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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. 96-1249-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
PAMELA E. JOCHUM,
Petitioner-Respondent,
v.
ROBERT J. JOCHUM,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Eau Claire County:
GREGORY A. PETERSON, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Robert Jochum appeals those portions of his
divorce judgment relating to property division and maintenance.[1] He argues that the trial court erroneously
exercised its discretion when it deviated from an equal property division and
denied him maintenance. We conclude
that the record supports the trial court's exercise of discretion with respect
to the property division. Because the
record does not support the denial of maintenance to Jochum, we reverse that
portion of the judgment. Therefore, we
affirm in part, reverse in part and remand for further proceedings.
The parties were married
for over twenty-four years and had three children, who were minors at the time
of the divorce. Pamela Jochum, a
communications specialist with Ameritech, earns $48,000 per year.[2] Robert, a vending machine repairman, earns
$17,000 per year.
Robert, age forty-five,
is not a high school graduate, and began working at his father's gas station at
age fourteen as a mechanic. The station
closed the year before his father died in 1993. After the station closed, Robert spent the summer taking care of
the children while Pamela worked, and later obtained a job as a school
custodian. He currently is a repairman
earning slightly under $17,000 per year.
He is required to pay 29% of his gross income as child support.[3]
Property division and
maintenance are within the sound discretion of the trial court. Pelot v. Pelot, 116 Wis.2d
339, 342, 342 N.W.2d 64, 66 (Ct. App. 1983).
"The term 'discretion' contemplates a process of reasoning which
depends on facts that are in the record or reasonably derived by inference from
the record and yields a conclusion based on logic and founded on proper legal
standards." Mullen v.
Coolong, 153 Wis.2d 401, 406, 451 N.W.2d 412, 414 (1990). 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).
PROPERTY DIVISION
First, Robert challenges
the property division. The trial court
awarded approximately 65% of the parties' property to Pamela, finding:
This
divorce case is an unusual case and the facts presented at trial justify a
variance from the statutory presumption of a 50/50 division. There is an extensive disparity in regards
to the contribution of each of the parties to the marriage with the petitioner
providing the vast majority of income, and basically all of the homemaking and
child care. Undoubtedly the respondent
provided emotional support and other nonmonetary benefits to the marriage which
are non quantifiable in nature.
In considering property
division, the trial court is to presume an equal division but may deviate from
an equal division after considering the relevant factors. Section 767.255, Stats. Those factors
include the length of the marriage, the property brought to the marriage;
whether a party has substantial assets not subject to division; the
contribution of each party to the marriage, giving appropriate economic value
to homemaking and child care services; the age and health of the parties; the
contribution of one party to the other's education or increased earning power;
the parties' earning capacities; child custodial responsibilities and absence
from the job market; and the desirability of awarding the family home to the
party with whom the children spend the most time. Id.
The weight to be
accorded each factor is within the trial court's discretion. The trial court found that the disparate
contributions to the marriage compelled an unequal property division. Robert concedes that the record supports the
finding that Pamela contributed the greater amount of child care and homemaking
services. He also agrees that it
supports the finding that Pamela contributed the greater share of economic
benefits through her increased earning power.
That this was a long-term marriage, to which neither party brought much
in the way of assets, and that neither party has any substantial assets not
subject to division, do not detract from the court's reasoning. We conclude that the record reasonably
supports the court's exercise of discretion.
Robert argues that the
trial court failed to appropriately weigh his contribution to Pamela's greater
earning capacity. Because Pamela was
required to work out of town, he provided child care in her absences. He encouraged her job advancement and put in
long hours at his family's gas station.
The court's implicit
conclusion that Robert's contributions did not advance Pamela's earning
capacity are supported by the record.
The record shows that the out-of-town work was of limited duration,
during which Pamela was gone only a few nights per week. At that time the parties had only one
child. Pamela testified that her mother
came and performed many of the household tasks in her absence. Under these facts, the trial court
implicitly concluded that Robert's contributions to Pamela's advanced earning
capacity were minimal and, as a result, gave them little weight.
MAINTENANCE
Next, Robert argues that
the trial court erroneously denied him maintenance. We agree. In a long-term
marriage, it is reasonable to consider an equal division of total income as a
starting point in determining maintenance.
LaRocque v. LaRocque, 139 Wis.2d 23, 39, 406 N.W.2d 736,
742 (1987). "However, LaRocque
mandates an approach, not a result."
See Enders v. Enders, 147 Wis.2d 138, 144, 432 N.W.2d 638, 641 (Ct. App. 1988). There are two objectives to maintenance:
"to support the recipient spouse in accordance with the needs and earning
capacities of the parties (the support objective) and to ensure a fair and
equitable financial arrangement between the parties in each individual case
(the fairness objective)." LaRocque,
139 Wis.2d at 33, 406 N.W.2d at 740.
Here, the trial court
denied Robert maintenance "based on the facts that [he] chose to earn less
than he was capable of earning during the term of the marriage, is 45 years old
in good health and is in a position to get re-training or find appropriate
employment in order to support himself."
The reasons advanced by the trial court are an insufficient basis to
deny maintenance altogether. If the
trial court anticipates enhanced earning capacity by future training or
education, limited term maintenance during this transitional period is
appropriate to meet this goal. The
existence of the ability to enhance earning capacity through retraining alone
is insufficient to deny maintenance.
The facts of this case distinguish it from Gerth
v. Gerth, 159 Wis.2d 678, 465 N.W.2d 507 (Ct. App. 1990), wherein we affirmed
the trial court's denial of maintenance.
In Gerth, the trial court found that the potential
recipient spouse did not contribute to enhanced earnings of the potential
payor, and based on financial declarations, that payor did not have the
financial ability to contribute and the recipient did not require
maintenance. Here, the trial court did
not make such findings. Robert's and
Pamela's respective financial declarations appear to militate against such a
finding; Robert's living standard appears to be at a subsistence level before
he makes his $406 per month child support payment.
The amount and the
duration of limited term maintenance are matters for the exercise of trial
court discretion. On remand, the trial
court may elect in its discretion to receive additional evidence on this issue.
By the Court.—-Judgment
affirmed in part; reversed in part and cause remanded. No costs on appeal.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.