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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP1968 Cir. Ct. No. 2018FA5

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

IN RE THE MARRIAGE OF:

PATRICIA WISCHER P/K/A PATRICIA DYBDAL,

 PETITIONER-RESPONDENT,

 V.

ANTHONY B. DYBDAL,

 RESPONDENT-APPELLANT.

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 WIS. STAT. RULE 809.23(3). 
No. 2019AP1968

2

¶1 PER CURIAM. Anthony Dybdal appeals a judgment of divorce,

arguing that the circuit court erred in determining that the parties’ Prenuptial 

Marital Property Agreement was inequitable and in not strictly applying 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 Wischer’s 

attorney. Dybdal was not represented by an attorney in the drafting or execution 

of the Agreement. The purpose of the Agreement was to protect approximately

$11 million in lawsuit settlement proceeds that Wischer received as a result of the 

death of her first husband, who died in 1999 during the construction of Miller 

Park’s retractable roof. The settlement 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 Wisconsin, vehicles, and 

various other items of personal property. Dybdal brought few assets to the 

marriage. 

¶3 The Agreement provided that all property that was then titled or that 

during the marriage became titled in the sole name of a party 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 

division 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 

hereunder 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 was 

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 which approximately $274,000 was owed and the Fremont property was 

encumbered by a debt of approximately $6,800. The Beaver and Pound vacation 

properties were debt-free. The parties also acquired over twenty vehicles, 

including recreational vehicles, and took 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, the circuit court determined that it would be inequitable to 

Wischer to enforce the Agreement. Therefore, the court deviated from the terms 

of the Agreement, 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 court 

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 provide 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 WISCONSIN STAT. § 767.61(3) (2019-20)

1 provides that when 

dividing parties’ property upon divorce, a circuit court starts with the presumption 

that it is to equally divide all property subject to division. However, this 

presumption may be overcome after consideration of a number of factors, 

including a written agreement 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 agreement 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 

considered “equitable,” and therefore enforceable under § 767.61(3)(L), when all 

three of the following 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 2019-20 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 divorce. This 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 contract in the 

shadow of the court’s obligation to review the agreement on divorce to protect the 

spouses’ financial interests on divorce.” Id. The 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 unfair at the time of divorce if “there are 

significantly changed circumstances after the execution of an agreement and the 

agreement as applied at divorce no longer comports with the reasonable 

expectations of the parties.” Id. at 98-99. The 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 at
No. 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 court could arrive at by the consideration of 

the relevant law, the facts, and a process of logical reasoning.” Id.

II. The Circuit Court’s Discretionary Determination

that the Agreement was Inequitable

¶12 In reaching its discretionary determination that the Agreement was 

inequitable, the circuit court analyzed pertinent case law discussing WIS. STAT.

§ 767.61(3),3including 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) that 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 without 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 

inequitable to Wischer, and we therefore employ that standard of review here. 

3

 At the time of the Button decision, the statute was codified as WIS. STAT.

§ 767.255(11). 
No. 2019AP1968

8

circumstances” in determining that the Agreement was inequitable, the court 

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 resolved 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 “successfully 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 

remained 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. The court found that Wischer “paid and 

funded [the] marriage,” whereas Dybdal’s contribution was “peanuts in 

comparison,” and that “even if money technically came out of the pocket of 

Mr. Dybdal, it first came from the pocket of Ms. [Wischer].” The court concluded

that, under these circumstances, “[t]o strictly apply the prenuptial agreement as 

requested by [Dybdal] would continue to adversely impact [Wischer’s] financial 

situation because of the collective poor fiscal decisions 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. The court further observed that the parties “operated through this 

marriage 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 constitute 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 person who could 

withdraw funds from her trust account, and suggests that her intentional draws on 

that account cannot be considered an unexpected change in circumstances. 

However, Dybdal cites no authority for the proposition that intentional actions 

cannot 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, in addition to the circuit court’s reliance on the significant 

sum of money spent by the parties during their marriage, the circuit court also 

relied on the evidence of record showing that, although Dybdal was employed 

when the parties 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 intended to file for disability. The 
No. 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 

investment property for several years after the accident, which contributed to the 

financial success of the property. However, in concluding that Dybdal generally 

did not return to the workforce, the court expressly referenced “limited 

exceptions,” which included Dybdal’s work at the investment property. 

Moreover, the fact that Dybdal worked at the investment property is not 

inconsistent 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 million 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) (it 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. Dybdal’s Reliance 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,

2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145. Dybdal’s reliance on these cases is 

misplaced. 

¶19 In Gardner, this 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 recites the following language from Gardner: 

“Substantive unfairness at the divorce is not proven by a side-by-side comparison 

of the property each party received when the marriage was terminated. ‘An 

agreement is not unfair at divorce just because the application of the agreement 

results in a property division which is not equal between the parties....’” Id. at 

234 (quoted source omitted). It 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 principle or discussion

from Gardner that sheds light on the issues here, his reliance on Gardner is 

unavailing.

¶21 Steinmann is likewise unhelpful to Dybdal in showing that the 

circuit court in this case erroneously exercised its discretion. Significantly,
No. 2019AP1968

12

Steinmann does not address whether the marital agreement in that case was 

inequitable and therefore unenforceable. Instead, the court explicitly notes: 

“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 was required to equally divide the jointly titled property 

but instead employed tracing principles to award property based on which 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 does 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 

approach:

I agree with [Dybdal’s counsel’s] reliance on Steinmann,

... 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 tracingtype principles to try to lead back from what is clearly 

marital property to figure out who provided the assets 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 Gardner or Steinmann, we 

reject Dybdal’s arguments that are based on those cases. 

IV. Consideration of Deceased Spouse’s Interests

¶24 Dybdal’s remaining argument is that the circuit court erred in 

considering the impact of the Agreement 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 sympathy or empathy 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 inequitable 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 WIS. STAT. RULE

809.23(1)(b)5.