author: WEDEMEYER, EJ.

text:
    Nancy Montalvo, Brian Vila, and Emanuel L. Vila, by his Guardian ad Litem, Timothy J. Aiken, Plaintiffs-Appellants, Blue Cross Blue Shield United of Wisconsin, Wisconsin Division of Health Care Finance, and Primecare Health Plan, Inc., Involuntary Plaintiffs, v. Terre Borkovec, M.D., Defendant, Brent W. Arnold, M.D., Jonathan H. Berkoff, M.D., St. Mary's Hospital of Milwaukee, Wisconsin Patients Compensation Fund, and Physicians Insurance Co. of Wisconsin, Defendants-Respondents.
    Court of Appeals

      No. 01-1933.

      Submitted on briefs March 28, 2002.

    Decided May 29, 2002.

    2002 WI App 147
    (Also reported in 647 N.W.2d 413.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the brief of Timothy J. Aiken and James C. Gallanis oí Aiken & Scoptur, S.C., Milwaukee.
    On behalf of the defendant-respondent Wisconsin Patients Compensation Fund, the cause was submitted on the brief of John F. Mayer and Jeremy T Gill of Nash, Spindler, Grimstad & McCracken LLP, Manito-woc.
    On behalf of the defendant-respondent Brent W. Arnold, M.D., the cause was submitted on the brief of Michael P. Malone and Pamela J. Tillman of Hinshaw & Culbertson, Milwaukee.
    On behalf of the defendant-respondent Jonathan H. Berkoff, M.D., the cause was submitted on the brief of Linda E.B. Hansen of Nilles & Nilles, S.C., Milwaukee.
    On behalf of the defendant-respondent St. Mary's Hospital of Milwaukee, the cause was submitted on the brief of Marilyn M. Carroll of Kravit, Gass, Hovel & Leitner, S.C., Milwaukee.
    Before Wedemeyer, EJ., Fine and Schudson, JJ.

      Petition to review denied 9-26-02.

   WEDEMEYER, EJ.

¶ 1. Nancy Montalvo, Brian Vila and Emanuel L. Vila (by his guardian ad litem, Timothy J. Aiken) appeal from judgments entered after the trial court dismissed their complaint against Dr. Brent W. Arnold, Dr. Jonathan H. Berkoff, St. Mary's Hospital of Milwaukee, the Wisconsin Patients Compensation Fund and Physicians Insurance Co. of Wisconsin. The complaint alleged that the defendants were negligent for failing to sufficiently inform Montalvo and Vila of the risk of disability to Emanuel following his premature birth by cesarean section.

¶ 2. Montalvo, Vila, and Emanuel raise ten arguments. We address only those arguments necessary to the resolution of this case. Because under our current rules of pleading and procedure, substantive law, and public policy the plaintiffs' claims cannot be pursued, we affirm.

I. BACKGROUND

¶ 3. On November 21,1996, Montalvo entered St. Mary's Hospital in Milwaukee, Wisconsin, with preterm labor symptoms. An ultrasound revealed that the baby was 23 and 3/7 weeks old, and weighed 679 grams. Attempts to interrupt her labor and delay the birth were unsuccessful. Prior to delivery of the child, the parents executed an informed consent agreement for a cesarean procedure.

¶ 4. Dr. Terre Borkovec performed the cesarean section. At birth, Emanuel was "handed off' to Dr. Arnold, a neonatologist, who successfully performed life-saving resuscitation measures.

¶ 5. On November 19, 1999, Montalvo filed a complaint against Borkovec and Arnold alleging that both physicians violated the informed consent statute, Wis. Stat. § 448.30, in performing the cesarean section. The complaint also alleged that Arnold, Berkoff, and St. Mary's Hospital were negligent for violating the same informed consent statute when they performed "lifesaving measures" for Emanuel. The complaint alleged that because the physicians failed to advise the parents of "the risks or potential consequences of a child born at 23 or 24 weeks gestation and/or with a birth weight of less than 750 grams," consent was not informed and a variety of damages resulted.

¶ 6. Berkoff, Arnold, and St. Mary's Hospital moved to dismiss the claims contending that the complaint failed to state a claim upon which relief could be granted pursuant to Wis. Stat. § 802.06(2)(a)6. During a hearing on the motions, and prior to rendering a decision, the trial court ascertained that the plaintiffs were not alleging harm to Emanuel as the result of "extraordinary care measures" but were claiming that the decision to use "extraordinary care measures" should have been relegated to them as parents rather than left to the physicians. Lastly, the plaintiffs were not alleging that Emanuel was disabled by any actions taken by the physicians or St. Mary's Hospital.

¶ 7. The trial court dismissed the complaint ruling first that the only claim pled for a violation of the informed consent statute in performing the cesarean section was against Arnold. Because, however, he was only a bystander to the delivery, he was not required under the statute to provide informed consent because he did not perform the procedure. Second, the trial court ruled that Wisconsin law does not leave the resuscitation decision upon the birth of a child solely to the parents because of the community's interest in protecting children, and the physicians' commitment to preserving life. Montalvo now appeals.

II. ANALYSIS

Standard of Review

¶ 8. A motion to dismiss a complaint for failure to state a claim upon which relief may be granted tests the legal sufficiency of the pleading. Evans v. Cameron, 121 Wis. 2d 421, 426, 360 N.W.2d 25 (1985). As a question of law, we review the trial court's decision independently, keeping in mind the value we accord the trial court's analysis. We must affirm a judgment dismissing a complaint for failure to state a claim if, upon review of the complaint, as liberally construed, it is quite clear that under no conditions can the plaintiff recover based upon the facts alleged and inferences reasonably drawn. Bartley v. Thompson, 198 Wis. 2d 323, 332, 542 N.W.2d 227 (Ct. App. 1995). With these rubrics of review in mind, we now examine the issues dispositive of this appeal.

A. Rules of Pleading and Procedure.

¶ 9. The original defendants in this case were Drs. Borkovec, Arnold, Berkoff and St. Mary's Hospital. Borkovec, who performed the cesarean section, was voluntarily dismissed from the case. That left Arnold as the only target allegedly negligent for failure to obtain a properly informed consent for the performance of the cesarean section. Yet, it was undisputed that Arnold, although present when the cesarean section occurred, did not participate in the procedure. The trial court construed Wis. Stat. § 448.30 to provide that only the treating physician, here Borkovec, owed the responsibility of informed consent to the parents. Borkovec, however, was no longer a party to the action. The statute does not impose the duty of informed consent on non-treating physicians. Because Arnold neither participated nor assisted, he was not a treating physician with respect to the cesarean procedure, and did not have a duty to comply with the informed consent statute.

¶ 10. Thus, the trial court concluded that with respect to the cesarean procedure, no claim had been properly pleaded upon which relief could be granted. We know of no authority to the contrary. In this respect, the trial court did not err. On appeal, Montalvo has not contested this ruling. Consequently, the only claims remaining to be addressed by the trial court were the failure to properly obtain informed consent relating to resuscitation efforts by Arnold, Berkoff, and St. Mary's Hospital.

B. Substantive Law and Statutory Law.

¶ 11. On the remaining informed consent issue relating to the resuscitation efforts, the essential question is whether the complaint states a legally cognizable claim against the remaining defendants. The trial court ruled it did not.

¶ 12. Our informed consent law requires a physician to disclose information necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis. Kuklinski v. Rodriguez, 203 Wis. 2d 324, 329, 552 N.W.2d 869 (Ct. App. 1996). It is a right found in both the common law of this state and in statutory provisions. Wisconsin Stat. § 448.30 codified the duty-to-disclose law recognized by Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 13, 227 N.W.2d 647 (1975), and reads:

Information on alternate modes of treatment.
Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physician's duty to inform the patient under this section does not require disclosure of:
(1) Information beyond what a reasonably well-qualified physician in a similar medical classification would know.
(2) Detailed technical information that in all probability a patient would not understand.
(3) Risks apparent or known to the patient.
(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.
(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.
(6) Information in cases where the patient is incapable of consenting.

¶ 13. The statute is basically divided into two parts: what information a treating physician is obligated to convey to a patient and what information he/she need not convey. The plain language of the statute places an obligation on a physician to provide information only about available and viable options of treatment.

¶ 14. In addressing the obligatory first part of the statute, our supreme court has declared: "[W]hat a physician must disclose is contingent upon what, under the circumstances of a given case, a reasonable person in the patient's position would need to know in order to make an intelligent and informed decision." Johnson v. Kokemoor, 199 Wis. 2d 615, 639, 545 N.W.2d 495 (1996). Restricting the application of the obligation, we declared in Mathias v. St. Catherine's Hospital, Inc., 212 Wis. 2d 540, 569 N.W.2d 330 (Ct. App. 1997): "The law in Wisconsin on informed consent is well settled .... the duty to advise a patient of the risks of treatment lies with the doctor .... The court was explicit in pointing out that the duty to obtain informed consent lay with the doctor, not the hospital." Id. at 548 (citations omitted). Thus, St. Mary's Hospital was not a proper defendant. We continue the analysis then only as the second claim applies to Arnold and Berkoff.

¶ 15. Doubtless, the doctrine of informed consent comes into play only when there is a need to make a choice of available, viable alternatives. In other words, there must be a choice that can be made. The process of decision-making necessarily implies assessing and selecting an available alternative. In the context of treatment required after the cesarean procedure was performed on Emanuel, there are two reasons why no available, viable alternative existed to give rise to the obligation to engage in the informed consent process.

¶ 16. First, requiring the informed consent process here presumes that a right to decide not to resuscitate the newly born child or to withhold life-sustaining medical care actually existed. This premise is faulty. In Edna M.F v. Eisenberg, 210 Wis. 2d 557, 568, 563 N.W.2d 485 (1997), our supreme court set forth the preconditions required for permitting the withholding or withdrawal of life-sustaining medical treatment. There, the appointed guardian of her incompetent sister, Edna, sought permission to direct the withholding of medical care from Edna even though she was not in a persistent vegetative state. Id. at 559-60. She claimed that Edna would not want to live in her condition, completely dependent on others for her care and existence, non-responsive and immobile. Id. at 560-61. The court, in refusing to extend the right to refuse life-sustaining medical treatment beyond individuals in a persistent vegetative state, relied on the analysis of the United States Supreme Court in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990): "[W]e think a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual." Edna M.F., 210 Wis. 2d at 563 (quoting Cruzan, 497 U.S. at 282).

¶ 17. The Edna court, in examining the sensitive issues before it and the need to balance the interests of the individual versus those of the state, was quick to appreciate the consequences of ultimate decisions made by third-party surrogates for those who cannot speak for themselves. It thus concluded that either withholding or withdrawing life-sustaining medical treatment is not in the best interests of any patient who is not in a persistent vegetative state. Edna M.F., 210 Wis. 2d at 566-68. Thus, in Wisconsin, in the absence of a persistent vegetative state, the right of a parent to withhold life-sustaining treatment from a child does not exist. It is not disputed here that there was no evidence that Emanuel was in "a persistent vegetative state." Accordingly, the alternative of withholding life-sustaining treatment did not exist.

¶ 18. The second reason why a viable alternative did not exist to trigger informed consent is the existence of the United States Child Abuse Protection and Treatment Act (CAPTA) of 1984, Pub. L. No. 98-457, 98 Stat. 1749 (codified at 42 U.S.C. § 5101 et. seq.). Because Wisconsin has fulfilled the necessary obligations to receive federal funds under CAPTA, CAPTA and its regulations are fully applicable in this state. Jeanine B. v. Thompson, 967 F. Supp. 1104, 1111-12, 1118 (E.D. Wis. 1997).

¶ 19. CAPTA was enacted to establish eligibility for states to obtain federal funding for the prevention of child abuse and to develop and implement a successful and comprehensive child and family protection strategy. Under CAPTA, states must have in place procedures for responding to child neglect. 42 U.S.C. § 5106(b)(4)(C). The Act includes a provision preventing "the withholding of medically indicated treatment from a disabled infant with a life-threatening condition." 45 C.F.R. § 1340.15(b)(1). In the regulations enacted under the statute, "withholding of medically indicated treatment" is defined as "the failure to respond to the infant's life-threatening conditions by providing treatment... which, in the treating physician's . . . reasonable medical judgment, will be most likely to be effective in ... correcting all such conditions. ..." 45 C.F.R. § 1340.15(b)(2). The regulations further include the "authority to initiate legal proceedings ... to prevent the withholding of medically indicated treatment from disabled infants with life-threatening conditions." 45 C.F.R. § 1340.15(c)(2)(iii). The implied choice of withholding treatment, proposed by the plaintiffs, is exactly what CAPTA prohibits.

¶ 20. It is noteworthy that in the complaint, plaintiffs did not allege that Emanuel was born with a known disability or that they would have chosen to withhold life-sustaining treatment. Instead, they allege that they were not given the statistics about the possible risks that he could develop a disability if he lived, and they should have been given the opportunity to withhold life-saving measures immediately after Emanuel's birth. Under the common law of Wisconsin and federal statutory law, however, Emanuel's parents did not have the right to withhold or withdraw immediate post-natal care from him. Thus, no viable alternative health treatment existed to trigger the informed consent process.

¶ 21. We now examine the applicability of the second part of the informed consent statute; i.e., the six exception sections, providing conditions under which the treating physician is not obligated to inform the patient. Germane to our analysis is subsection (5) which renders unnecessary the disclosure of "information in emergencies where failure to provide treatment would be more harmful to the patient them treatment."

¶ 22. The complaint eilleges that "attempts ... to interrupt the preterm labor. . . [were] unsuccessful" resulting in Emanuel's premature birth by cesarean section, and that "upon Emanuel Vila's delivery, he was immediately handed off to defendant Brent Arnold, M.D. who initiated heroic and extraordinary life saving measures" on him. The allegations suggest that an emergency arose requiring an immediate response, which occurred. Montalvo does not suggest that all emergency actions should have ceased while Arnold explained possible options. Such an argument would be frivolous. Given the allegations of the complaint, it cannot be gainsaid that failure to provide treatment would have been more harmful than treatment.

¶ 23. Although Montalvo concedes that as parents they have "no right to terminate the child's life," they assert that if "there is a balance between giving therapies that help, but which may also seriously harm, the parents should be the final arbiters of that choice." In the exigent circumstances confronting the treating physician here, no "balance" existed as proposed by the parents. Failure to treat was tantamount to a death sentence. Under the pleaded circumstances, informed consent was not required.

C. Public Policy.

¶ 24. The trial court, in rendering its oral decision reasoned:

That as far as I can read from reading the materials in the complaint that presumes that the parents had a legally enforceable right to reject or withhold treatment. From what is alleged in the complaint there was no gap, space in time for which they could sit down and discuss statistics or any other manners of dealing with the situation. It was a life or death situation. When a child is not breathing there is no time —there is no time. Any —any amount of loss of oxygen could be devastating to the child certainly....
. .. What the doctors did was save this child's life, and I understand the legal position of the parents is that was a decision they should make, but I don't believe that's one that we as a community in our public policy that's been adopted by our state and our court can place wholly in the hands of the parents.
Protection of children is something that the corn-munity has an interest, in and a parent does not have the right to withhold necessary emergency treatment, and I agree entirely that had the doctors acted in any other way they would face not only civil —civil cases against them but possibly criminal cases. We simply can't say that the possibility that this child could be disabled or even the probability if it is that strong is sufficient to withhold li[f]e-saving measures and decide this child does not deserve to live.

Without a doubt, a major underpinning of the court's decision was public policy.

¶ 25. In Wisconsin, the interest in preserving life is of paramount significance. L.W. v. L.E. Phillips Career Dev. Ctr., 167 Wis. 2d 53, 90, 482 N.W.2d 60 (1992). As a result, there is a presumption that continued life is in the best interests of a patient. Id. at 86. In the absence of proof of a persistent vegetative state, our courts have never decided it is in the best interests of a patient to withhold or withdraw life-sustaining medical care. When appropriate circumstances are present, Wisconsin courts have not hesitated to dismiss complaints on public policy grounds, particularly where allowing recovery would place an unreasonable burden on physicians or where allowing recovery would provoke an exercise that has no sensible or just terminal point. Rieck v. Medical Protective Co., 64 Wis. 2d 514, 518-19, 219 N.W.2d 242 (1974).

¶ 26. The physicians involved in the resuscitation measures could be faced with a "damned if you do, damned if you don't" dilemma as demonstrated by the result of Burks v. St. Joseph's Hospital, 227 Wis. 2d 811, 596 N.W.2d 391 (1999). In Burks, the physicians made a decision not to resuscitate based upon a judgment that a premature baby was not viable. Id. at 813. The baby died. Id. The parents brought a claim under the Emergency Medical Treatment and Active Labor Act (EMTALA) against the physician who determined that the infant was not viable and who did not resuscitate the child. Id. at 814. The claim was allowed because a hospital is required to provide emergency room patients with a medical screening examination including care to stabilize them. Id. at 817-18. If treating physicians can be sued for failing to resuscitate a baby they feel is not viable, and for resuscitating a viable baby such as Emanuel, they are placed in a continuing "damned" status. The public policy of Wisconsin does not tolerate such a "lose-lose" enigma.

¶ 27. If the parents' claim is allowed to proceed, courts will be required to decide which potential imperfections or disabilities are, as characterized in appellant's brief, "worse than death." They will have to determine which disability entitles a child to live and which disability allows a third-party surrogate to withhold or withdraw life-sustaining treatment with the intent to allow a disabled person to die. This determination could vary greatly based on the parents' beliefs. One set of parents may view a particular disability as "worse than death," while another set of parents would not. Such a process, not unreasonably, has kaleidoscopic, unending implications. The triad court did not err in reaching its conclusion based upon public policy reasons.

By the Court. — Judgments affirmed.

       They argue: (1) Montalvo had a right to informed consent prior to the cesarean procedure; (2) the decision to use potentially harmful therapy is subject to informed consent; (3) Wisconsin abortion law does not apply to this situation; (4) with the exception of the drug/alcohol abuse provisions of ch. 48, expectant mothers have the absolute right to control the manner of delivery; (5) the concept of "viability" cannot mean preservation of life at any cost; (6) the lifelong ramifications of perinatal treatment decisions mandate that such decisions be made by the parents only after being fully informed of all the risks and alternatives; (7) federal funding statutes do not control Wisconsin informed consent law; (8) the Americans with Disabilities Act does not control this case; (9) there is no constitutional basis for federal or state government interference in the medical decision-making process; and (10) compelling parents to agree to surgeries or therapies whose benefit versus risk analysis is unclear puts an unfair burden on parents.

       For reasons undisclosed in the record, Dr. Terre Rorkovec was voluntarily dismissed from the action.

       The dismissal of St. Mary's Hospital at the complaint stage has not been addressed by the plaintiffs. We therefore deem the issue abandoned. See Reiman Assocs. v. R/A Adven Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292 (Ct. App. 1981).

       In Iafelice v. Zarafu, 534 A.2d 417 (N.J. Super. Ct. App. Div. 1987), the New Jersey Appellate Division examined the exact same issue presented by this appeal and exclaimed:
      The mistaken premise of this appeal is that allowing the child to die untreated was a legally viable alternative... we find no support for the belief that a newborn child may be put to death through [allowing a natural delivery with no resuscitation efforts upon birth] on the mere expectation that she will, in some unquantified way, be a defective person. As the Supreme Court wrote in Berman v. Allan, 80 N.J. 421, 430, 404 A.2d 8 (1979), "It is life itself, that is jealously safeguarded, not life in a perfect state."

        Id. at 418.


source: Caselaw Access Project

author: NETTESHEIM, EJ.

license: Public Domain

text:
    County of Fond du Lac, Plaintiff-Respondent, v. Kevin C. Derksen, Defendant-Appellant.

    Court of Appeals

      No. 01-2870.

      Submitted on briefs April 26, 2002.

    Decided May 29, 2002.

    2002 WI App 160
    (Also reported in 647 N.W.2d 922.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Kevin C. Derksen, pro se.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kevin G. Crowley, assistant district attorney, Fond du Lac.
    Before Nettesheim, EJ., Anderson and Snyder, JJ.

       Petition to review denied 9-3-02.

   NETTESHEIM, EJ.

¶ 1. In this case, we put to rest the notion held by some that a person has an absolute and unfettered right, free of government regulation, to operate a motor vehicle on the roadways of this state. Rather, this so-called "right" is, in fact, a privilege that is subject to reasonable regulation by the legislature or other political subdivisions of the state.

¶ 2. Kevin C. Derksen appeals pro se from a forfeiture judgment following a bench trial at which the circuit court found him guilty of operating a motor vehicle after suspension of his operating privileges contrary to the Fond du Lac County ordinances that adopted Wis. Stat. § 343.44(l)(a) (1999-2000). Derksen's arguments, or variants of them, have been previously raised by Derkesen and others, in a steady stream of one-judge appeals over the years. In fact, this court recently rejected similar arguments by Derksen in another case. See County of Fond du Lac v. Derksen, Nos. 01-1900 and 01-1901, unpublished slip op. (WI App Feb. 6, 2002). We similarly reject those arguments in this case.

FACTS

¶ 3. The facts are undisputed. On May 12, 2001, Derksen was issued a traffic citation by the Fond du Lac County Sheriffs Department for operating after suspension, first offense. At a bench trial on July 25, 2001, the circuit court found Derksen guilty of the offense and imposed a fine plus costs. Derksen appeals, identifying twenty-seven issues.

DISCUSSION

¶ 4. Twenty-five years ago, in State v. Waste Management, Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978), Justice Robert W. Hansen began the opinion with what has been cited by our appellate courts numerous times since:

An appellate court is not a performing bear, required to dance to each and every tune played on an appeal. Here appellant raises twenty-nine challenges to a judgment of conviction. However, we find the challenges to fit into five categories and will discuss each category. Any of the twenty-nine issues raised and not discussed in any of the five categories can be deemed to lack sufficient merit or importance to warrant individual attention.

In this case, some of Derksen's twenty-seven issues are so far off the wall as to not merit discussion.

¶ 5. As to Derksen's remaining issues, we determine that they all derive from his erroneous understanding of the law or his refusal to acknowledge such law. Derksen's theory is as follows: He is a sovereign free man who lives in this country by free choice. With respect to the public highways of this country, he has not entered into any contract whereby he has given up his rights as a sovereign free man in exchange for a "license" and therefore continues to enjoy his rights "without interference of police power." There are only two instances where the government may exercise control over his person without a contract. First, the government may inhibit his freedom if he engages in some kind of penal act where he victimizes another person. Second, his right to travel may be regulated only if he is "hauling for hire" because he is then engaged in interstate commerce. Absent one of these two exceptions, the government has no control over his right to travel. He has a "God-given" and constitutionally recognized inalienable right to travel anywhere in this country and does not need a "license" to do so. The courts have no subject matter jurisdiction to hear a traffic matter absent a contract, proof of a penal violation, or proof that he was hauling for hire.

¶ 6. A corollary to Derksen's theory is that even if he is subject to the traffic laws of Wisconsin and Fond du Lac County, he has a right to confront his accuser, who must be a human being, not a corporate body such as the County in this case.

¶ 7. We agree with Derksen's contention that he has a state and federal constitutional right to travel. See Kent v. Dulles, 357 U.S. 116, 125 (1958); Ervin v. State, 41 Wis. 2d 194, 200-01, 163 N.W.2d 207 (1968). But our agreement stops there. We reject Derksen's further assumption that his right to travel translates into an unfettered right to operate a motor vehicle on the roadways of this state free of government regulation so long as the operation is not for a commercial purpose. We reject this proposition because no authority exists for it. To the contrary, both this court and the Wisconsin Supreme Court have repeatedly recognized that the operation of a motor vehicle is a privilege properly regulated by the state. Steeno v. State, 85 Wis. 2d 663, 671, 271 N.W.2d 396 (1978); State v. Stehlek, 262 Wis. 642, 646, 56 N.W.2d 514 (1953); Kopf v. State, 158 Wis. 2d 208, 214, 461 N.W.2d 813 (Ct. App. 1990). And when that privilege is abused by operating without a valid operator's license, such conduct can even be prosecuted criminally without violating any constitutional protections. See Steeno, 85 Wis. 2d at 674 (penalties for operating after suspension or revocation do not constitute cruel and unusual punishment); State v. Duffy, 54 Wis. 2d 61, 194 N.W.2d 624 (1972); State v. Sittig, 75 Wis. 2d 497, 501, 249 N.W.2d 770 (1977) (operating after revocation statute constitutionally sound against an equal protection challenge).

t3]

¶ 8. There is a compelling basis for differentiating the right to travel from the means of travel. The automobile of today, with engineering emphasis on power and speed, can be a crippling and potentially lethal weapon in the hands of an irresponsible driver. See Steeno, 85 Wis. 2d at 671. Licensing helps to assure safe drivers and also provide a good record-keeping system for identifying irresponsible drivers. Derksen offers isolated quotes from older cases from other jurisdictions that facially support some of his arguments. But we are not bound by those cases. Instead, we are bound by our supreme court and, in a constitutional sense, by the decisions of the United States Supreme Court. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). We refuse to follow and decline to discuss the ancient cases from other jurisdictions cited by Derksen.

¶ 9. Moreover, Derksen's claim for an unfettered and absolute right to travel is contrary to this court's decision in Scheunemann v. City of West Bend, 179 Wis. 2d 469, 507 N.W.2d 163 (Ct. App. 1993). There, the appellants argued that a municipal ordinance regulating "cruising" unconstitutionally infringed on the right to travel. Id. at 478. We upheld the constitutionality of the ordinance and offered the following important observation:

The city's cruising ordinance is not one which merely promotes a self-serving interest of government at the expense of the constitutional right of the people to freedom of movement. Rather, the purpose of the ordinance is to create a safer and less congested public street so that the general populace might more easily travel the area in question. Viewed from this perspective, it can be said that the ordinance enhances rather than restricts the constitutional right to travel.

Id. at 481.

¶ 10. The same principle applies in this case. The licensing requirement offers a degree of assurance that the roadways will be safe, thereby enhancing and promoting the goal of safe travel to all. Derksen's claim to a special exemption from this requirement denigrates, rather than promotes, the constitutional right to travel generally and the privilege of operating a motor vehicle specifically. Derksen wants to elevate his constitutional right to travel at the expense of others. We reject that attempt.

¶ 11. Derksen also argues that the licensing requirement may be invoked only when the operator is engaged in interstate commerce. In support, he relies on Hendrick v. Maryland, 235 U.S. 610 (1915). Derksen's reliance is misplaced. In that case, Hendrick argued that the state of Maryland was attempting to regulate interstate commerce when it insisted that automobiles be registered as a condition precedent to being driven on the highway. Id. at 620-21. The Supreme Court rejected that argument, reasoning that registration was a method of collection by which the citizens of the state could finance the building of roads in return for Hendrick's use of the roadway. Id. at 622-23. There is no hint in Hendrick that the Supreme Court was reaching beyond the issue raised in that case so as to rule that traffic laws are not enforceable against motor vehicle users not engaged in interstate commerce. No case coming out of the United States Supreme Court since Hendrick has ever reached that conclusion.

¶ 12. Derksen further contends that Fond du Lac County has no authority to prosecute this action in making this argument. Derksen seems to differentiate the County from its citizens. Apparently, Derksen views the County as an unseen and autocratic force composed of powerful but nameless persons bent on circumscribing his rights. That is not so. The body politic of Fond du Lac County is the product of our representative form of government. The citizens elect the persons who pass the ordinances and the citizens may un-elect them. While it is true that the County is "a corporation," when the County prosecutes a traffic code violation case, it is really the citizens of Fond du Lac County who are the complainants. The citizens do not want people driving vehicles who have not been properly licensed. That is why the citizens' representatives have voted to penalize those who operate after suspension of their licenses.

CONCLUSION

¶ 13. Under Stehlek, Steeno and Kopf, Derksen has a privilege, but not a "right," to drive a motor vehicle upon a public highway. To exercise that privilege, Derksen had to satisfy the licensing requirements of the state. He did not do that in this instance. For that failing, he was properly prosecuted and convicted of operating after suspension of his operating privileges under the ordinances of Fond du Lac County.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       We wholeheartedly endorse that opinion, and much of what we say in this opinion is taken verbatim from the opinion of our colleague, Judge Richard S. Brown, in that case.

       These arguments include the following: (1) the circuit court was required to suspend the proceedings because Derksen said he would take an interlocutory appeal; (2) the circuit court attempted to trick Derksen into admitting the offense; (3) the circuit court tricked Derksen "out of his God given rights by some type of contract or forced testimony implying consent, without full disclosure of the terms and conditions"; (4) the circuit court's assumption of jurisdiction forces Derksen into involuntary servitude; and (5) the rules of the road represent an improper extension of admiralty law so as to deprive the circuit court of subject matter jurisdiction.

       Therefore, we have reorganized Derksen's multiple issues into a more condensed, manageable and understandable structure — an exercise also performed by the supreme court in State v. Waste Management, Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) ("Here appellant raises twenty-nine challenges to a judgment of conviction. However, we find the challenges to fit into five categories and will discuss each category.").


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. James N. Storlie, Defendant-Appellant.
    Court of Appeals

      No. 01-3376-CR.

      Submitted on briefs May 6, 2002.

    Decided May 29, 2002.

    2002 WI App 163
    (Also reported in 647 N.W.2d 926.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, assistant state public defender.
    On behalf of the plaintiff-respondent,the cause was submitted on the brief of James E. Doyle, attorney general, and James M. Freimuth, assistant attorney general.

      Before Cane, C.J., Hoover, EJ., and Peterson, J.
   CANE, C.J.

¶ 1. James Storlie was convicted of fleeing a police officer and operating a motor vehicle while intoxicated, fifth offense. His motion for postcon-viction relief was denied. Storlie challenges that part of the judgment and order that requires him to reimburse the police department's expenses incurred in replacing "stop sticks" used to halt his vehicle during the commission of the offenses. We conclude that restitution allowed under Wis. Stat. § 973.20 does not include reimbursement for collateral expenses incurred in the normal course of law enforcement. Therefore, we reverse the restitution ordered.

BACKGROUND

¶ 2. For purposes of this appeal, the underlying facts are undisputed. In November 2000, while on routine patrol, a Wisconsin state trooper observed a vehicle swerving in the northbound lane of State Highway 124. After seeing the vehicle nearly collide with a concrete median barrier, the trooper activated his emergency lights and siren. The vehicle continued swerving and then entered the ditch on the right side of the highway. It continued at approximately thirty miles per hour, proceeded out of the ditch and struck a traffic sign. After it stopped on the left shoulder of the road, it then drove off with the trooper in pursuit. The Chippewa Falls Police Department deployed stop sticks. After the vehicle drove over them, the officers managed to stop the vehicle. The driver, later identified as Storlie, was arrested.

¶ 3. Storlie entered guilty pleas to fleeing an officer and operating while intoxicated, fifth offense. As part of his sentence, the court ordered Storlie to pay restitution pursuant to Wis. Stat. § 973.20 to the police department in the amount of $123 to replace the stop sticks it used to halt his vehicle.

¶ 4. Storlie brought a postconviction motion to have the $123 restitution order vacated. The court found that the stop sticks "were used to slow down or stop the defendant['s]" car. The court observed that expenses incurred in apprehending people do not necessarily make a police department a victim. The court reasoned, nonetheless, that the sticks were deliberately damaged during the course of the crimes and denied Storlie's motion.

DISCUSSION

¶ 5. Storlie argues that the circuit court erroneously ordered restitution to the police department for the cost of the stop sticks. It is undisputed that Storlie's criminal conduct caused damage to the police department's stop sticks. Nonetheless, Storlie argues the police department was not a direct victim of the crime within the meaning of Wis. Stat. § 973.20 because the expense of replacing the stop sticks was incurred as a cost of normal law enforcement procedure. We agree.

¶ 6. The circuit court's authority to order restitution is governed by Wis. Stat. § 973.20. Whether the circuit court had authority, to order restitution under a particular set of facts is a question of law we review independently of the trial court, while benefiting from its analysis. State v. Holmgren, 229 Wis. 2d 358, 366, 599 N.W.2d 876 (Ct. App. 1999).

¶ 7. The State relies on the following provisions of Wis. Stat. § 973Í20:

Restitution. . ..
(lr) When imposing sentence or ordering probation for any crime for which the defendant was convicted, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing or, if the victim is deceased, to his or her estate, unless the court finds substantial reason not to do so and states the reason on the record. ...
(2) If a crime considered at sentencing resulted in damage to or loss or destruction of property, the restitution order may require that the defendant:
(b) If return of the property under par. (a) is impossible, impractical or inadequate, pay the owner or owner's designee the reasonable repair or replacement cost....
(5) In any case, the restitution order may require that the defendant do one or more of the following:
(a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.

¶ 8. We construe Wis. Stat. § 973.20 broadly to allow victims to recover their losses as a result of a defendant's criminal conduct. State v. Anderson, 215 Wis. 2d 673, 682, 573 N.W.2d 872 (Ct. App. 1997). The statute reflects a strong equitable policy that victims should not have to bear the burden of losses if the defendant is capable of making restitution. State v. Kennedy, 190 Wis. 2d 252, 258, 528 N.W.2d 9 (Ct. App. 1994). A governmental entity can, in appropriate circumstances, be a victim entitled to restitution. State v. Ortiz, 2001 WI App 215, ¶ 20, 247 Wis. 2d 836, 634 N.W.2d 860.

¶ 9. For example, in State v. Howard-Hastings, 218 Wis. 2d 152, 156-59, 579 N.W.2d 290 (Ct. App. 1998), we determined that the United States government was a victim within the meaning of Wis. Stat. § 973.20, entitled to restitution for vandalism caused to Project ELF, a low-frequency radio wave generator used to communicate with nuclear submarines. In contrast, in State v. Evans, 181 Wis. 2d 978, 983-84, 512 N.W.2d 259 (Ct. App. 1994), we concluded that the Madison Metro Narcotics Unit was not a victim under § 973.20 entitled to restitution of "buy money"— funds used by police to purchase the drugs leading to defendant's conviction.

¶ 10. In a similar vein, in Ortiz, we concluded that the City of Racine was not a victim entitled to restitution under Wis. Stat. § 973.20(1) for overtime costs incurred by the city's police department, SWAT team and negotiating team following a police standoff and resulting in the apprehension of the defendant. He was later convicted of four counts: failure to comply with an officer's attempt to take a person into custody by remaining in a building while armed with a dangerous weapon; obstructing an officer while armed; disorderly conduct while armed; and threatening to injure another while armed. Id. at ¶ 6. Ortiz held that the city was not directly damaged and "cannot recoup its collateral expenses in apprehending Ortiz." Id. at ¶ 23. These cases support the notion that the government is entitled to restitution for losses incurred when it is a victim as a direct result of criminal conduct, but not for collateral expenses incurred in the normal course of law enforcement

¶ 11. Under the facts presented, we are satisfied that the police department is not a victim within the meaning of Wis. Stat. § 973.20 and therefore is not entitled to restitution for destruction of the stop sticks. There is no dispute that the officers deployed the sticks with the purpose that Storlie's vehicle would run over them and that he would be apprehended. The cost of the sticks was an expenditure incurred in the apprehension of a criminal suspect. Accordingly, their destruction was similar to the cost of the overtime for the SWAT team in Ortiz and the "buy money" in Evans — expenses incurred for tools used in the apprehension of criminal suspects. Therefore, as a normal cost of law enforcement, the expense of the stop sticks did not cause the police department to be a "victim" under § 973.20.

¶ 12. The State contends that the trial court properly ordered restitution for the stop sticks. It relies on dictum in Ortiz that Ortiz "fortunately did not cause any damage, loss or harm to the law enforcement personnel. Were it otherwise, those persons would be direct or actual victims" and have valid restitution claims. Id. at ¶ 23. We are not persuaded that the quoted dictum applies. Here, the expense incurred was not so much a direct result of the offense itself as much as it was the result of the officers' successful attempt at apprehension. Thus, Storlie's crime was not directed at law enforcement personnel or government property, in the way that the vandalism was directed at the ELF project in Howard-Hastings.

¶ 13. The State also compares the use of stop sticks to a case in Oregon, State v. Dillon, 637 P.2d 602, 604 (Or. 1981) where, after a high speed chase, officers attempted to apprehend a suspect by "boxing in" his car. Instead of surrendering, the suspect backed his car into a patrol car, damaging it. Id. He was later convicted of multiple crimes related to the incident. Among other items of damage, he was ordered to pay the county for damage to the patrol car. Id. The Oregon Supreme Court concluded that the county was a direct victim by virtue of the damage caused by the defendant's criminal conduct. Id. at 605, 608.

¶ 14. We conclude that Dillon may be distinguished on its facts. While a patrol car is a tool of law enforcement, it is not deployed for the purpose that it be run over and destroyed, like stop sticks. Instead, the damage to the patrol car was the result of activity comparable to the vandalism to the ELF Project in Howard-Hastings.

CONCLUSION

¶ 15. It is undisputed that the stop sticks were deployed in the normal course of law enforcement, resulting in their destruction. Under the facts presented, we are satisfied that the police department is not a victim within the meaning of Wis. Stat. § 973.20, entitled to restitution for destruction of the stop sticks. Consequently, the restitution ordered must be reversed. On remand, the court is directed to vacate the' portion of the judgment and postconviction order that requires restitution of $123.

By the Court. — Judgments and order reversed in. part and cause remanded with directions.


author: VERGERONT, EJ.

text:
    In re the Marriage of: Patricia A. Finley, Petitioner-Respondent-Cross-Appellant, v. James J. Finley, Respondent-Appellant-Cross-Respondent.
    Court of Appeals

      No. 01-1705.

      Submitted on briefs February 12, 2002.

    Decided May 30, 2002.

    2002 WI App 144
    (Also reported in 648 N.W.2d 536.)

      On behalf of the respondent-appellant-cross-respondent, the cause was submitted on the briefs of John H. Short of Vance, Wilcox, Short & Short, S.C., Fort Atkinson.

      On behalf of the petitioner-respondent-cross-appellant, the cause was submitted on the briefs of J. Paul Neumeier, Jr. and Raymond E. Krek of Krek & Associates, S.C., Jefferson.
    Before Vergeront, EJ., Roggensack and Lundsten, JJ.
   VERGERONT, EJ.

¶ 1. James Finley appeals the judgment of divorce from Fatricia Finley challenging the award of maintenance to Fatricia, certain restrictions on the electrical work he may do outside of his full-time job, and certain aspects of the property division. Fatricia cross-appeals contending that the circuit court erroneously exercised its discretion in not imputing to James income from moonlighting work based on his past moonlighting, and erred in several other rulings in setting maintenance, in dividing the property, and in setting child support.

¶ 2. We conclude the court properly exercised its discretion in deciding not to impute income to James based on his past moonlighting work and in awarding Patricia $50 a month in maintenance. However, we are unable to determine whether the court properly exercised its discretion in ordering that James pay 50% of bis net profits from moonlighting to Patricia as maintenance and in restricting the moonlighting work James may do for free. With respect to the other challenges on the appeal and cross-appeal, we conclude the court committed no errors of law and properly exercised its discretion. We therefore affirm in part, reverse in part, and remand.

BACKGROUND

¶ 3. James and Patricia were married on March 31, 1978, and were fifty-five and forty-six, respectively, at the time of the divorce hearing. They had three children, who at the time of the divorce hearing were twenty-one, eighteen, and fifteen. The fifteen-year-old child was living with Patricia, and the parties stipulated to joint legal custody and primary placement with Patricia.

¶ 4. When they married, both Patricia and James had high school diplomas; Patricia had also completed three years of nursing school, receiving a registered nurse diploma. Patricia worked steadily during the marriage at Watertown Memorial Hospital, her hours and assignments varying over the years. The court found that at the time of the divorce, she was working in the surgery unit, three eight-hour days per week and an additional sixteen hours per week on call. Her pay was $20.61 per hour for the hours she worked, plus an additional $1.75 per hour for being on call even if she did not go into work. The court found her income to be $35,000 per year. James is a journeyman electrician and earns $19 per hour at Wilke Electric. In addition, he had a long history of doing electrical work on the side, mostly for cash. The parties stipulated that James had averaged 624 hours per year in moonlighting work. The court found that some of that work was on the parties' residence. James testified that at the time of the divorce he was not doing any moonlighting. The court found his income from his employment at Wilke Electric to be $45,018 in 1999, and found there was no reason to expect his income to decrease in 2000 or 2001. To that figure, the court added $500, finding that James earned that additional amount per year selling scrap copper wire.

¶ 5. The issues of maintenance, child support, and certain aspects of the property division were tried to the court. In determining James's income for purposes of maintenance and child support, the court did not impute income to James for moonlighting. The court ordered James to pay 17% of $45,518 in child support, rejecting Patricia's argument that he should pay more because he spent very little time with their minor child.

¶ 6. In determining Patricia's income for the purpose of maintenance, the court used her current earnings, finding that they reflected her earning capacity. With respect to Patricia's expenses, the court found certain ones to be excessive. It also eliminated monthly payments on a lease for a new car for their middle son, finding that Patricia unilaterally made that decision and their son already had the use of a car that was adequate. The court did not include in her budget college savings for the two younger sons. The court ordered James to pay Patricia $50 per month in maintenance.

¶ 7. With respect to any future moonlighting James did, the court ordered James to pay on a semiannual basis 50% of the net profits to Patricia as maintenance. It imposed detailed recording and reporting requests and also prohibited James from doing any moonlighting work for free other than for his parents, siblings, spouse, and children, and only then on property owned by that family member. The judgment provided that if the court obtained information that James did any moonlighting work or received any form of compensation for moonlighting work which was not reported as required, the court would request the district attorney's office to initiate prosecution for criminal contempt.

¶ 8. The court awarded an equal division of the marital estate, with each party receiving approximately $170,935.50 worth of property; this required an equalizing payment from James of $13,582.50. The court rejected James's contention that his equitable IRA account should be excluded from the property division as inherited property; it also rejected Patricia's requests that she receive a credit for post-separation contributions to her retirement account and that the car lease obligation be divided.

DISCUSSION

¶ 9. The division of the marital estate, the decision whether to award maintenance, and, if so, how much, and the amount of child support are all committed to the circuit court's discretion. Hokin v. Hokin, 231 Wis. 2d 184, 190, 605 N.W.2d 219 (Ct. App. 1999). We affirm a circuit court's discretionary decision if the court applies the correct legal standard to the facts of record and in a reasoned manner reaches a rational result. Id. We accept all findings of fact made by the circuit court unless they are clearly erroneous. Wis. Stat. § 805.17(2) (1999-2000).

I. Maintenance

¶ 10. In deciding whether to award maintenance, and, if so, for how long and in what amount, the court is to consider the factors in Wis. Stat. § 767.26, which are designed to further two objectives: support and fairness. Hokin, 231 Wis. 2d at 200-01. The former ensures the spouse is supported in accordance with the needs and earning capacities of the parties; the latter ensures a fair and equitable arrangement between the parties in each individual case. Id.

¶ 11. James contends the circuit court erroneously exercised its discretion in awarding maintenance because: (1) it used Patricia's actual earnings rather than what she could earn if she worked full time; (2) it based the award of $50 a month solely on the disparity in the parties' incomes; (3) it provided no rationale for splitting his net profits from moonlighting 50/50; and (4) the effect of the order on future moonlighting is to prescribe how he may use his free time. Patricia, on the cross-appeal, contends the court erroneously exercised its discretion by: (1) not imputing moonlighting income to James; (2) not including in her budget the lease payment for the new car for their middle son; (3) not including in her budget college savings for their two younger sons; and (4) not ordering maintenance retroactive to the date of the temporary order. We address related issues together, rather than separating them by appeal and cross-appeal.

James's and Patricia's Earning Capacities

¶ 12. Each party argues that the court should impute income to the other because the other is not working at earning capacity. The court may consider a party's earning capacity rather than actual earnings when determining a party's obligation for maintenance and child support, Sellers v. Sellers, 201 Wis. 2d 578, 587, 549 N.W.2d 481 (Ct. App. 1996); and the earning capacity of the party seeking maintenance is a factor to consider in awarding maintenance, Wis. Stat. § 767.26(5).

¶ 13. We conclude the circuit court properly exercised its discretion in basing maintenance on Patricia's actual earnings, rather than what she could earn if she worked forty hours every week. The court determined that she was not shirking and was working at her earning capacity. The court found she was working an amount consistent with what she had done in the past, and it credited her testimony that she felt this was all she could handle. Patricia testified that she did not believe she could work more hours given her responsibilities at home, the stress of working in the surgery unit, and her depression, for which she was taking medication. The court's decision on this point was supported by the record and was reasonable.

¶ 14. Similarly, we conclude the circuit court properly exercised its discretion in not imputing income to James for moonlighting work. James testified that he was no longer doing moonlighting at the time of the divorce, giving as reasons that he had more domestic chores to do since he was living by himself and he was visiting a sister who was ill. He also indicated he did not want to have to share moonlighting income, but said even if he did not have to share it, he did not know if he would do it any more. The court carefully considered Patricia's arguments that it should impute moonlighting income to James, and it gave a number of reasons for its decision not to do so: James's age of fifty-five; his testimony that he was beginning to feel the physical effects of his age; the physical requirements of his regular job; the forty-five hours per week he already worked; his new domestic tasks; Patricia's work week of less than forty hours a week; the substantial property division; the sufficiency of Patricia's income and James's regular income to meet their reasonable expenses; and the court's decision not to award James's equitable IRA to him as separate property. The court found that James was not shirking by working forty-five hours a week and was working at his earning capacity at his regular employment.

¶ 15. Patricia argues that the court's determination that James is not shirking is wrong because his testimony shows that he is not doing any more moonlighting because he does not want to have to pay any of that income to her. While the court noted that testimony, it also credited other reasons James gave for not moonlighting, and decided they were reasonable. See Sellers, 201 Wis. 2d at 587 (defining "shirking" as an employment decision that is both voluntary and unreasonable under the circumstances). The reasons for the court's decision not to impute income to James are supported by the evidence and are a logical basis for the court's decision.

Fixed Sum Maintenance to Patricia

¶ 16. We next consider James's contention that the court's decision to award $50 a month in maintenance was impermissibly based solely on the disparity between his income and Patricia's. We do not agree this was the sole basis.

¶ 17. The court analyzed many of the statutory maintenance factors in the context of its discussion on property division: the court considered this a long-term marriage; it made findings on the parties' ages and incomes; it found that Patricia had symptoms of depression that were now controlled by medication, and she had been able to and was still working as a nurse; it found that James complained of soreness in his hands and shoulders, but this did not at this point restrict his employment; it found neither party contributed to the education or increased earning capacity of the other; and it found that each had contributed fully to the marriage — Patricia as the primary child-care provider and James as the primary breadwinner. The court then began its discussion of maintenance by stating:

Just as the property division factors weighed in favor of a 50/50 property division, the maintenance factors also weigh in favor of maintenance. However, at this point the Court needs to compare the monthly disposable incomes of the parties to their budgets to see whether at this point either party is really in a position, to need or to pay maintenance.

In order to determine the needs of each party, the court then analyzed the budgets of each, making adjustments when it considered items unreasonable. Finally, it considered the child support that James would be paying Patricia. Without maintenance, the court found that Patricia and the minor child would have $2,840 a month in disposable income, and James would have $2,074; by ordering $50 a month in maintenance, the court increased Patricia's monthly disposable income, for herself and one child, to $2,879, leaving James with $2,042 monthly disposable income for himself.

¶ 18. We conclude the court's decision to award $50 in maintenance reflects an application of the appropriate statutory factors and the objectives of maintenance to the facts of this case.

James's Future Moonlighting

¶ 19. Although the court did not impute any moonlighting income to Jámes and did not require that he work in addition to his job at Wilke Electric, the court ordered him to pay 50% of the net profits of all income he earned from moonlighting to Patricia on a semi-annual basis as maintenance. James objects on the ground that the court did not explain its rationale for that decision. The court did refer to a desire to equalize the parties' income, given the length of the marriage, but did not otherwise explain the 50/50 split of the moonlighting income. As James points out, and Patricia implicitly acknowledges, although an equal division of income is a starting point when considering maintenance in a long-term marriage, the circuit court must proceed from there to analyze the statutory factors. Kennedy v. Kennedy, 145 Wis. 2d 219, 222-23, 426 N.W.2d 85 (Ct. App. 1988). When the circuit court does not explain its reason for a discretionary decision, we may search the record to determine whether it supports a circuit court's decision, Randall v. Randall, 2000 WI App 98, ¶ 7, 235 Wis. 2d 1, 612 N.W.2d 737; and we do so here.

¶ 20. Patricia suggests the court implicitly decided that she needed additional income. However, we have difficulty in reconciling such a decision with the court's decision that it was not necessary that James work beyond his regular job in order to meet Patricia's needs. Moreover, since the amount of the moonlighting income is not known, we cannot assume that the court decided that Patricia needed any particular amount of additional income. It may be the court decided that sharing in James's moonlighting income would permit Patricia to continue to save for college for the two younger sons, but we are hesitant to assume this with no indication this is what the court had in mind. First, the amount and duration of savings would be important for a proper exercise of discretion, and the court made no findings on either. Second, this basis for maintenance has implications for future decisions on maintenance when there is no need for college savings, and therefore it is important that it be clearly defined by the circuit court.

¶ 21. We have also tried to discern whether the court decided that fairness required that James share his moonlighting income 50/50. Although the court may have done so, we are unable to identify the reason for such a decision with any confidence. For example, the court's application of the statutory factors does not suggest to us a reason for a 50/50 split of any moonlighting income.

¶ 22. Finally, Patricia suggests that the court's order was based on James's history of keeping the amount of his moonlighting income a secret from Patricia during the marriage. However, the connection between that conduct of James and the objectives of maintenance is not readily apparent to us, and we therefore decline to assume that is the basis for the court's decision without some reasoned explanation by the court.

¶ 23. In short, while the award of $50 per month was based on factors other than a disparity in income— because of the court's analysis of the reasonable budget of each, the employment income of each, and the child support — we are unable to identify how the court arrived at the decision to order a 50/50 split of James's net profits from moonlighting, particularly given its reasons for not imputing income to James based on his past moonlighting. We therefore conclude we must reverse the judgment as it relates to maintenance based on James's future moonlighting income and remand for further proceedings.

¶ 24. James's objection to the prohibition on moonlighting for free except for specified family members may remain an issue after remand. We therefore choose to address this issue. James asserts the court has no authority to determine how he spends his free time, and that this provision prevents him from donating his skills to charity and doing favors for friends and relatives who are not among the specified family members.

¶ 25. In a divorce proceeding the circuit court has only that authority given it by statute. Zawistowski v. Zawistowski, 2002 WI App 86, ¶ 16, 253 Wis. 2d 630, 644 N.W.2d 252. The circuit court has the authority under Wis. Stat. § 767.26 to enter "an order requiring maintenance payments to either party for a limited or indefinite length of time" after considering the statutory factors and the objectives of support and fairness. Although a maintenance award is usually in a fixed sum, it may be represented as a percentage of income in "unusual circumstances," such as when there is uncertainty on the amount of income the payer will receive, or when the court finds a payer may manipulate his or her income. Hefty v. Hefty, 172 Wis. 2d 124, 132, 493 N.W.2d 33 (1992).

¶ 26. We conclude the court's authority to order maintenance encompasses the authority to impose obligations on the payee to ensure compliance with the payment order if those obligations are reasonably necessary to effect compliance with the payment order. The imposition of such nonpayment obligations is, like the decision on maintenance itself, committed to the circuit court's discretion. Therefore, in order to affirm as a proper exercise of discretion, a reviewing court must he able to discern the reason the circuit court decided that the nonpayment obligation was reasonably necessary to ensure compliance with the payment order, and there must be support for that reasoning in the record.

¶ 27. We understand from the circuit court's comments that it imposed the restrictions on moonlighting for free because of evidence that during the marriage James had not revealed to Patricia the amount he had earned moonlighting. The court apparently credited Patricia's concern that James would continue to moonlight but would not disclose it. However, we have difficulty seeing how the restriction on free moonlighting is reasonably necessary to ensure that James fulfills his obligation to pay Patricia 50% of the net profits of his moonlighting income, particularly in view of the reporting and recording requirements the court imposed and the availability of remedial and punitive sanctions for James's failure to comply with those terms. See Wis. Stat. §§ 767.305 and 785.03(1). We therefore conclude we must reverse this provision and remand for further proceedings.

Patricia's Budget

¶ 28. Patricia contends the circuit court erroneously exercised its discretion when it excluded from her budget the lease payments for the 1999 Ford Escort for the parties' middle son, and did not consider a college fund for the younger two sons in setting maintenance. We conclude the circuit court properly exercised its discretion on both points.

¶ 29. The evidence with respect to the 1999 Ford Escort was that a few months before Patricia initiated this action, she signed a thirty-six-month lease for the vehicle, new at the time, with the intent that Shaun, then just beginning his senior year in high school, would use the car that year and then take it to college with him. The sticker price on the car was $18,000 and the monthly lease payments were $300. Patricia and James already had a third car, a 1991 Ford Tempo. James testified he did not sign the lease because he did not agree they should acquire a new car; he told Patricia they did not need a new car and could not afford one. He felt the Tempo was adequate for Shaun's use. The court found that the purchase of the new car was unnecessary and was a unilateral decision by Patricia. This is supported by the evidence and is a logical basis for excluding this expense when deciding on a reasonable budget for Patricia.

¶ 30. With respect to money for a college fund, Patricia testified that because her sons had the potential for college, she had begun saving for college. She testified there had been $10,600 in a joint savings account intended for college for the middle son, but, because of withdrawals ordered during the divorce proceedings for other expenses, the balance was reduced to $5,321. Patricia argues on appeal, as she did in the circuit court, that savings for her sons' college education was part of her pre-divorce standard of living, and the court has the authority to take this into account in setting maintenance. Patricia relies on Hubert v. Hubert, 159 Wis. 2d 803, 820, 465 N.W.2d 252 (Ct. App. 1990), in which we held that the circuit court erred in failing to consider the parties' savings and investment program as part of the pre-divorce standard of living for purposes of determining a reasonable budget for the spouse receiving maintenance. However, we also acknowledged in Hubert that it was "not the usual case" because of the very high income of the payer, which appeared to make it feasible to pay a level of maintenance that would maintain the payee spouse at the pre-divorce standard. See id. at 818, 820-21.

¶ 31. The circuit court here discussed Hubert, correctly reciting that case's reasoning and holding. However, the court decided against including savings for college in Patricia's budget because it found that the parties had not agreed to establish or maintain a college account, and there was not sufficient income to fund such an account. The court correctly applied the law to the facts of this case in a reasoned manner.

Retroactivity

¶ 32. Patricia's final challenge on maintenance is to the court's ruling not to make maintenance retroactive to the date of the temporary orders. The family court commissioner had denied her request for temporary maintenance and had set child support based solely on James's income from Wilke Electric. Patricia requested de novo review by the circuit court, but that had not occurred by the time of trial. Her minimal argument in her post-trial brief was that her case at trial

focused on evidence and arguments that James should be required to pay maintenance and child support calculated on both his Wilke Electric income and his sideline earning job capacity. If the court makes such a prospective award, Patricia urges the court to make that ruling retroactive to [the date of the temporary orders].

Patricia cited "reasons of fairness," without further elaboration as the basis for a retroactive application. The court, in its written decision after trial, stated that it was declining to make any changes in the temporary orders, and that its orders regarding maintenance and child support were prospective. On appeal, Patricia argues that the court did not give any reason for this decision and thus erroneously exercised its discretion.

¶ 33. Patricia's argument on appeal is too undeveloped to persuade us that the court erroneously exercised its discretion. As we read her argument in her post-trial brief, her primary concern was that orders based on imputing income to James from moonlighting be made retroactive. However, the court did not impute moonlighting income to James, and ordered only $50 per month in maintenance. Nothing in the argument she made in the circuit court or makes in this court explains why it is unreasonable or unfair for the court to order James to pay $50 per month prospectively only.

Summary

¶ 34. In summary, we affirm the judgment insofar as it ordered that James pay Patricia $50 per month in maintenance, and we reverse paragraph 21 of the judgment of divorce, which relates to James's moonlighting income. On remand the court shall consider whether to order James to pay any particular amount or any particular percentage of his moonlighting income to Patricia as maintenance, and shall articulate the reasons for that decision in light of this opinion. The court shall also consider the prohibition on free work in light of this opinion and shall articulate its reasons for that prohibition should it decide to retain it.

II. Property Division

¶ 35. The only property that remains individual property and not subject to division is property acquired before or during the marriage by gift or inheritance, or acquired with funds from either. Wis. Stat. § 767.255(2)(a). All other property is part of the marital estate, and the court is to presume that it is to be divided equally, although the court may alter the distribution after considering various factors. Wis. Stat. § 767.255(3); Hokin, 231 Wis. 2d at 191-92.

¶ 36. James contends: (1) the circuit court erred in including his equitable IRA in the marital estate because that was purchased with inherited funds, and (2) the court erroneously exercised its discretion in not awarding James more than 50% of the property since inherited funds were the source of some of the marital property. Patricia contends the court erroneously exercised its discretion by: (1) not crediting her for voluntary contributions she made to her 403(b) plan during the pendency of the divorce, and (2) not including the 1999 Ford Escort lease payment as a marital debt.

James's IRA

¶ 37. When James's mother died, he received one-third of her estate, the major asset of which was a land contract. He received payments of approximately $100 per month between 1983 and 1988, and a balloon payment of $20,000 in March 1988. Most of the $20,000 went to pay marital debts and invest in marital assets, but James gave Patricia $8,000 so that she could set up an IRA for each of them in the amount of $4,000. She did that through their joint checking account. At the date of trial, each IRA had a gross value of $24,600 less a stipulated 20% discount for anticipated taxes. The parties agreed that Patricia's IRA should be included in the marital estate. The court determined that although the source of James's IRA was inherited property, "it was transmuted and became part of the marital estate as it went through the joint checking account."

¶ 38. If gifted or inherited property looses either its identity or its character, it becomes subject to division as part of the marital estate. Friebel v. Friebel, 181 Wis. 2d 285, 298, 510 N.W.2d 767 (Ct. App. 1993). Character, which is what is at issue in this case, addresses the manner in which the parties have chosen to title or treat gifted or inherited property. Id. The character of property that is exempt as gifted or inherited property may be "transmuted" to divisible property when the owning spouse transfers that property into joint tenancy or uses it to purchase property for the mutual enjoyment and use of the marriage. Id. The issue underlying transmutation is whether the owning spouse had a donative intent. Trattles v. Trattles, 126 Wis. 2d 219, 224, 376 N.W.2d 379 (Ct. App. 1985). Depositing gifted funds into a joint bank account owned by both parties creates a presumption of donative intent subject to rebuttal by sufficient countervailing evidence. See id.

¶ 39. The party claiming an exemption must first establish the gifted or inherited status of the property; then the burden is on the other party to prove that the property has lost its exempt status. Brandt v. Brandt, 145 Wis. 2d 394, 408-09, 427 N.W.2d 126 (Ct. App. 1988). In this case, it is undisputed that the $8,000 was inherited property. The burden is therefore on Patricia to establish that, through his donative intent, James transmuted both the $4,000 for his IRA and the $4,000 for her IRA into divisible property.

¶ 40. James argues that Patricia did not prove James's donative intent because the evidence shows that the funds for that purchase were only temporarily deposited in the joint account and that he instructed her to buy an IRA in his name.

¶ 41. Patricia testified that the $8,000 was deposited in the joint checking account with James's knowledge, and that the other payments he had received from the land contract had also been deposited in the joint checking account and used for household expenses. After explaining that some of the $20,000 was used to pay off a lawn tractor and for the sewer hookup for their home, James testified with respect to the $8,000 used for the IRAs:

A: .... And the $8,000 here, I suggested that we get a financial person who I know — who I knew, and I made the suggestion that we should put it into a couple IRA's [sic]; $4,000 in each IRA.
A: Well, I got the check from my mother and I told her[, Patricia,] to put it into the finances because she — my wife was in charge of the finances. And I told her to take the money and put it into the IRA's [sic] for financial —
Q: What was that?
A: — for financial reasons, so we could make some money on some of the money that my mother gave me; that we didn't have to spend it all.

¶ 42. Following Trattles, we conclude that the deposit of the $8,000 in the joint account with James's knowledge creates a rebuttable presumption that he intended the inherited funds be used for family or marital purposes. We reject James's contention that, because the funds remained in the joint account only a short time before the purchase of the IRAs, no presumption arises. No case law supports that proposition. The length of time inherited funds remain in a joint account and their subsequent disposition are properly considered as part of the inquiry into whether the presumption of donative intent is rebutted by other evidence.

¶ 43. Turning to that inquiry, we first observe that the circuit court did not discuss whether other evidence rebutted the presumption. We interpret this as an implicit conclusion that no evidence did, and we reach the same conclusion. James's suggestions to Patricia that "we get" a financial person to advise and "we should put it into a couple of IRA's ... so we could make some money" (emphasis added) support rather than rebut the presumption of donative intent arising from deposit into the joint account. Since there is no evidence that rebuts the presumption of donative intent arising from the deposit in the joint account, we conclude the circuit court was correct in deciding that Patricia had established transmutation of the entire $8,000.

¶ 44. Even if his IRA is marital property, James argues, the circuit court should have awarded him a greater share of the property in recognition of the inherited funds that were transmuted into marital property. The circuit court considered this request and rejected it. The court acknowledged that it had the authority to deviate from a 50/50 property division in James's favor because the source of some of the marital property was his inheritance. However, it concluded that was not appropriate in this case because this was a long marriage, and, given Patricia's contributions to the marriage, she would not be receiving a "windfall" if James's IRA was treated as marital property. The court also considered the relationship between the property division and the maintenance award, see Wis. Stat. § 767.255(3)(i), and concluded that its decision not to impute income to James based on his past moonlighting work and to award only $50 in maintenance to Patricia counseled against a deviation from the 50/50 presumption based on the inherited source of James's IRA. Then, concluding no other statutory factor warranted a deviation from that presumption, the court divided the marital property 50/50.

¶ 45. The circuit court applied the correct law to the facts of record and gave a logical and thoughtful explanation for not deviating from the presumed 50/50 division because of James's inherited property. This is a reasonable result and we see no basis for disturbing it.

Patricia's Post-Separation Pension Contributions and the Vehicle Lease

¶ 46. Patricia contends she should receive a credit of $1,065 for contributions she made to her 403(b) retirement plan during the pendency of the divorce. Patricia was required by a temporary order to continue her voluntary monthly payments to the retirement plan. Although she sought relief from that order and a de novo review, the order remained in effect up to the time of trial for reasons not relevant to this opinion. Patricia argued to the circuit court that she should receive credit because that obligation contributed to a shortfall, as a result of which she had to use part of the college savings to pay on the home-equity loan and the property taxes. She also argued that it would be a windfall to James to receive half of these post-separation payments.

¶ 47. The circuit court rejected her request, reasoning that if Patricia had not contributed to her retirement plan during the divorce, the savings she would not have had to dip into would be part of the marital estate. Since those savings were spent on marital debts with the approval of the family court commissioner, and since the effect of her contributions to her retirement plan was that the money was in that plan rather than in the marital savings account, the court concluded that the contributions to her retirement plan should be treated as marital property, just as all the pensions were treated.

¶ 48. Generally, assets are valued and divided on the date of divorce. See Overson v. Overson, 125 Wis. 2d 13, 21, 370 N.W.2d 796 (Ct. App. 1985). In this case, the value of James's retirement accounts, as well as Patricia's, included payments made pending the divorce proceedings, and the entire value of his accounts on the date of divorce was treated as marital property. The circuit court's explanation for not treating Patricia's post-separation contributions differently is supported by the record and is rational.

¶ 49. Patricia also contends the circuit court erroneously exercised its discretion in not treating the 1999 Ford Escort lease as a marital debt. As we have already explained, the record supports the court's decision that this was an unnecessary debt incurred by Patricia without James's agreement. We are satisfied that the court's decision not to require James to pay one-half of this debt is a proper exercise of discretion.

III. Child Support

¶ 50. In setting child support, the court is to apply the percentage standards established in Wis. Admin. Code ch. DWD 40 unless the court determines, after consideration of certain statutory factors, that use of the percentage standard is unfair to the child or to either party. Wis. Stat. §§ 767.25(lj) and 767.25(lm); Randall, 2000 WT App 98 at ¶¶ 8-9. Wisconsin Admin. Code § DWD 40.03(1) provides that for one child, support is 17% of the payer's gross income and income imputed from assets. Section DWD 40.03(3) provides:

In situations where the income of the parent obligated to pay child support in accordance with the standard under sub. (1) is less than that parent's earning capacity ... the court may establish support by applying the percentage standard to:
(a) An amount determined by the court to represent the payer's ability to earn, based on the payer's education, training and work experience, and the availability of work in or near the payer's community; or
(b) The income a person would earn by working 40 hours per week for the federal minimum hourly wage under 29 U.S.C. 206(a)(1).

¶ 51. For reasons similar to those she made in the context of maintenance, Patricia contends the circuit court erroneously exercised its discretion in not imputing income from moonlighting to James for child support purposes because he is not working at his earning capacity and he is shirking. However, as we have already concluded, the court determined that neither was the case, and those determinations are supported by the record.

¶ 52. Patricia also argues that the percentage standard is unfair to the minor child and to her if based only on James's actual income, because during the marriage the child had the benefit of the moonlighting income and that is an appropriate factor for deviating upward from the percentage standard under Wis. Stat. § 767.25(lm)(c). Although the circuit court did not expressly address James's moonlighting in the context of § 767.25(lm)(c), we are satisfied from its thorough discussion of the issue of James's past moonlighting — as it affected both child support and maintenance — that the court decided it was not necessary to require James to continue moonlighting in order to adequately provide for the minor child. This decision is supported by the record and implicitly rejects the proposition that an upward deviation under § 767.25(lm)(c) is necessary to provide for the minor child at the pre-divorce standard of living.

¶ 53. Patricia's second proposed ground for an upward adjustment under Wis. Stat. § 767.25(lm) is that James spends much less time with the minor child than the percentage standards contemplate, and, thus, he is spending less money in addition to 17% of his gross income than that percentage assumes. Patricia contends the circuit court erroneously decided it did not have the authority to increase child support for this reason.

¶ 54. We do not agree with Patricia that the court believed that, as a matter of law, it could not increase child support because James spent very little time with the minor child. We grant the court's initial comments may be read in this way: the court observed that Wis. Admin. Code ch. DWD 40 provided for decreased support when the child spent time with the payer above a prescribed amount, see Wis. Admin. Code § DWD 40.04(2), but not for increased support when the child spent less than a prescribed amount. However, we are persuaded from a reading of all the court's comments that this was not the basis for the court's decision not to increase the percentage. The court continued in its discussion, stating that the record showed that in 2000, the minor child spent "only a handful of nights with his dad," and it acknowledged the logic of Patricia's argument of an increase for this reason. However, the court explained there was not a need for an upward adjustment because the court was going to be considering the disposable income of both parties in deciding on maintenance, and any increase in child support it ordered would reduce maintenance. Therefore, the court concluded, an upward adjustment in child support would not benefit Patricia and there was no reason to adjust the percentage standard. Patricia does not contend that this reasoning is an erroneous exercise of discretion, so we consider this issue no further.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       The parties' martial residence was for sale, and they had equity in it of $140,000, which was to be divided equally and was included in the property division.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 767.26 provides as follows:

        Maintenance payments. Upon every judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under s. 767.02 (l)(g) or (j), the court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time after considering:
      (1) The length of the marriage.
      (2) The age and physical and emotional health of the parties.
      (3) The division of property made under s. 767.255.
      (4) The educational level of each party at the time of marriage and at the time the action is commenced.
      (5) The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
      (6) The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.
      (7) The tax consequences to each party.
      (8) Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, where such repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.
      (9) The contribution by one party to the education, training or increased earning power of the other.
      (10) Such other factors as the court may in each individual case determine to be relevant.

       In support of this argument, James focuses on the court's comment that, "in the absence of child support the Court would he ordering indefinite maintenance sufficient to equalize the incomes of the parties," and the court's comment that, when child support ends the court "would likely grant [an increase in maintenance if Patricia seeks that]... to equalize the incomes of the parties consistent with LaRocque v. LaRocque[, 139 Wis. 2d 23, 406 N.W.2d 736 (1987)]. However that will again depend on the facts presented at that time." We consider it more relevant to analyze what the court actually did, rather than focus on comments indicating what it would have done in another situation or might do in the future.

       James asserts, in one sentence that appears in his argument on the prohibition against free moonlighting, that the court did not consider the tax consequences of the order that he pay 50% of his net profits to Patricia, and therefore she will receive more than 50% of the net after taxes. However, he does not develop this argument further. We therefore do not consider it.

       Property that is separate under Wis. Stat. § 767.255(2)(a) may be divided in a fair and equitable manner if the court finds that refusal to do so will create a hardship on the other party or the children. Section 767.255(2)(b).

       Wis. Stat. § 767.255(3) provides:
      (3) The court shall presume that all property not described in sub. (2)(a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:
      (a) The length of the marriage.
      (b) The property brought to the marriage by each party.
      (c) Whether one of the parties has substantial assets not subject to division by the court.
      (d) The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services.
      (e) The age and physical and emotional health of the parties.
      (f) The contribution by one party to the education, training or increased earning power of the other.
      (g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
      (h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.
      (i) The amount and duration of an order under s. 767.26 granting maintenance payments to either party, any order for periodic family support payments under s. 767.261 and whether the property division is in lieu of such payments.
      (j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
      (k) The tax consequences to each party

        (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.
      (m) Such other factors as the court may in each individual case determine to be relevant.

       Our decisions on the standard of review we are to apply to this inquiry do not appear to be consistent. As James points out, in Popp v. Popp, 146 Wis. 2d 778, 787, 432 N.W.2d 600 (Ct. App. 1988), when reviewing the question whether the character and identity of gifted property had been preserved, we stated that whether a party had met the burden of proof is a question of law, which we review de novo; we also said that a determination of character and identity were each questions of law, dependent on the underlying factual findings, and we reviewed those de novo. Id. at 787-88. In Popp, we distinguished our statement in Brandt v. Brandt, 145 Wis. 2d 394, 407, 427 N.W.2d 126 (Ct. App. 1988), that "a tracing or commingling determination [when identity is in issue]... presents] a question of fact"; we explained that in Brandt we meant the historical facts, not the legal conclusion of identity resulting from those historical facts. Popp, 146 Wis. 2d at 787 n.2. However, we subsequently stated that we must accept a circuit court's finding that gifted property lost its identity through commingling because it was not clearly erroneous. Fowler v. Fowler, 158 Wis. 2d 508, 518, 463 N.W.2d 370 (Ct. App. 1990). We used the clearly erroneous standard again in Weberg v. Weberg, 158 Wis. 2d 540, 552, 463 N.W.2d 382 (Ct. App. 1990), when reviewing a circuit court's "findings" that funds were not commingled. And in Zirngibl v. Zirngibl, 165 Wis. 2d 130, 136 n.1, 477 N.W.2d 637 (Ct. App. 1991), we treated the issue of intent, for purposes of character transmutation, as a factual issue. More recently, in Spindler v. Spindler, 207 Wis. 2d 327, 338, 558 N.W.2d 645 (Ct. App. 1996), we applied the burden of proof/question of law standard that we applied in Popp. Rather than attempt a reconciliation of these cases, we will assume without deciding that a de novo standard of review is the proper one; we do this because the standard of review would not affect the outcome in this case.

       Specifically, James asked the circuit court to award him his IRA without a balancing payment to Patricia, and that is the request the court considered.

       As the circuit court observed, in Schwartz v. Linders, 145 Wis. 2d 258, 263, 426 N.W.2d 97 (Ct. App. 1988), we held that a court has the authority under Wis. Stat. § 767.255 to consider the prior inherited status of divisible property; whether it results in an unequal division of the property, depends on the facts of each case. Id. By way of example, we stated that in a short marriage where one party would otherwise receive a windfall without having participated in the economic partnership of the marriage, the prior inherited status of divisible property may justify an unequal division. Id.

       WISCONSIN Stat. § 767.25(lm) provides:
      (lm) Upon request by a party, the court may modify the amount of child support payments determined under sub. (lj) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties:
      (a) The financial resources of the child.
      (b) The financial resources of both parents.
      (bj) Maintenance received by either party.
      (bp) The needs of each party in order to support himself or herself at a level equal to or greater than that established under 42 U.S.C. 9902 (2).
      (bz) The needs of any person, other than the child, whom either party is legally obligated to support.
      (c) If the parties were married, the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.
      (d) The desirability that the custodian remain in the home as a full-time parent.

        (e) The cost of day care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.
      (ej) The award of substantial periods of physical placement to both parents.
      (em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under s. 767.24.
      (f) The physical, mental and emotional health needs of the child, including any costs for health insurance as provided for under sub. (4m).
      (g) The child's educational needs.
      (h) The tax consequences to each party.
      (hm) The best interests of the child.
      (hs) The earning capacity of each parent, based on each parent's education, training and work experience and the availability of work in or near the parent's community.
      (i) Any other factors which the court in each case determines are relevant.

       WISCONSIN Admin. Code § DWD 40.03(1) refers to "imputed income for child support" and that is defined in Wis. Admin. Code § DWD 40.02(15) with reference to income from assets.