COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 4, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3413
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
In re the Marriage of:
LINDA J. TOFTNESS,
Petitioner-Respondent,
v.
DAVID R. TOFTNESS,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Polk County:
JAMES R. ERICKSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. David Toftness appeals a postjudgment order that found
him in contempt of court for nonpayment of maintenance and child support and
that rejected his request to reduce his $5,700 annual maintenance and $2,700
annual child support payments. David is
a self-employed chiropractor. Since the
divorce, however, David had lost $6,000 in annual nonbusiness income he
formerly received as president of the Foundation for Chiropractic
Research. The trial court ruled that
David had not shown a substantial change in economic circumstances, despite his
loss of the foundation income.
The trial court found
that David had the ability to pay maintenance and child support, despite the
loss of the foundation income, making his nonpayment contemptuous. The trial court's decision to continue the
current maintenance and child support was discretionary. See Tozer v. Tozer, 121
Wis.2d 187, 190, 358 N.W.2d 537, 539 (Ct. App. 1984). On appeal, Toftness argues that his loss of foundation income
made his nonpayment noncontemptuous and warranted a reduction of both
maintenance and child support. We
reject these arguments and therefore affirm the trial court's order.
The trial court found no
substantial change of economic circumstances.
Only substantial changes in economic circumstances warrant modifications
of maintenance or child support. Bentz
v. Bentz, 148 Wis.2d 400, 407, 435 N.W.2d 293, 296 (Ct. App. 1988)
(maintenance); Piaskoski v. Piaskoski, 151 Wis.2d 549, 552, 445
N.W.2d 327, 329 (Ct. App. 1989) (child support). The trial court acknowledged that David's foundation annual
income had declined by $6,000. The
trial court also inferred, however, that David's business income may have risen
to a level sufficient to counteract the $6,000 decline in his foundation
income. In addition, the trial court
apparently inferred that David had the ability to increase his business income
beyond what he now earned in order to offset the decline in foundation
income.
The trial court could
rationally draw such inferences. David
supplied incomplete information about the financial condition of his
business. For example, he did not show
that his business expenses were ordinary and necessary or that his business
revenue was nonincreasable. Further, he
made no showing that he was incapable of increasing his income through sources
outside his business, like he had previously done through the foundation
income. Faced with this evidence, the
trial court could reasonably infer that David's financial condition and
capacity had not genuinely changed by $6,000 per year. On appeal, we must accept the trial court's
reasonable inferences. Cogswell
v. Robertshaw Controls Co., 87 Wis.2d 243, 250, 274 N.W.2d 647, 650
(1979).
In addition, the trial
court noted that David had originally stipulated to the maintenance and child
support. The trial court held that
David could have reasonably foreseen the future discontinuance of his
foundation income at the time of the stipulation. From this fact, the trial court essentially concluded that
David's reasonably foreseeable loss of foundation income did not qualify as a
change in circumstances. The trial
court could reasonably arrive at this conclusion. Most reasonably foreseeable events will not qualify as changes of
circumstances. See Severson
v. Severson, 71 Wis.2d 382, 391-92, 238 N.W.2d 116, 122 (1976); Erath
v. Erath, 141 Wis.2d 948, 956, 417 N.W.2d 407, 410 (Ct. App.
1987).
On that basis, the trial
court could reasonably conclude that David had not shown a substantial change
in economic circumstances, in spite of the $6,000 decline in his foundation
income. We will uphold the trial
court's discretionary decision if it had a reasonable basis. Littmann v. Littmann, 57
Wis.2d 238, 250, 203 N.W.2d 901, 907 (1973).
For the same reason, the trial court had a reasonable basis to hold
David in contempt for nonpayment of maintenance and child support. David did not show that the loss of
foundation income reduced his ability to pay maintenance and child
support. This in turn permitted the
conclusion that David's nonpayment of maintenance and child support was
contemptuous.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.