### COURT OF APPEALS DECISION DATED AND FILED March 18, 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2019AP1968 Cir. Ct. No. 2018FA5 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

I N RE THE MARRIAGE OF :
P ATRICIA W ISCHER P / K / A P ATRICIA D YBDAL ,
P ETITIONER - R ESPONDENT ,

V . A NTHONY B. D YBDAL ,
R ESPONDENT - A PPELLANT .

APPEAL from a judgment of the circuit court for Waupaca County:
TROY NIELSEN , Judge. Affirmed

.

Before Kloppenburg, 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 W IS . S TAT . R ULE 809.23(3).No. 2019AP1968

2 ¶ 1 PER CURIAM. Anthony Dybdal appeals a judgment of divorce , arguing tha t the circuit court erred in determining that the parties’ Prenuptial Marital Property Agreement was inequitable and in not strictly apply ing its terms

. We affirm.

BACKGROUND

¶ 2 Patricia Wischer and Anthony Dybdal were married in 2004. The marriage was Dybdal ’ s first and Wischer ’ s second , and the parties did not have any children together

. Nine days before the marriage, the parties signed a Prenuptial Marital Property Agreement (Agreement) , drafted by Wi s cher ’ s attorney

. Dybdal was not represented by an attorney in th e drafting or execution
of the A greement. The purpose of the Agreement was to protect a ppro ximately $11 million in lawsuit settlement proceeds that Wischer received as a result of th e death of her first husband, who d ied in 1999 during the construction of Miller
Park ’ s retractable roof. The se tt lement proceeds were held in a revocable trust in
Wischer ’ s name. At the time the parties signed the Agreement, Wischer also owned a home in Waukesha, a property in northern Wisco nsin, vehicles, and various other items of personal property. Dybdal brought few assets to the marriage.

¶ 3 The A greement provided that all property that was then titled or that during the marriage became titled in the sole name of a pa rty or that party’s trust
was classified as that party’s individual property. The Agreement further provided that all property that was then titled or that during the marriage became titled in the names of both parties was classified as marital property. In the event of divorce, the Agreement provided in pertinent part as follows:No. 2019AP1968

3 (a) It is the express intention of both parties that this Agreement shall be binding on the issue of property divis ion and support or maintenance. The parties acknowledge that this Agreement constitutes a written agreement which is binding upon the divorce court pursuant to Wis. Stats. §767.255(3)(L). The parties further acknowledge that this Agreement is equitable as to both parties. (b) All property of the parties shall be divided as of the date the petition for the resulting dissolution of the marriage was filed, as follows:

(i) Each party shall be allowed to retain the property then classified hereunder as his or her individual property; (ii) Property then classified he reunder as marital property or survivorship marital property shall be divided, equally, between the parties

... . ¶ 4 During the marriage, the parties acquired four separate parcels of
real estate in Wisconsin , each of which was titled in both of their names and would
therefore constitute marital property to be divided equally upon divorce pursuant

to the Agreement

. The total value of the real estate amounted to approximately $1.4 million : $784,000 for an apartment complex in Fond du Lac that w as purchased as an investment property, $425,000 for a residence in Fremont, $80,000 for a vacation property in Beaver, and $187,100 for a vacation property in
Pound

. At the time of trial, the Fond du Lac property was encumbered by a line of
credit on whi ch approximately $274,000 was owed and the Fremont property was encumbered by a debt of approximately $6,800. The Beaver and P ound vacation properties were debt

- free. The parties also acquired over twenty vehicles , including recreational vehicles , and to ok on at least two dozen credit card or loan obligations.No. 2019AP1968

4 ¶ 5 Wischer petitioned for divorce on January 4, 2018 , and a two

- day trial was held in April 2019. At the time of the trial, Wischer ’ s trust account contained just under $1 million of the $11 million in settlement proceeds

. Following the hearing, th e circuit court determined that it would be inequitable to
Wischer to enforce the A greement

. Therefore, t he court deviated from the terms
of the A greement , awarding Wischer more than a 50 % share of the marital property while granting Dybdal a lesser share of the marital property , although Dybdal’s share was less encumbered by debt than Wischer’s share

. With regard to
the real estate , which is the primary subject of dispute on appeal, the cour t awarded the two vacation homes in Pound and Beaver to Dybdal. The residence in Fremont was awarded to Wischer, as was the Fond du Lac investment property. The court rejected Dybdal ’ s request that Wischer be required to provid e an equalizing payment to Dybdal

. ¶ 6 Dybdal appeals

.
DISCUSSION

¶ 7 Dybdal argues that the circuit court erred in determining that the Agreement was inequitable to Wischer and in declining to strictly apply its terms. As we explain, we conclude that the circuit court did not erroneously exercise its
discretion.No. 2019AP1968

5 I. Applicable Legal Standards

¶ 8 W ISCONSIN S TAT

. § 767.61(3) (201 9

- 20 ) 1 provides that when
div iding parties ’ property upon divorce, a circuit court starts with the presumption that it is to equally divide all property subject to division. However, t his presumption may be overcome after consideration of a number of factors, including a written agre ement between the parties , as described in § 767.61(3)(L):

Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such ag reement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.
Our supreme court has determined that a marital property agreement will be
conside red “equitable,” and therefore enforceable under § 767.61(3)(L) , when all
three of the foll owing requirements are met: (1) each spouse has made a fair and
reasonable disclosure of his or her financial status to the other spouse; (2) each spouse has entered into the agreement voluntarily and freely; and (3) the substantive provisions of the agreement dividing the property upon divorce are fair to each spouse. See Button v. Button , 131 Wis. 2d 84, 89, 388 N.W.2d 546 (1986). The first two requirements are assessed as of the time of the agreement ’ s execution; the third requirement is assessed at the time of execution but also, if circumstances change significantly during the marriage, at the time of the divorce.
See id.

1 All references to the Wisconsin Statutes are to the 201 9

- 20 version unless otherwise noted.No. 2019AP1968

6 ¶ 9 The parties do not dispute that the first two Button requirements were met in this case. Their disagreement focuses on the third requirement : whether the property division provided in the Agreement was fair to each spouse
at the time of d ivorce. Th is third requirement addresses the substantive fairness of a marital property agreement. See id. at 96. Substantive fairness is an “amorphous concept” that must be determined on a case

- by

- case basis, in light of two competing principles: “the protection of the parties ’ freedom to contract and the protection of the parties ’ financial interests at divorce.” Id. at 96. “[T]he legislature requires a divorce court to scrutinize an agreement between the spouses carefully. ” Id. at 94. “ The parties are free to contract, but they cont ract in the
shadow of the court ’ s obligation to review the agreement on divorce to protect the
spouses ’ financial interests on divorce. ” Id. T he burden of production of evidence and the burden of persuasion rest on the party challenging the agreement as inequitable at the time of divorce

. See id. at 93

- 94.

¶ 10 An agreement is u nfair at the time of divorce if “there are significantly changed circumstances after the execution of an agreement a nd the agreement as applied at divorce no longer comports with the reasonable expectations of the parties.” Id

. at 98

- 99. T he question is whether the parties , before signing the agreement, “ were able to reasonably predict a particular event , ” also expressed as whether an event is “reasonably foreseeable.” See Warren v.
Warren , 147 Wis. 2d 704, 710

- 711 , 433 N.W.2d 295 (Ct. App. 1988) ; Button , 131 Wis. 2d at 97

. ¶ 11 A circuit court ’ s determination as to whether an agreement is inequitable is discretionary and our review is limited. See Button , 131 Wis. 2d atNo. 2019AP1968

7 99

. 2 “The statutory test of equitability ... leaves enforceability generally to the [ circuit ] court ’ s sense of fairness. Discretion is inherent in the test.” Hengel v. Hengel , 122 Wis. 2d 737, 744, 365 N.W.2d 16 (Ct. App. 1985). A discretionary
determination “ must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination. ” Hartung v. Hartung , 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981)

. Further, “ [ i ] t is recognized
that a [circuit] court in an exercise of its discretion may reasonably reach a conclusion which another judge or another court may not reach, but it must be a
decision which a reasonable judge or c ourt could arrive at by the consideration of the relevant law, the facts, and a process of logical reasoning. ” Id.

II. The C ircuit C ourt ’s D iscretionary D etermination that the Agreement was I nequitable
¶ 12 In reaching its discretionary determination that the Agreement was inequitable , t he circuit court analyzed pertinent case law discussing W IS

. S TAT

. § 767. 61(3 ), 3 including the landmark case of Button , discussed above

. Although the court did not explicitly use Button ’ s phrase , “significantly changed

2 Dybdal ignores well

- established precedent stating that a circuit court’s determination as to whether a marital property agreement is equitable is reviewed for an erroneous exercise of discretion. Instead, Dybdal focuses on whether Wischer has met her burden of proof to overcome the presumption under Wis. Stat. § 767.61(3)(L) t hat the Agreement was equitable and argues that whether a party has met its burden is an issue of law. See Brandt v. Brandt , 145 Wis. 2d 394, 409, 427 N.W.2d 126 (Ct. App. 1988) (“ Whether a party has met the burden of proof is a question of law which we examine witho ut deference to the trial court’ s conclusions. ”). Regardless of the burden of proof, the ultimate question we address in this case is whether the circuit court erroneously exercised its discretion in determining that the Agreement was inequit able to Wischer , and we therefore employ that standard of review here

.

3 At the time of the Button decision , the statute was codified as W IS

. S TAT

. § 767.255(11).No. 2019AP1968

8 circumstances” in determining that the Agreement was inequitable, the co urt implicitly determined that such a change of circumstances had occurred between the time the Agreement was executed and the time of divorce

. See State v. Berggren , 2009 WI App 82, ¶18, 320 Wis. 2d 209, 769 N.W.2d 110 ( “[W]hen the record does not include a specific finding on an issue, this court will assume that
the issue was resolve d by the trial court in a manner which supports the final judgment or order.” )

. The court noted that over the course of the parties’ 13

- year marriage, they had “successful ly set fire to about $8 million. ” The record supports this conclusion, showing that , of the approximately $11 million in settlement proceeds that Wischer originally had in her trust account , less than $1 million
remain ed at the time of divorce, and the parties had less than $2 million in real and personal property.

¶ 13 The circuit court ’ s finding that the parties spent $8 million was in conjunction with the court ’ s additional findings regarding the parties ’ respective financial contributions to the marriage. T he court found that Wischer “paid and
funded [ th e] marriage , ” whereas Dybdal ’ s contribution was “peanuts in comparison , ” and that “even if money technicall y came out of the pocket of
Mr. Dybdal, it first came from the pocket of Ms. [Wischer].” T he court concluded that, under these circumstances, “ [t] o strictly appl y the prenuptial agreement as requested by [ D ybdal] would continue to adversely impact [ W ischer ’ s ] financial situation because of the collective poor fiscal decision s these two parties made over, and over, and over, and over , and over again .” In other words , although the parties collectively made poor financial decisions , enforcement of the Agreement
would disproportionately and unfairly impact Wischer, who had funded the marriage. T he court further observed that the parties “operated through this

marr iage very much inconsistent with the general themes” of the Agreement,No. 2019AP1968

9 which, as stated , was created for the purpose of protecting Wischer ’ s substantial

assets. Thus, the court implicitly, and reasonably, determined that such
inconsistent conduct constitu te an unexpected change in circumstances that was neither reasonably foreseeable by the parties at the time of marriage nor equitable
at the time of divorce. Warren , 147 Wis. 2d at 708

- 11

. ¶ 14 Dybdal points out that Wischer was the only p erson who could withdraw funds from her trust account, and suggests that her intentional draws on
that account cannot be considered an un expected change in circumstances. However, Dybdal cites no authority for the proposition that intentional actions

cann ot serve as a basis for a finding that a significant change in circumstances has
occurred. Nor has Dybdal presented any other persuasive argument or authority
that undermines the circuit court ’ s discretionary determination that the parties ’ spending of approximately $8 million of Wischer ’ s trust funds during the 13

- year marriage was beyond the reasonable expectations of the parties at the time of the Agreement and that enforcement of the Agreement would be inequitable to Wischer

. ¶ 15 Moreover, i n addition to the circuit court ’ s reliance on the significant sum of money spent by the parties d uring their marriage , the circuit court also
relied on the evidence of record showing that, although Dybdal was employed when the partie s were married, he suffered a motorcycle accident in 2007 and , “generally speaking,” did not return to the workforce during the balance of the marriage , with some “limited exceptions,” including work at the Fond du Lac apartment complex. Dybdal testified that , as a result of the accident, for which Wischer paid hundreds of thousands of dollars in medical bills, Dybdal suffers progressive injuries , including a sciatic nerve problem, destruction of two lower vertebrae, and a missing lung ; and that Dybdal int ended to file for disability

. TheNo. 2019AP1968

10 parties could not have reasonably predicted that the motorcycle accident would

occur , that Dybdal would generally not return to the workforce , or that Wischer would be exclusively financially responsible for Dybdal.

¶ 16 Dybdal challenges the circuit court ’ s finding related to his failure to return to the workforce, noting that he managed and maintained the Fond du Lac
investmen t property for several years after the accident , which contributed to the
fin ancial success of the property

. However, in concluding that Dybdal generally did not return to the workforce, the court expressly referenced “limited exception s,” which includ ed Dybdal ’ s work at the investment property

. Moreover , the fact that Dybdal wor ked at the investment property is not
incons istent with the court ’ s finding that , “generally speaking , ” Dybdal did not return to the workforce following the motorcycle accident

. Nor is Dybdal ’ s work at the investment property inconsistent with the court ’ s conclusion that Wischer

“ funded ” the marriage and that “even if money technically came out of the pocket of Mr. Dybdal, it first came from the pocket of Ms. [Wischer]

. ” The evidence
showed that Wischer funded all or nearly all of the original $1.2 millio n for the investment property, and that Dybdal was paid for his work on the property. Moreover, to the extent that Dybdal seeks to challenge the court ’ s finding regarding his level of participation in the workforce, we note that the court was best positioned to evaluate the testimony and other evidence on this point , and we
do not second

- guess the court ’ s finding. See State v. Gomez , 179 Wis. 2d 400, 404, 507 N.W.2d 378 (Ct. App. 1993) ( i t is the trier of fact ’ s function to decide issues of credibility, weigh the evidence and resolve conflicts in testimony )

. ¶ 17 In sum, Dybdal has not shown, based on the record and applicable law, that the circuit court erroneously exercised its discretion in determining that the Agreement was inequitable as to Wischer and therefore need not be enforced

.No. 2019AP1968

11 III. Dy b dal ’ s R eliance on Gardner and Steinmann

¶ 18 Dybdal argues that the circuit court was required to enforce the unambiguous language of the Agreement pursuant to Gardner v. Gardner , 190
Wis. 2d 216, 527 N.W.2d 701 (Ct. App. 1994) , and Steinmann v. Steinmann , 2 0 08 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145. Dybdal ’ s reliance on these cases is misplaced

. ¶ 19 In Gar

d ner , t his court upheld a marital property agreement over objections that the terms of the agreement were inequitable , concluding that the agreement ’ s terms were “plain and straightforward.” Gardner , 190 Wis. 2d at 228. Dybdal states that the language of the parties ’ Agreement here is likewise plain and straightforward and therefore should have been enforced

. However, simply because language in a marital property agreement is unambiguous does not mean that it is equitable or fair at the time of divorce.

¶ 20 Dybdal also re cites the following language from Gar d ner : “Substantive unfairness at the divorce is not proven by a side

- by

- side comparison of the pr operty each party received when the marriage was terminated. ‘ An agreement is not unfair at divorce just because the applicat i o n of the agreement results in a property division which is not equa l between the parties.... ’ ” Id. at 234 (quoted source omitted). I t is unclear why Dybdal believes this language
assists him , given that the circuit court’s determination in this case was not based
on these factors

. Because Dybdal does not point to any principl e or discussion
from Gardner that sheds light on the issues here , his reliance on Gar d ner is unavailing

. ¶ 21 Steinmann is likewise unhelpful to Dybdal in showing that the circuit court in this case erroneously exercised its discret ion . Significantly,No. 2019AP1968

12 Steinmann d oes not address whether the marital agreement in that case was in equitable and therefore unenforceable

. Instead, t he court explicitly not e s : “There is no dispute that the Agreement is binding, valid and enforceable. Rather, the dispute between [the parties] pertains to the Agreement ’ s reach and application in this case.” Steinmann , 309 Wis. 2d 47, ¶23.

¶ 22 Dybdal appears to rely on Steinmann for the proposition that the
circuit court in this case wa s required to equally divide the j ointly titled property
but instead employed tracing principles to award property based on wh ich party provided the funds for the property. Dybdal relies on the following language from
Steinmann : [W]hen separate property presumed to be indivisible is

transmuted through a joint tenancy, it is effectively transferred to marital property, and tracing does not cause the property to revert back to its original separate property identity. In such cases, ‘ [t]he transfer of separately owned property into joint tenancy changes the character of the ownership interest in the entire property into marital property which is subject to division. ’

Id. , ¶35 (quoted source omitted). Steinmann is inapplicable here , not only because, as discussed above, it d oes not address whether a marital agreement is equitable or enforceable , but also because the circuit court in this case did not employ tracing principles. In fact, the court specifically disavowed such an
approa ch : I agree with [Dybdal ’ s counsel ’ s] reliance on Steinma n n ,

... in which the Court is prohibited from engaging in or utilizing tracing principles under the circumstances that this very case has. So I ’ m not going to engage in those tracing

type principles t o try to lead back from what is clearly marital property to figure out who provided the asse ts for that piece of property; in part because Steinmann says that
can ’ t be done and [also because] that makes a whole of sense to me.”No. 2019AP1968

13 Dybdal fails to show that the circuit court used tracing principles , contrary to Steinmann , nor has he shown why Steinmann is at all germane to this case, when
Steinmann does not address the equitableness of a marital property agreement and
when , unlike in Steinmann , there is no dispute in this case over the classification
of the property at issue.

¶ 23 Because Dybdal has failed to show that the circuit court ’ s determinations in this case were inconsistent with Gar d ner or Steinmann , we reject Dybdal ’ s arguments that are based on th o se cases.

IV

. Consideration of Deceased Spouse ’ s Interests
¶ 24 D ybdal ’ s remaining argument is that the circuit court erred in considering the impact of the A greement on Wischer ’ s deceased first husband. At the end of the trial, the circuit court stated: “Quite frankly, the only person I have a
whole lot of sym pathy or e mpathy for in this whole proceeding isn ’ t in the room. If one believes in an afterlife, I imagine Mr. Wischer is looking down with a level of frustration unbeknownst to many.” We do not agree that this comment can fairly be read to indicate that the court considered the interests of Wischer ’ s deceased first husband when determining that the Agreement was inequita ble to
Wischer. We therefore reject Dybdal ’ s argument on this point.

CONCLUSION

¶ 25 For the foregoing reasons, we affirm

. By the Court.

— Judgment affirmed

. This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.