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Walker v. Walker3/19/1999
expectancy of an individual afflicted with the disease other than the ages of his two relatives who had died of the disease. He testified that there was no way to predict how long he might live or how long it would be until he needed 24-hour care.
Toni sought most of the family's liquid assets because John was guaranteed a substantial monthly income. The children were living with her, her job was limited, she believed it would be nearly impossible to start over again at age 45, and each child has a 50 percent chance of carrying the Huntington's gene. She saw little opportunity, given her circumstances, to attend school in order to improve her employment situation.
At the close of the property division portion of the trial, the court gave an oral rendition of the division of assets, as follows: (1) The court valued John's 401K plan at $113,575, allocated to John $11,200 to pay back taxes, suggested that $46,000 be distributed to the clerk of the court to hold for release when John was approved for the experimental surgery, and distributed the balance of the 401K one-fourth to John and three-fourths to Toni. If John did not undergo the surgery, after one year the money set aside for the surgery would be divided equally between John and Toni. (2) The court awarded John his pension, which the court valued at $153,331 based on the actuarial tables because there was insufficient evidence to allow the court to rely on any other representations of John's life-span. (3) The court awarded Toni the $50,972 money market fund and the $49,772 real estate promissory note. The court awarded John his separate property, comprising his interest in his deceased father's estate and some acreage in Wisconsin.
Before entering findings of fact and Conclusions of law, and before the second, parenting plan portion of the trial, John filed a motion to re-open and to reconsider, in part, under CR 59. He argued that the court's division of the 401K plan created serious tax consequences such that the court should allow John to pay back taxes from the money market account and block the 401K plan funds allocated for the surgery instead of withdrawing funds and placing them with the court. John further argued that the court should re-open testimony to hear evidence concerning John's projected life expectancy. Attached to the motion were two letters written by medical doctors stating that John's life expectancy was significantly reduced by the disease.
Toni answered that: (1) John's CR 59 motion failed to state any grounds upon which to base such a motion and the supporting affidavits were merely hearsay; (2) John had ample opportunity at trial to present evidence concerning his life expectancy; and (3) the tax consequences should have been no surprise. Toni agreed, however, that the money for the experimental surgery should be blocked in the 401K plan rather than placed with the court.
The trial court heard oral argument on the motion and noted that it was "the clearest request for a second bite of the apple that I've seen for a long time, and I'm not going to authorize it." But the court agreed to block the 401K plan, rather than require dispersal into a court-held fund, and filed the decree of dissolution, findings of fact, and Conclusions of law on October 31, 1997.
Since filing his appeal, John's attorney has informed the court that the issue of whether the trial court should have awarded the experimental surgery fund to him outright is now moot because the trial court subsequently entered an order confirming that John is entitled to these funds for surgery. Toni Walker, the respondent, was previously precluded from filing a brief and from presenting oral argument in thi
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