrick’s position was that the premarital portions of both parties’ retirement 

accounts should be included in the property division.

¶6 The circuit court found that Patrick “was not cooperative in 

discovery and failed to produce information demanded from him” by Constance.

3

 

3

 Constance sought sanctions against Patrick including contempt for: (1) the willful 

disregard to supply information to the court and opposing counsel pursuant to the pretrial orders; 

(2) failing to reply to formal discovery; (3) disregard of production of documents under a 

subpoena; and (4) failing to produce information and documents stipulated to be produced during 

the deposition. 
No. 2019AP961

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Additionally, Patrick failed to provide the required financial disclosure statement.

He also invoked his Fifth Amendment rights when questioned about personally 

keeping cash from the machines at The Bluffs Bar.

¶7 The circuit court then ordered Patrick to pay Constance a property 

division equalization payment of $463,952.50 on or before March 31, 2019. This 

resulted in an approximately equal property division between the parties. The 

court further ordered that any sum unpaid on that obligation would accrue interest 

at a rate of 7% annually, commencing January 1, 2019. 

¶8 The circuit court also granted Constance’s request for attorney fees 

in the amount of $15,000 and ordered Patrick to pay that amount no later than 

July 31, 2019. The court ordered that any unpaid balance remaining on the 

attorney fee award would accrue interest at a rate of 10% annually, commencing 

April 1, 2019. Patrick now appeals. 

DISCUSSION

I. Property Division

¶9 The division of property in a divorce is entrusted to the circuit 

court’s discretion and will not be disturbed on appeal absent an erroneous exercise 

of discretion. LeMere v. LeMere, 2003 WI 67, ¶13, 262 Wis. 2d 426, 663 N.W.2d 

789. A court properly exercises its discretion when it examines the relevant facts, 

applies a proper standard of law, and uses a demonstrated rational process to reach 

a reasonable conclusion. Id. On review of a circuit court’s discretionary decision, 

we review any questions of law independently, but we will not overturn the court’s 

factual findings unless they are clearly erroneous. Covelli v. Covelli, 2006 WI 

App 121, ¶13, 293 Wis. 2d 707, 718 N.W.2d 260. Because the notion of 
No. 2019AP961

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discretion is fundamental to the circuit court’s ability to fulfill its role in the legal 

system, we will search the record for reasons to sustain its exercise of discretion.

Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶11, 305 Wis. 2d 658, 741 N.W.2d 

256.

¶10 WISCONSIN STAT. § 767.61(3) provides that when dividing parties’ 

property upon divorce, a circuit court starts with the presumption that it is to 

equally divide all of the property subject to division. This presumption may be 

overcome, however, after consideration of the factors set forth in 

§ 767.61(3)(a)-(m). See LeMere, 262 Wis. 2d 426, ¶16.

¶11 Here, Patrick argues the circuit court erroneously exercised its 

discretion when dividing the parties’ property because it did not adequately 

explain its rationale or make findings relating to the factors set forth in WIS. STAT.

§ 767.61(3)(a)-(m). In response, Constance asserts that if Patrick questioned the 

sufficiency of the court’s findings, he should have first raised that issue in a 

postjudgment motion. She therefore claims Patrick forfeited our consideration of 

this issue. Forfeiture, however, is a rule of judicial administration, which we may 

choose to apply in our discretion. See State v. Beamon, 2013 WI 47, ¶49, 347 

Wis. 2d 559, 830 N.W. 2d 681. We find the record sufficient to consider this 

issue, and we choose to exercise our discretion to address it. 

¶12 Patrick concedes that all of the property at issue is marital. 

Nonetheless, he argues that the circuit court erred by failing to provide an 

adequate explanation for its refusal to deviate from a 50/50 division of the parties’ 

property. Patrick is mistaken. He ignores the fact that the court did consider an 

unequal property division but rejected it for the following reason: 
No. 2019AP961

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With regard to the Court’s findings on contested valuations 

of assets and debts along with which party should be 

awarded property or assigned liabilities, the Court has 

taken into account in its decision witness credibility issues 

which the [C]ourt weighs against Mr. Brookshaw and 

specifically finds that he was uncooperative and obstructed 

discovery, and failed to produce information demanded of 

him. Mr. Brookshaw also failed to provide the [C]ourt and 

counsel required financial information, and financial 

disclosure statements, and also in regard to his income. 

¶13 Patrick contends that none of the conduct regarding discovery 

occurred in front of the circuit court and that there were no orders to compel or 

other court orders that required him to provide discovery responses. Patrick, 

however, ignores a pretrial order dated September 22, 2017. That order 

specifically warned the parties of the consequences of failing to provide required 

disclosures: “If one party fails to file the required submissions as noted in 

paragraphs 4 [financial disclosures], 5 [proposed property division], and 6 above, 

that failure concedes that they agree with the submissions of the other party, and 

the submissions may be accepted by the Court to resolve all issues.”

¶14 Patrick also fails to recognize that WIS. STAT. § 767.127(1) required 

him to disclose his assets and liabilities. Section 767.127(4), in turn, provides: “If 

either party fails timely to file a complete disclosure statement as required by this 

section, the court may accept as accurate any information provided in the 

statement of the other party ....” Patrick provided neither a financial disclosure 

statement as required by § 767.127 nor a proposed property division, in addition to 

his failure to provide discovery.4 

 

4

 Patrick did provide a two-year-old unsigned division of assets that he submitted to a 

mediator in 2016. That document was then withdrawn and not admitted as evidence. 
No. 2019AP961

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¶15 Additionally, Patrick’s premarital property contribution evidence 

consisted primarily of his own testimony. The circuit court found that Patrick 

lacked credibility, stating: “Mr. Brookshaw’s failure and refusal to provide 

information he was obligated to provide requires the Court to find that his 

credibility is weak and that doubts about ownership and values of assets should be 

resolved with that in mind.” Given Patrick’s lack of credibility and his failure to 

provide a financial disclosure statement as required by statute, the court properly 

relied upon Constance’s premarital and marital property evidence. 

¶16 Moreover, the circuit court was not required to show that it 

considered the statutory factors when declining to deviate from a 50/50 division of 

the parties’ property. Instead, a court must address those factors when explaining 

its decision not to order a 50/50 division. “[T]he record must at least reflect the 

court’s consideration of all applicable statutory factors before a reviewing court 

can conclude that the proper legal standard has been applied to overcome the 

presumptive equal property division ....” See LeMere, 262 Wis. 2d 426, ¶25 

Once the court adopted Constance’s asset values and proposed equal division, the 

factors relating to an unequal distribution of marital property in WIS. STAT.

§ 767.61(3)(a)-(m) were no longer relevant. 

¶17 The circuit court’s determination was reasonable, especially in light 

of Patrick’s failure to provide the financial information required both by the 

court’s September 22, 2017 order and by statute. The court provided an adequate 

explanation of its decision to reject Patrick’s claims and to instead accept

Constance’s evidence. Accordingly, the court properly exercised its discretion

when it applied the presumption of an equal property division and did not deviate 

from it.
No. 2019AP961

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II. Attorney Fees

¶18 In a divorce action, the circuit court may award attorney fees to one 

party based on the parties’ financial resources, or because one party has caused 

additional fees by overtrial, or because the other party refuses to provide 

information that would speed the process along. Randall v. Randall, 2000 WI 

App 98, ¶22, 235 Wis. 2d 1, 612 N.W.2d 737. The decision whether to award 

attorney fees is committed to the circuit court’s discretion. Id.

¶19 In this case, the circuit court ordered Patrick to pay Constance’s

attorney fees in the amount of $15,000. Patrick argues that the court erroneously 

exercised its discretion by awarding those fees without first holding a hearing to 

determine what, if any, portions of Constance’s attorney fees were the result of 

Patrick’s improper conduct. 

¶20 However, Patrick’s argument is undeveloped, he provides no citation 

to legal authority supporting his argument, and he fails to show how the award of 

attorney fees is unsupported by the record. As such, we need not consider 

Patrick’s argument. See M.C.I., Inc. v. Elbin, 146 Wis. 2d 239, 244-45, 430 

N.W.2d 366 (Ct. App. 1988).

¶21 In addition, Patrick waived his argument that he was entitled to a 

hearing on the issue of attorney fees by failing to provide a response to 

Constance’s affidavit for attorney fees or by requesting a hearing on the issue. See 

State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612. At the 

contested divorce hearing, Patrick’s attorney affirmatively agreed that facts 

pertaining to attorney fees should be submitted by affidavit from the parties’ 

respective attorneys. The circuit court ultimately accepted that proposal and noted 

that both attorneys should submit arguments as to why “your opponent isn’t 
No. 2019AP961

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entitled to it [attorney fees] and why you are.” Patrick made no objection to the 

court proceeding in that fashion. He did not request a hearing on the issue of 

attorney fees and, as such, he was not denied a hearing on that issue. 

¶22 Thereafter, Constance’s trial counsel filed an affidavit specifically 

outlining his time and effort expended due to Patrick’s obstruction and 

non-compliance, and his hourly rate. Patrick provided no response. On this 

record, Patrick cannot now argue that the circuit court erred by failing to hold a 

hearing on the issue of Constance’s entitlement to attorney fees.

III. Interest Rate 

¶23 Finally, Patrick argues that the circuit court should have applied the 

interest rate set forth in WIS. STAT. § 815.05(8)—which was 6.5% during 2019—

on the financial obligations it ordered, rather than the 7% and 10% awarded on the 

divorce judgment. Alternatively, Patrick argues the court should have explained 

why it instead imposed higher interest rates.

¶24 WISCONSIN STAT. § 815.05(8) provides:

[E]very execution upon a judgment for the recovery of 

money shall direct the collection of interest at an annual 

rate equal to 1 percent plus the prime rate in effect on 

January 1 of the year in which the judgment is entered ...

on the amount recovered from the date of the entry of the 

judgment until it is paid.

Furthermore, “[t]he statute does not appear to permit the circuit court to 

prospectively set a fixed rate interest on future delinquencies other than as directed 

by the statute.” See Dickau v. Dickau, 2012 WI App 111, ¶35, 344 Wis. 2d 308, 

824 N.W.2d 142. Neither party cited Dickau in their briefs, even though it 

appears to resolve this issue. This court will not abandon its neutrality to develop 
No. 2019AP961

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arguments for a party. Industrial Risk Insurers v. American Eng’g Testing, Inc.,

2009 WI App 62, ¶26, 299 Wis. 2d 561, 729 N.W.2d 396. 

¶25 Constance argues that a divorce judgment which sets forth an 

equalization payment due in the future does not constitute a judgment for the 

recovery of money due on the date of the judgment. She therefore argues that 

WIS. STAT. § 815.05(8), on its face, is inapplicable here. 

¶26 Regardless of the merits of the parties’ respective arguments, Patrick 

failed to file a reply brief on appeal, and, as such, he has not responded to 

Constance’s argument that WIS. STAT. § 815.05(8) is inapplicable. He has 

therefore conceded that point. See Charolais Breeding Ranches, Ltd. v. FPC Sec. 

Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Accordingly, we 

reject Patrick’s argument that the circuit court erred by failing to apply the interest 

rate set forth in § 815.05(8).

¶27 For the reasons set forth above, we reject Patrick’s arguments 

regarding the circuit court’s division of the parties’ property, the award of attorney 

fees, and the applied interest rates. We therefore affirm the court’s decision. 

By the Court.—Judgment affirmed. 

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

RULE 809.23(1)(b)5.