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COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 15, 1996 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0730
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF
NORMAN HANS
RECHSTEINER,
Petitioner-Respondent,
v.
KAREN HILDEGARDE
RECHSTEINER,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Washburn County:
JAMES H. TAYLOR, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Karen Hildegarde Rechsteiner appeals the
portion of her divorce judgment setting child support and maintenance. She argues that the awards of $1,580 per
month child support and $2,500 per month maintenance for seven years are not
supported by the facts or any rational basis.
We conclude the record supports the trial court's decision and affirm
the judgment.
The parties were married
in 1972. Both parties had jobs to pay
for expenses while they attended college.
At the time of the divorce, Norman Hans Rechsteiner, forty-three, works
as a surgeon and earns $186,000 per year plus a $15,000 contribution to a retirement
plan. Karen, earns $32,000 per year as
a teacher.[1] Hans testified that he works in three rural
communities and has not had a week off in three years. He testified that he puts in between forty
to forty-five hours per week and is on call twenty-four hours per day.
Of their two children,
one is still a minor, age fourteen, and in ninth grade. The parties share joint legal custody. Karen has primary physical placement,
subject to reasonable placement times with Hans. Based on their agreement, each received an equal property
division valued at approximately $250,000, a sum stipulated to represent one
half of the net marital estate.
The trial court ordered
$1,580 per month child support based upon Karen's request. However, Karen's request was based upon the
assumption that maintenance would be set at $3,750 per month. Although the trial court did not set
maintenance at $3,750 per month, it found that the child's needs would be
easily met with the sum of $1,580 per month.
The trial court awarded
limited term maintenance in the sum of $2,500 per month for seven years. The trial court also ordered that Hans
contribute $1,500 to Karen's attorney fees.
Child support and maintenance issues are
addressed to trial court discretion. Peerenboom
v. Peerenboom, 147 Wis.2d 547, 554, 433 N.W.2d 282, 285 (Ct. App.
1988). "It is recognized that a
trial court in an exercise of its discretion may reasonably reach a conclusion
which another judge or another court may not reach, but it must be a decision
which a reasonable judge or court could arrive at by the consideration of the
relevant law, the facts, and a process of logical reasoning." Hartung v. Hartung, 102 Wis.2d
58, 66, 306 N.W.2d 16, 20-21 (1981). We
sustain a trial court's exercise of discretion if the record shows a reasonable
basis for its decision. Vier v.
Vier, 62 Wis.2d 636, 639-40, 215 N.W.2d 432, 434 (1974).
CHILD SUPPORT
To set child support,
the trial court must apply percentage standards found in Wis. Adm. Code § HSS 80 unless the
court finds that the application of those standards would be unfair. Sections 767.25(1j) and (1m), Stats.
That a support payor has an exceptionally high income is not in itself
reason to deviate from the percentage standards. Hubert v. Hubert, 159 Wis.2d 803, 813-17, 465
N.W.2d 252, 256-57 (Ct. App. 1990). However, if the trial court determines that
the application of the percentage standards, here 17% of gross income, is
unfair, the court determines child support based on the factors set forth in §
767.25. The child's needs are
appropriate considerations.
Here, the trial court
did not apply the standards, observing that "neither party urges the court
to apply the § HSS-80 standard."
The trial court also stated: "This child has become accustomed to a
lifestyle most teenagers only dream about, however, this has little or nothing
to do with child support." It
concluded that 17% of Hans's gross would be unfair to Hans, a windfall to Karen
and be over and above the needs of the child.
The court concluded that in view of Karen's earnings and maintenance,
the child's needs would be met with a $1,580 per month child support payment.
We cannot fault the
trial court's reasoning. Applying the
standards to Hans's gross income would result in a monthly child support
payment of $2,635. No basis exists in
the record for a finding that the child has a need even approaching that amount.
Karen does not argue
that the child's needs exceed the amount ordered. Instead, she argues that a child's economic needs are not a
factor listed under § 767.25, Stats. We conclude that although not expressly
listed, the child's economic needs are an appropriate consideration. Parrett v. Parrett, 146 Wis.2d
830, 841-42, 432 N.W.2d 664, 668-69 (1988).
Karen also argues that the trial court failed to make specific findings
with respect to their child's needs. We
agree that support based on need should require findings as to the child's
needs and the parents' ability to pay. Id.
at 842, 432 N.W.2d at 669. But here, as
in Parrett, the error is harmless because Karen offers no
separate evidence of the child's needs.
See id. The
trial court ordered support in the amount she requested, although her request
was combined with a higher than ordered maintenance award.
Karen also argues that
the court misstated the law when it stated that the child's accustomed
lifestyle had nothing to do with child support, citing one of the factors to be
considered, § 767.25(1m)(c), Stats.: "The standard of living the child would
have enjoyed had the marriage not ended." Taken in context, we interpret the court's statement as
indicating that it was putting little weight on this factor. Because the record demonstrates the child
will continue a standard of living reasonably comparable to that enjoyed before
the divorce, any error with respect to this statement is harmless beyond a
doubt.
MAINTENANCE
Next, Karen argues that
the trial court erroneously exercised its discretion when it ordered limited
term maintenance of $2,500 per month for seven years. Karen argues that the trial court should have started with an
equal division of the total gross earnings, adjusted after consideration of the
factors listed in § 767.26, Stats. See LaRocque v. LaRocque, 139
Wis.2d 23, 39-40, 406 N.W.2d 736, 742 (1987).
Karen argues that "[t]here are no statutory factors which would
justify a reduction from the 50-50 starting point for maintenance." She contends that all the evidence points to
an increase from the 50-50 starting point of $7,042 per month. She also argues that the court should not
limit the duration of maintenance because she will probably never reach a level
of income where she can afford her former lifestyle.
Karen argues that the
trial court erred in several specific respects: (1) it insinuated that Karen treated her husband like a
slave; (2) it stated that LaRocque did not require the parties to share in the income stream; (3) it
erroneously stated that Karen requested $7,400 per month maintenance; (4) it
relied on the factor that Karen elected to pursue a lower paying job; (5) it
stated that an equal division of earnings would be unfair to Hans without
analysis of after tax impact, statutory factors or findings of need; (6) the
record fails to support the finding that Hans's income would be reduced if Hans
worked his wife's schedule; (7) the court failed to give economic benefit to
child care and household duties; (8) it required that Karen can sell the house
in seven years to support herself; and (9) erroneously found that $2,500 per
month will permit Karen to maintain a standard of living reasonably comparable
to that enjoyed during the marriage.
The record discloses
that Karen requested maintenance in the sum of $3,750 per month, apparently for
indefinite duration. Karen argued that
this was not enough for either party to meet their obligations and maintain
their lifestyle, but it fairly distributes the economic pain of the
divorce. Karen's financial statement
declared gross wages of $2,576 per month.
Together with child support of $1,580 and maintenance of $2,500, her
total monthly income equals $6,656.
Karen submitted a budget of $7,400 per month for herself and her child,
which included payments of $2,641.11 for mortgage, taxes and heat. Karen's monthly expenses include $694 for
travel, $250 for recreation, $385 for donations, and monthly auto expenses of
$225 for gas, oil and repairs, plus $417 monthly depreciation.
The trial court reasoned
that the after tax division of income would not support a $7,400 per month
budget. It found that both parties made
sacrifices during the marriage, and both parties successfully achieved their
career goals. The court then stated
that Karen "deserves support in accordance with her needs and the earning
capacities of the parties, however, the husband is not her slave."
It concluded that $2,500
adequately met Karen's needs, and that Hans's increased earning capacity is in
part based not only on his position as a surgeon, but also on long hours and
oftentimes seven days a week schedule.
The court concluded that if Hans worked Karen's teaching schedule, of
approximately 190 eight-hour days per year, his income would be closer to
$100,000 per year. The trial court
concluded that an equal division of the income stream or a longer term of
maintenance would be unreasonably burdensome to Hans because "it would
require him to go through life at his present all work no play pace." We conclude that the trial court's comment,
that Hans is not a "slave" is an inartful expression of the court's
finding that Hans's elevated earnings in the result of the long hours he puts
in as a surgeon. The trial court limited
the term of maintenance to seven years, explaining that at that time both
parties would be fifty years old, the children will be out of college, and
Karen would have the option of selling the house.
We conclude that the
record supports the trial court's decision.
"The object of maintenance determination is to leave each party
with adequate means of support and to treat each party fairly and
equitably." Enders v. Enders, 147 Wis.2d 138, 142, 432
N.W.2d 638, 640 (Ct. App. 1988). As
long as the trial court's analysis is reasonable and the result is fair, we
will not disturb the trial court's discretionary determination. Id. Because the analysis is
reasonable and the result is fair, we will not overturn the maintenance award.
Karen argues that the
trial court misstated the law when not concluding that LaRocque did
not require the parties to share the post-divorce income stream. We disagree. "There is no rule of law
in Wisconsin stating that a recipient spouse is entitled to one-half of the
other's salary for the rest of his or her life." Enders, 147 Wis.2d at 145, 432 N.W.2d at 641. LaRocque requires the court to
consider the parties' gross income when it determines maintenance, not that
gross income be used in some mechanical way to calculate maintenance. In any event, the trial court's misstatement
of the law, if any, is harmless here because the record reflects that the trial
court considered the parties' gross incomes when determining maintenance.
Karen also argues that
the trial court erroneously stated that she requested $7,400 per month
maintenance. We disagree. This statement reflected the court's
consideration of a maintenance amount close to one-half the parties' total
gross income. The court reasoned that
maintenance at that sum would be unfair because of the extra hours Hans must
work to achieve his elevated level of income.
This is a reasonable consideration.
Karen contends that the
court erroneously considered that Karen chose to pursue a lower paying
job. We disagree. We interpret the court's comment to be that
Karen succeeded in her career objective, instead of subordinating her education
or career objective to the education and career of the spouse. See LaRocque, 139
Wis.2d at 37-38, 406 N.W.2d at 741-42.
Karen argues that the
trial court failed to provide analysis of tax impact, statutory factors or
need. We disagree. The record shows that the court specifically
considered relevant factors, including the needs of the parties, as well as the
factors relating to property division, educational levels, length of the
marriage, and the sacrifices and contributions of both parties. See § 767.26, Stats.
Next, Karen argues that
the trial court failed to consider the benefit of Karen's child care and
household duties. We disagree. The trial court found that both spouses made
sacrifices and that neither would have succeeded without the help of the
other: "This woman did everything
right ... [s]he has both family and career." The award of $2,500 per month maintenance reflects consideration
of Karen's nonmonetary contributions.
Next, Karen argues that
the trial court suggests that she sell her major asset, the home, in seven
years to support herself. We conclude
that requiring only one spouse to liquidate property division to support
herself, without explanation, is unfair.
See LaRocque, 139 Wis.2d at 34-35, 406 N.W.2d at
740-41. Here, however, the record shows
that Karen has achieved her career objective, is fully employed and is
self-supporting. The house, stipulated
to be worth over $300,000, has present equity of over $150,000. The court's statement does not suggest the
liquidation of the asset for support purposes; rather, it suggests to translate
the equity into a less encumbered property would coincide with a reasonable
financial plan as the parties approach retirement. We conclude the court did not erroneously exercise its discretion.
Finally, Karen argues
that the trial court erroneously found that the sum awarded would allow her to
maintain her former standard of living.
We disagree. The trial court
found that neither party would maintain their former style of living. Also, the court found that her $7,400 budget
is inflated. Because Karen's budget
includes expenditures for vacations, recreation, donations and auto expenses
that could be modified to bring her budget closer to her $6,656 monthly income,
without substantially reducing her overall living standard, the court's finding
has a reasonable basis and will not be disturbed on appeal.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.