### COURT OF APPEALS DECISION DATED AND FILED July 18, 2023

Samuel A. Christensen 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2021AP1647 Cir. Ct. No. 2020IN10 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

I N RE THE ESTATE OF J OSEPH A NDREW R OBERT G ERGER :
A MARA G ERGER , A LICE G ERGER AND G ABRIEL G ERGER , A PPELLANTS ,

V .
Y AJAIRA V ANESSA A VILA G ERGER ,
R ESPONDENT .

APPEAL from a judgment of the circuit court for Langlade County:
JOHN B. RHODE , Judge. Affirmed

.

Before Stark, P.J., Hruz and Gill, 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 W IS . S TAT . R ULE 809.23(3).No. 2021AP1647

2 ¶ 1 PER CURIAM. Three of decedent Joseph Gerger’s children

— Amara Gerger, Alice Gerger, and Gabriel Gerger

— appeal a judgment granting a “Petition for Decedent’s Interest in Home” filed by Joseph’s widow, Yajaira Vanessa Gerger. 1 The children argue that the circuit court erred by reforming a real estate deed to provide Vanessa a survivorship marital interest in the couple’s home, thereby entitling her to the proceeds from the home sale. For the reasons discussed below, we affirm the judgment.

BACKGROUND
¶ 2 Joseph and Vanessa were married on February 5, 2018. In the summer of that year, the couple decided to move away from Milwaukee, and they
toured a num ber of homes together. On July 31, 2018, they purchased a home in Antigo for $90,000. Joseph used money he had inherited from his grandmother to pay for the ho me in cash. The deed to the home listed only Joseph as the grantee,
and it identified him as being single despite hi s marriage to Vanessa. Vanessa did not sign any documents related to the closing, and she was not present at the closing because she was h om e “pregnant and sick.” According to Vanessa, upon his return from the closing, Joseph handed Vanessa the deed and stated, “This is your house.”

¶ 3 Joseph and Vanessa both maintained the home w hile they lived
there. On May 25, 2020, Joseph died intestate. The home, which was Joseph’s only significant asset, was sold a month later for approximately $85,000.

1 Because the parties share a surname, we will refer to the appellant s as “the children” and the respondent as “ Vanessa .” The three children litigating this matter were born from Joseph’s p revious relationships. Joseph shared a four th child with Vanessa.No. 2021AP1647

3 ¶ 4 Joseph’s sister filed an “Application for Informal Administration” of
the E state, and Vanessa subsequently filed the underlying “Petition for Decedent’s Interest in Home,” seeking the proceeds of the home sale pursuant to W IS

. S TAT

. § 861.21 (2021

- 22), 2 which governs the assignment of a home to a surviving
spouse. The children objected to Vanessa’s petition. After a bench trial, the circuit court determined that Vanessa was entitled to equitable relief and consequently reformed the deed to include Vanessa as a grantee, thereby making the home survivorship mar ital property. This appeal follows.

DISCUSSION

¶ 5 A court in equity may reform written instruments that, by mutual mistake, do not express the true intentions of the parties. Chandelle Enters., LLC v. XLNT Dairy Farm, Inc. , 2005 WI App 110, ¶ 18, 282 Wis. 2d 806, 699 N.W.2d
241. The party seeking reformation must offer clear and convincing proof that both parties intended to make a different instrument and had agreed on facts that
were different than those set forth on the instrument. Id. A circuit court’s
decision to grant equitabl e relief is reviewed under the erroneous exercise of
discretion standard. Pietrowski v. Dufrane , 2001 WI App 175, ¶ 5, 247 Wis. 2d 232, 634 N.W.2d 109. W e will not reverse a discretionary decision of the circuit court when it applies the correct legal standard to a reasonable view of the facts of record and reaches a conclusion a reasonable judge could reach. Rodak v. Rodak , 150 Wis. 2d 624, 631, 442 N.W. 2d 489 (Ct. App. 1989). The court’s findings of

2 All references to the Wisconsin Statutes are to the 2021

- 22 version unless otherwise noted.No. 2021AP1647

4 fact will not be set aside unless they are clearly erroneous. W IS

. S TAT

. § 805.17(2).

¶ 6 When a decedent spouse ’ s property arrangements were made in
fraud of the survivor ’ s rights , equitabl e relief to a surviving spouse is also available pursuant to W IS

. S TAT

. § 861.17(1). The application of a statute to a particular set of facts is a question of law that we review de novo. Armour v. Klecker , 169 Wis. 2d 692, 697, 486 N.W.2d 563 (Ct. App. 1992)

. ¶ 7 Here, the children argue that there was no fraud or mutual mistake justifying reformation of the deed. The deed, however, listed Joseph as being single when he was, in fact, married. Whether his listing as single was the resu lt of fraud by Joseph or anybody else is unclear. In any event, it was certainly a
mistake.

¶ 8 The ch ildren nevertheless claim that the circuit court erred by reforming the deed based, in part, on its conclusion that “the language of t he deed does not express any intent to characterize the property as something other than survivorship marital property.” According to the children, this conclusion disregards the language of the deed as it was written because the deed does not
include the words “survivorship marital property” or otherwise include Vanessa’s

name. T he children also argue that the deed’s identification of Joseph as being single evinc ed his intent that the property remain his alone.

¶ 9 The children’s argument, however, ignores the application of W IS

. S TAT

. § 766. 605 to the facts of this case

. That statute provides, in relevant part: “A homestead acquired after the determination date which, when acquired, is held exclusively between spo uses with no [third] party is survivorship marital property if no intent to the contrary is expressed on the instrument of transfer or inNo. 2021AP1647

5 a marital property agreement. ” The “determination date” under these facts is defined as the date the parties married. See W IS

. S TAT

. § 766.01(5).

¶ 10 Here, the home was purchased after Joseph and Vanessa were married, and it was held exclusively by the couple. The deed identified the home as “homestead property , ” and the couple paid for expenses relat ed to the home from a joint credit uni on account. There was no evidence of any agreement between the parties, such as a marital property agreement, specifying that the
home was anything other than survivorship marital property. Likewise, nothing
on the d eed demonstrated an intent to hold the property as anything other than survivorship marital property

. To the extent the children emphasize that the couple were married only six months before the home purchase and resided there for only twenty

- two months b efore Joseph’s death, those facts are immaterial to determining whether a homestead is survivorship marital property under W IS

. S TAT

. § 766.605.

¶ 11 The children assert that the deed’s reference to Joseph as being single signifies his int ention that the house remain individual property. We disagree. In Droukas v. Estate of Felhofer , 2014 WI App 6, 352 Wis. 2d 380,
843 N.W.2d 57 (2013 ), vacant property was titled in two individual s ’ names as single persons. Id. , ¶2

. The individuals, who were in a relationship, began construction of a home on the property and married during the home’s
construction. Id. , ¶4. The couple then lived in the home for approximately eleven years, until the husband’s death. Id. , ¶¶4

- 5. Al though the facts of that case differ from the present matter, the decision is instructive.

¶ 12 This court addressed whether the home was survivorship marital property, holding that “[t] he use of the phrase ‘ single persons ’ [on the propertyNo. 2021AP1647

6 deed] simply describe [d] a fact: that at the time they purchased the vac ant lot, [the parties] were not married. ” Id. , ¶32. The court added that the term “single persons [did] not represent a classification of property ownership of any kind, to wit, tenancy in common, joint tenancy, marital property, or any other recognized
classification. ” Id. Because “single persons” fail ed to express any recognized real property classification, it was not evide nce of an intent on the part of the par ties

. Id. Similarly, Joseph’s identification as being single on the deed is not evidence
of an intent to maintain the home as his individual property.

¶ 13 The children also contend that Joseph’s decision to purchase the home with a portion of his inheritance evinced his intent for the home to remain his individual property. Citing W IS

. S TAT

. § 766.31(8), the children argue that the circuit court ignored the exception to the marital property presumption that governs rights to property acquired before the determination date

— in this case, the marriage. That subsection provides:

Except as provided otherwise in this chapter , the enactment of this chapter doe s not alter the classification and ownership rights of property acquired before the determination date or the classification and ownership rights of property acquired after the determination date in exchange for or with the proceeds of property acquired be fore the determination date.

Sec. 766.31(8) ( e mphasis added)

. The children maintain that Joseph exchanged individual property received prior to the marriage for other individual property after the marriage, and that his property can be easily traced.

¶ 14 Here, however, W IS

. S TAT

. § 766.31(8) does not control because
W IS

. S TAT

. § 766.605 specifically provides that the homestead is classified as survivorship marital property.No. 2021AP1647

7 ¶ 15 The children also assert that testimony g iven by Joseph’s sister, Christina Lozano, supports their contention that Joseph intended to maintain the home as individual property. At trial, Lozano testified that Joseph called her after the closing and, during that conversation , she asked whose name was on the deed

. According to Lozano, Joseph responded, “Mine , ” adding that “ [n] obody’s taking shit from me ... like it happened to you”

— a referenc e to events that apparently
occurred when Lo zano purchased a home in her husband’s name. The circ uit court, as the fact finder, was entitled to weigh the witnesses’ testimony and determine their credibility. See Micro

- Managers, Inc. v. Gregory , 147 Wis

. 2d 500, 512, 434 N.W.2d 97 (Ct. App. 1988).

¶ 16 Moreover, as the circuit court n oted, if, as Lozano testified, Joseph intentionally identified himself as being single in order to ensure the property remained with him if he and Vanessa divorced, “then he definitely engaged in a fraudulent transfer, which [would] entitle [] Vaness a to th e equita ble relief [sought].” Ultimately , th e evidence and the reasonable inferences available
therefrom provide a sufficient basis for the court ’ s discretionary decision to grant Vanessa equitable relief , even if reasonable opposing inferences were available.

¶ 17 Citing Estate of Carroll v. Ansley , 2001 WI App 120, 244 Wis. 2d 280, 628 N.W.2d 411 , and its application of W IS

. S TAT

. § 852.01, the children alternatively contend that Joseph’s half of the marital property should be
distrib uted consistent with the basic rules for intestate succession. As the circuit court recognized, it is unclear whether the property discussed in Estate of Carroll included a homestead. In any event, W IS

. S TAT

. § 852.09 provides: “ If the
intestate estate includes an interest in a home, assignment of that interest to the surviving spouse or surviving domestic partner is governed by [ W IS

. S TAT

. §] 861.21 ,” the statute under which Vanessa petitioned for an interest in theNo. 2021AP1647

8 home. That statute provides that sub ject to exceptions that do not appear to apply
here:
[I] f a married decedent

... has a property interest in a

home, the decedent ’ s entire interest in the home shall be
a ssigned to the surviving spouse

... if the surviving spouse

... petitions the court request ing such a distribution and if a governing instrument does not provide a s pecific transfer of the decedent’ s interest in the home to someone other than the surviving sp ouse

... . The surviving spouse

... shall file the petition within 6 months after the deceden t ’ s death, unless the court extends the time for filing.

Sec. 861.21(2).

¶ 18 The children argue that even if the home is assigned to Vanessa, she must pay the value of Joseph’s in terest in the home to Joseph’s e state , for
distribution according to the rules for intestate succession. The children’s arguments regarding intestate succession, however, are irrelevant where, as here, the property is “survivorship marital property.” See Droukas , 352 Wis. 2d 380, ¶¶10, 13 (noting that surviv orship marital property under W IS

. S TAT

. § 766.605 is exempt from the rules of intestate division).

By the Court.

— Judgment affirmed.

This opinion will not be published. See W IS

. S TAT

. R ULE 80 9.23(1)(b)5.