CourtListener opinion 10577167

Evidence quotes

Clean opinion text

COURT OF APPEALS
 DECISION NOTICE
 DATED AND FILED This opinion is subject to further editing. If
 published, the official version will appear in
 the bound volume of the Official Reports.
 May 4, 2022
 A party may file with the Supreme Court a
 Sheila T. Reiff petition to review an adverse decision by the
 Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
 and RULE 809.62.

Appeal No. 2020AP2114-FT Cir. Ct. No. 2019FA162

STATE OF WISCONSIN IN COURT OF APPEALS
 DISTRICT II

IN RE OF THE MARRIAGE OF:

THOMAS G. HIGGINS,

 PETITIONER-APPELLANT,

 V.

JENNIFER S. HAHN F/K/A JENNIFER S. HIGGINS,

 RESPONDENT-RESPONDENT.

 APPEAL from an order of the circuit court for Walworth County:
DAVID M. REDDY, Judge. Affirmed.

 Before Gundrum, P.J., Neubauer and Grogan, 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. 2020AP2114-FT

 ¶1 PER CURIAM. Thomas Higgins appeals from a circuit court order
denying his WIS. STAT. § 806.07(1)(c) (2019-20)1 motion to reopen the judgment
divorcing him from Jennifer Hahn because she did not disclose her true financial
condition before the parties settled the financial aspects of their divorce. Because
the circuit court did not misuse its discretion when it denied Higgins's motion, we
affirm.

 ¶2 As a threshold matter, we agree with Hahn that Higgins's appellate
briefs do not comply with the Rules of Appellate Procedure because they do not
contain sufficient citations to the record as required by WIS. STAT.
RULES 809.19(1)(d) and (e). "We have no duty to scour the record to review
arguments unaccompanied by adequate record citation." Roy v. St. Lukes Med.
Ctr., 2007 WI App 218, ¶10 n.1, 305 Wis. 2d 658, 741 N.W.2d 256.2 The
appendix to the appellant's brief also lacks record references and violates the
Rules of Appellate Procedure. RULE 809.19(2)(a).

 ¶3 The dispute in this case arises from the valuation of Hahn's 401k
retirement account for purposes of the property division. In a WIS. STAT.
§ 806.07(1)(c) motion seeking relief from the property division, Higgins claimed
that Hahn did not disclose the true value of her 401k account for their October
2019 mediation. At an early hearing on Higgins's § 806.07(1)(c) motion, Hahn
looked up the value of her 401k as of the mediation date and revealed that it was
$1.5 million. In light of this increased value, Higgins sought an additional share

 1
 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

 Generally, we only reach the merits of the arguments for which Hahn's respondent's
 2

brief provides record citations.

 2
 No. 2020AP2114-FT

of Hahn's 401k, which was valued at $1.3 million in April 2019 and $1.1 million
in the mediation spreadsheets, as further discussed below.

 ¶4 Several hearings were held on Higgins's WIS. STAT. § 806.07(1)(c)
motion to reopen the property division. For purposes of the motion, the parties
agreed that the 401k's value should have been set as of the October 2019
mediation date.

 ¶5 The mediator testified that he did not recall if Hahn provided him
with an updated financial disclosure statement at the mediation, and he only had
the materials provided to him on October 2, 2019, the day before mediation. The
mediator had almost no notes from the mediation, and he did not recall many of
the details of the mediation. However, he did recall spending most of the time
addressing the parties' disputes over the disposition of personal property.

 ¶6 Higgins testified that he did not know if his counsel provided an
updated financial statement to the mediator and Hahn's counsel before the
mediation. At the time of the mediation, Higgins knew of the $1.3 million 401k
valuation, but he learned of the $1.5 million valuation after the judgment of
divorce was entered.

 ¶7 Hahn testified that she filed her first financial disclosure statement in
April 2019 and reported a 401k value of $1.3 million. Thereafter, Hahn tried to
get Higgins to agree on an asset valuation date for the property division, but
Higgins never responded. She timely provided all information requested by
Higgins. Prior to the mediation and despite numerous requests, she did not receive
updated financial figures from Higgins. The mediation occurred without an
agreed-upon valuation date; the parties were in separate rooms between which the
mediator moved. Hahn estimated that ninety percent of the mediation time was

 3
 No. 2020AP2114-FT

spent arguing over the disposition of personal property, which the mediator found
frustrating.

 ¶8 Within the Higgins-supplied materials the mediator delivered to
Hahn to review was Higgins's valuation of her 401k at $1.1 million, which was
the value on December 31, 2018. During mediation, Hahn raised with the
mediator her request for a valuation date, and she assumed that the mediator
conveyed that request to Higgins. The mediator returned and conveyed that
Higgins wanted to use the numbers stated on the spreadsheet Higgins brought to
the mediation, Exhibit R14. Exhibit R14 shows "Compromise Values" as of
July 31, 20113 and lists the value of the 401k as $1.1 million. Hahn claimed that
toward the end of the mediation, she gave the mediator a July 31, 2019 401k
balance of $1.4 million, so the mediator knew that the 401k valuation on Higgins's
spreadsheet was not up to date.4 There was no discussion about adjusting 401k
values, and Higgins insisted on using the numbers on Exhibit R14. After the
mediation, Hahn received updated figures from Higgins, but the figures were still
incomplete. She revealed everything in her financial disclosure statement during
the proceedings; Higgins did not.

 ¶9 As a result of the mediation, the parties had a property division and
maintenance plan. Hahn testified that she compromised her claims via mediation,
and the marital settlement agreement contains the parties' acknowledgement that
they were compromising disputed claims. A post-mediation letter from Higgins's

 3
 We assume that the year 2011 is a typographical error.
 4
 Hahn provided the 401k's value as of July 31, 2019 ($1.4 million) because that
matched the only valuation date Higgins had provided for his assets.

 4
 No. 2020AP2114-FT

counsel confirmed that the mediator was using his spreadsheet, Exhibit R14. A
post-mediation spreadsheet (Exhibit R9) showed the same value for the 401k as
Exhibit R14: $1.1 million. Higgins's counsel drafted the marital settlement
agreement. Higgins's counsel admitted that he had the $1.3 million valuation in
his possession, but he still used the lower $1.1 million valuation in the materials
leading up to the marital settlement agreement. Hahn did not know the value of
her 401k at the time of mediation or through entry of the judgment of divorce, and
she had no actual knowledge that the value increased from the last value she
provided to Higgins and the mediator.

 ¶10 At the divorce hearing, Higgins asked if there was a substantial
change to the 401k balance. Because he did not specify a balance or valuation
date as a reference point, Hahn thought Higgins's reference point was the
$1.4 million value she contends she provided at mediation. Hahn did not file
updated valuations with the court because Higgins was not updating his valuations
with the court. At her counsel's request, Hahn provided the $1.1 million 401k
valuation to Delphi Consulting Group for its use in preparing a QDRO because
that figure matched the 401k valuation on Exhibits R14 and R9, the spreadsheets
from the mediation.

 ¶11 In denying Higgins's WIS. STAT. § 806.07(1)(c) motion to reopen
the judgment of divorce, the circuit court recognized that whether to grant the
motion was within its discretion. The court found Hahn more credible than
Higgins because his "recollection [and clarity] was poor at best." The court found
that Hahn clearly recalled events, and "her testimony was very sharp." The court
found that the mediator did not receive Hahn's updated 401k value of
$1.4 million. Nevertheless, the court found that Higgins did not show that Hahn
engaged in an intentional act to deprive him of information relating to the value of

 5
 No. 2020AP2114-FT

her 401k account or to misrepresent her financial condition to Higgins to gain an
advantage in the divorce. The court found that Hahn was acting in the context of
the "tit for tat" approaches the parties took toward disclosing financial information
to each other. Higgins did not establish that Hahn knew of the $1.5 million
valuation, which was disclosed postjudgment, and there were several 401k
valuations floating around in the case, including the $1.1 million valuation on
Higgins's spreadsheet (even though Higgins's counsel was aware of a subsequent
$1.3 million valuation that was not inserted into the spreadsheet). The court did
not find any extraordinary circumstances that warranted reopening the property
division.

 ¶12 WISCONSIN STAT. § 806.07(1)(c) provides:

 (1) On motion and upon such terms as are just, the court …
 may relieve a party or legal representative from a judgment,
 order or stipulation for the following reasons:

 ….

 (c) Fraud, misrepresentation, or other misconduct of an
 adverse party;

 ¶13 We review a circuit court's decision denying a WIS. STAT. § 806.07
motion for a misuse of discretion. Franke v. Franke, 2004 WI 8, ¶54, 268
Wis. 2d 360, 674 N.W.2d 832. We will affirm the circuit court's discretionary
decision if "the circuit court ‘examined the relevant facts, applied a proper
standard of law, and, using a demonstrated rational process, reached a conclusion
that a reasonable judge could reach.'" Id. (citation omitted). "We sustain a
[circuit] court's findings of fact unless they are clearly erroneous." Klinefelter v.
Dutch, 161 Wis. 2d 28, 33, 467 N.W.2d 192 (Ct. App. 1991). The circuit court "is
the ultimate arbiter of the credibility of the witnesses and the weight to be given to

 6
 No. 2020AP2114-FT

each witness's testimony." State v. Peppertree Resort Villas, Inc., 2002 WI App
207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345 (citation omitted).

 ¶14 The circuit court found credible Hahn's testimony relating to her
disclosure of the value of her 401k. Higgins does not confront the circuit court's
findings based on its credibility determinations and essentially argues that other
parts of the record support his view that Hahn failed to disclose such that the
circuit court should have granted his WIS. STAT. § 806.07 motion to reopen. This
court does not reweigh the evidence, make credibility determinations, or find
facts.5 See Dickman v. Vollmer, 2007 WI App 141, ¶14, 303 Wis. 2d 241, 736
N.W.2d 202; Kovalic v. DEC Int'l, 186 Wis. 2d 162, 172, 519 N.W.2d 351 (Ct.
App. 1994) (this court does not find facts). The circuit court's findings of fact
based on its credibility determinations are not clearly erroneous, and they preclude
relief under § 806.07(1)(c).

 ¶15 In the circuit court, Higgins sought relief under WIS. STAT.
§ 806.07(1)(c) on the grounds of "Fraud, misrepresentation, or other
misconduct[.]" This is the conduct the circuit court found Higgins did not prove.
However, on appeal, Higgins argues that Hahn violated her WIS. STAT.
§ 767.127(5)6 duty to disclose her financial condition, but he does not establish for

 5
 For this reason, we do not discuss Higgins's argument that his credibility was not
relevant to the circuit court's decision.
 6
 WISCONSIN STAT. § 767.127(5) provides:

 (continued)

 7
 No. 2020AP2114-FT

this court by record citation that he relied upon this statute in the circuit court.
Additionally, Higgins offers no authority for the proposition that a violation of
§ 767.127(5), if such occurred, necessarily proves his § 806.07(1)(c) claim. We
will not look for legal authority to support a party's argument. See State v. Pettit,
171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) ("We cannot serve as both
advocate and judge.").

 ¶16 We reject Higgins's view that this is a Franke case. In Franke, the
circuit court found that the husband did not fully disclose his assets. Franke, 268
Wis. 2d 360, ¶58. Higgins overlooks the circuit court's finding that he did not
establish that Hahn knew of the $1.5 million 401k valuation at the time of
mediation. Furthermore, Higgins used an outdated $1.1 million valuation for the
401k in his spreadsheets, he executed the marital settlement agreement even
though he and his counsel knew that the last valuation they had for the 401k was
$1.3 million, and he never responded to Hahn's request to set a valuation date for
marital assets. We observe that even though he seeks relief from the property
division on the grounds that Hahn did not update her 401k's value, Higgins admits
on appeal that he did not update his financial disclosures prior to entry of the
judgment of divorce.

 If a party intentionally or negligently fails to disclose
 information required by sub. (1) and as a result any asset with a
 fair market value of $500 or more is omitted from the final
 distribution of property, the party aggrieved by the nondisclosure
 may at any time petition the court granting the annulment,
 divorce, or legal separation to declare the creation of a
 constructive trust as to all undisclosed assets…. The court shall
 grant the petition upon a finding of a failure to disclose assets as
 required under sub. (1).

 8
 No. 2020AP2114-FT

 ¶17 We affirm the circuit court's denial of Higgins's WIS. STAT.
§ 806.07(1)(c) motion.

 By the Court.—Order affirmed.

 This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

 9