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JOINDER OF THIRD PARTIES - MARITAL PROPERTY
© 1997 National Legal Research Group, Inc.
WISCONSIN: In re Marriage of Zabel, ___ Wis. 2d ___, 565 N.W.2d 240 (Ct. App. 1997).
Joinder of the husband's mother in the parties' divorce action was proper under the statute on joinder of persons needed for a just and complete adjudication, where the wife claimed that real estate titled in the mother's name was marital property. The wife in this divorce case filed a third-party complaint alleging that realty titled in the mother's name was marital property. The wife alleged that the husband used marital assets to purchase the property, to pay for building and maintaining a home on the property, and to pay the taxes on the property. The wife sought to enjoin the mother from disposing of the proceeds of a pending sale of the property and to rescind the deed as a sham transaction, along with a fair and equitable share of the property's value. The mother appealed from an order denying her motion to dismiss the wife's third-party complaint.
Statutory Authority for Joinder. The mother claimed that the only remedy for the transfer of marital assets to a third party was an unequal property division or an independent action. The Wisconsin Court of Appeals agreed that a family court may consider the squandering of marital assets as a factor in the division of property. It went on to hold, however, that a family court has the additional power to hear equitable claims against third persons that affect the rights of the parties to the divorce, as Wisconsin courts have recognized in numerous cases. The power to hear equitable claims against third persons is consistent with the broad subject matter granted to family courts by statute and has survived the enactment of the state's no-fault divorce law, the court said.
The court decided that the mother's joinder was proper under the state statute specifying persons to be joined in civil actions if feasible. In the mother's absence, the court reasoned, a complete adjudication of the parties' marital property rights could not be accomplished in that the property in question the marital home constituted almost all of the property at issue in the divorce. Hence, the mother was a necessary party because of the limited marital estate if the house were not included.
The court took note of an article on the subject, William David Taylor III, Third-Party Practice in Divorce Cases, 26 Fam. L.Q. 5 (1992), which says that a majority of states permit joinder of third persons when the family court cannot fulfill its duty to distribute marital property equitably if prevented from determining the extent of the property by the absence of a third party claiming an interest in it. The article claims that 25 states allow third-party joinder, the court commented. See also Frank D. Wagner, Annotation, Propriety of Consideration of, and Disposition as to, Third Persons' Property Claims in Divorce Litgation, 63 A.L.R.3d 373 (1975 & Supp. 1996).
No Right to Jury Trial. The mother also claimed that the use of a family court action would deprive her of her right to a jury trial. The appeals court responded, however, that no constitutional right to a jury trial exists when equitable relief is requested. The claims contained and the relief requested in the third-party complaint were equitable in nature, so the mother had no right to a jury trial in this action, the court concluded.
Alternative Claim for Relief. The wife also sought compensation from the mother in the event the trial court were to find that the real estate was not a marital asset. Specifically, she sought compensation for her contribution in the form of labor to build the house. The court of appeals held, however, that the wife could not maintain that claim in the divorce action. That claim was not subject to adjudication as part of the divorce action, the court decided.
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