COURT OF APPEALS DECISION DATED AND RELEASED MARCH 4, 1997 |
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(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. 96-1622
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
JANET A. BAKER, f/k/a
JANET A. SHOCK,
Petitioner-Respondent,
v.
LARRY F. SCHOCK,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Dunn County:
JAMES A. WENDLAND, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Larry Schock appeals an order raising Janet
Baker’s monthly maintenance from $700 to $1,000 over the six years remaining on
the original seven-year maintenance award.
He argues that Baker has not established a substantial change in the
parties’ financial circumstances that would justify modification of
maintenance. We reject this argument
and affirm the order.
At the time of the
divorce, the parties had been married for thirty years. Schock was employed as a plumber earning
approximately $42,000 per year. Baker
earned approximately $13,700 per year.
The court equally divided the parties’ $308,000 marital estate. One year later, Schock’s income rose to
$56,000 per year. Baker’s income from
all sources rose to slightly over $15,200.
The modification of a
maintenance award involves the exercise of the trial court’s discretion. Poindexter v. Poindexter, 142
Wis.2d 517, 531, 419 N.W.2d 223, 228-29 (1988). To withstand appellate scrutiny, the trial court’s decision must
be the product of a rational mental process and be based on facts appearing in
the record and on the appropriate and applicable law. Id.
Maintenance may be modified only upon a showing of a substantial change
in the parties’ financial circumstances.
Eckert v. Eckert, 144 Wis.2d 770, 774, 424 N.W.2d 759, 761
(Ct. App. 1989). Whether the
circumstances have changed is a question of fact which this court reviews under
the clearly erroneous test. Harris
v. Harris, 141 Wis.2d 569, 574, 415 N.W.2d 586, 588-89 (Ct. App.
1987). Whether the change is
substantial is a question of law, but because it is closely related to the
factual issues, we give weight to the trial court’s conclusion. Id.
The record establishes
that the parties’ financial circumstances had changed substantially between the
divorce and the hearing on the motion to modify maintenance. Schock’s $14,000 increase in wages, when
compared to Baker’s raise of less than $2,000, establishes a substantial change
in two of the factors that affect the maintenance decision, Schock’s ability to
pay and the fairness of the maintenance.
See LaRocque v. LaRocque, 139 Wis.2d 23, 32-33, 404 N.W.2d
736, 739 (1987). The substantial
increase in Schock’s earnings also modified the ability of the trial court to
restore Baker to a standard of living reasonably comparable to that enjoyed
during the marriage. See Vander
Perren v. Vander Perren, 105 Wis.2d 219, 228, 213 N.W.2d 813, 818
(1982).
Schock argues that the
$14,000 raise is due primarily to his working overtime and the fact that he
rents out an efficiency apartment in his home.
All sources of income, ordinary and extraordinary, are to be considered
when establishing or modifying maintenance.
See Dowd v. Dowd, 167 Wis.2d 409, 415, 481 N.W.2d 504, 506
(1992). Schock complains that his
standard of living has decreased because he is now required to pay a mortgage
and because the car awarded to him in the divorce judgment was stolen and was
not insured. Neither of these items
supports Schock’s argument that his standard of living has decreased. Schock’s mortgage is only $325 per
month. That expense is offset by the
$200 per month rent he receives from his tenant. The car that was uninsured was valued at only $550 at the time of
the divorce. Schock has the use of his
fiancé’s car as well as a vehicle from his employer. The trial court reasonably concluded that Schock has the ability
to pay an additional $4,800 per year maintenance out of the additional $14,000
he earns.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.