In the recent unpublished case of Emerson v. Emerson, 2009AP84, one of the questions the Wisconsin Court of Appeals, Dist. III, had to consider was “are the crops in the field a marital asset subject to division?” The Court of Appeals first reiterated the fundamental legal rule that the determination of property division and any spousal maintenance award rests with the sound discretion of the trial judge. LeMere v. LeMere, 262 Wis. 2d 426, 663 N.W.2d 789 (2003).Â
In Emerson, Judge John A. Damon, Trempeleau County Circuit Judge, first determined that child support and spousal maintenance was appropriate given the wife’s income of $30,000/yr and husband’s income of $125,400/yr (including $83,400/yr of income available from the farm corporation). The wife was also requesting that the crops that were planted but not yet harvested should be included in the property division. In Emerson, Trempeleau County Judge Damon did not consider the crops as a marital property subject to division. Judge Damon reasoned: 1) the yield and price of un-harvested crops was speculative; 2) it was not proper to double count the crops in the field as an asset and also as anticipated income; and 3) since husband’s income was almost solely due to the sale of crops that if he took this away, the husband “wouldn’t have this income next year to pay both child support and maintenance.” Â
The Court of Appeals found that Judge Damon’s decision was not “clearly erroneous” (the standard needed to overturn the circuit court’s determination of property division or spousal maintenance). The appellate court further held that a trial court may choose to exclude accounts receivable from the marital estate if there is a link between the salaries and receivables and if dividing the receivables would adversely affect the ability to pay child support or spousal maintenance.” Sharon v. Sharon, 178 Wis. 2d 481, 504 N.W.2d 415 (Ct. App. 1993).
WI Divorce and Family Law Weblog: Pierce County Herald ** Entries posted on this Blog shall not be deemed legal advice. Entries in this blog are also not endorsed by nor the views or advice of the Pierce County Herald.  For individual attention to your particular legal situation, consult an attorney.** Blog entries prepared by attorneys Dan Murray and Barb Miller. Lawyers helping individuals with divorce, custody, placement, property division, and other family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com
