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COURT OF APPEALS
DECISION
DATED AND FILED
October 15, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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In re the marriage of:
Laurel Ann Sutphin Abt,
Petitioner-Appellant,
v.
David Karl Abt,
Respondent-Respondent.
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APPEAL
from a judgment of the circuit court for Waukesha County: Patrick
C. Haughney, Judge. Affirmed.
Before
Brown, C.J., Anderson,
P.J., and Snyder, J.
¶1 PER CURIAM. Laurel Abt appeals from a
judgment of divorce from David Abt. She
challenges the circuit court’s imputation of income to her and the amount of
indefinite maintenance David must pay.
We conclude that the circuit court properly exercised its discretion and
affirm the judgment.
¶2 The parties were married twenty-three years when the divorce
action was filed. They have three
children, twins age fifteen and a daughter age twelve at the time of the
divorce. They agreed that primary
physical placement of the children would be with Laurel.
David does not have overnight placement with the children.
¶3 The property division was made pursuant to the parties’
stipulation. The two biggest assets were
the family home and David’s pension account and 401K account. Laurel
took the home subject to existing mortgages.
David took both retirement accounts.
¶4 During the marriage Laurel
did not work outside the home. She has a
college dietician’s degree and is a certified lactation counselor. Laurel
has osteoarthritis. She had left knee
replacement surgery in October 2005. She
is in need of right knee and hip replacement surgery when she can no longer
function with the pain caused by osteoarthritis. David’s annual gross income is approximately
$78,000.
¶5 The circuit court found that Laurel could be employed and imputed income
to her of $23,000 the first year after the divorce and $30,000 each year
thereafter. It awarded Laurel maintenance of $12,000 for one year,
$8,000 per year for the next five years, and $10,000 per year for the years
after all three children have graduated from high school. The child support component of the family
support award is $22,818 annually until the twins graduate from high school and
reduces to $13,376 annually for four more years until their daughter graduates
from high school.
¶6 Maintenance determinations are discretionary with the circuit
court, and we will not reverse absent an erroneous exercise of that
discretion. See Grace v. Grace, 195 Wis. 2d 153, 157, 536
N.W.2d 109 (Ct. App. 1995). We look to
the circuit court’s explanation of the reasons underlying its decision and
where it appears that the circuit court looked to and considered the facts of
the case and reasoned its way to a conclusion that is (a) one a reasonable
judge could reach and (b) consistent with applicable law, we will affirm the
decision as a proper exercise of discretion.
See
id. Maintenance has two objectives: support and
fairness. LaRocque v. LaRocque, 139
Wis. 2d 23,
33, 406 N.W.2d 736 (1987). The former
ensures that the payee spouse is supported in accordance with the needs and
earning capacities of the parties; the latter ensures a fair and equitable
financial arrangement between the parties in the individual case. Id. We must consider whether the circuit court’s
application of the statutory factors enumerated in Wis. Stat. § 767.56 (2005-06),
achieves both the fairness and support objectives of maintenance. Forester v. Forester, 174 Wis. 2d 78, 85, 496
N.W.2d 771 (Ct. App. 1993).
¶7 Laurel contends that the maintenance award is inadequate
because she is not able to work due to osteoarthritis pain and corresponding
limitations, the recovery period she will need after necessary surgeries, and
the need to be available at a moment’s notice to care for their daughter who
suffers epileptic seizures. Laurel remained unemployed
at the time of the divorce. She argues
that the circuit court erred in imputing income to her by ignoring undisputed
evidence that her and her daughter’s medical conditions prevent her from
working. The circuit court may consider
earning capacity when determining a maintenance obligation if it finds a
spouse’s job choice voluntary and unreasonable.
Sellers v. Sellers, 201 Wis.
2d 578, 587, 549 N.W.2d 481 (Ct. App. 1996).
The concept recognizes that “there must be some limit to the degree of
underemployment one may elect to choose when the former spouse is being
presented the bill for the financial consequences of the choice.” Id. at
586.
¶8 A party asserting that his or her decision to reduce or forgo
income is involuntary and reasonable has the burden of proof on both
points. Chen v. Warner, 2004 WI
App 112, ¶¶12, 14, 274 Wis.
2d 443, 683 N.W.2d 468. “The
voluntariness of a decision to reduce or forgo income is a question of fact,
and we do not disturb a finding of fact unless it is clearly erroneous.” Id.,
¶12. With respect to the reasonableness
of the spouse’s choice, we defer to the circuit court’s conclusion if the
circuit court reached a conclusion that a reasonable court could reach based on
the record before it. See id.,
¶13. We defer because the legal
conclusion as to reasonableness is so intertwined with the factual findings
supporting that conclusion. Id.
¶9 It is true that Laurel’s
testimony about her current condition, level of pain, and limitations on both
sedentary and active employment functions was not contradicted by anything
other than David’s testimony that he thought Laurel could “do something.” A witness’s statement need not be
contradicted by other evidence in the record as a condition precedent to the
circuit court’s review of the witness’s credibility. See State v. Kimbrough, 2001
WI App 138, ¶28, 246
Wis. 2d 648, 630 N.W.2d 752. The circuit
court may choose to believe some assertions of the witness and disbelieve
others; this is especially true when the witness is the sole possessor of the
relevant facts. Id., ¶29. We are required to give due regard to the
opportunity of the circuit court to assess the credibility of the
witnesses. Wis. Stat. § 805.17(2).
Appellate court deference considers that the circuit court has the
opportunity to observe the demeanor of witnesses and gauge the persuasiveness
of their testimony. Johnson v.
Merta, 95 Wis.
2d 141, 151-52, 289 N.W.2d 813 (1980).
¶10 The circuit court concluded Laurel’s absence from the labor market for
twenty-three years and her and her daughter’s medical conditions did not
prevent her current employment. The
circuit court rejected her testimony. It
found that if the pain was such that she could put off knee and hip replacement
surgery, the pain would not be so much as to negate an ability to work. The court acknowledged that it is desirable
to put off replacement surgery for as long as possible but found that when a
person claims the medical condition is preventing employment, it is time to
have the surgery. The circuit court
expressed concern that Laurel
had “squandered” the one year while the action was pending to have the
surgeries and prepare herself to reenter the labor market. It is relevant to consider how the refusal of
available treatment impacts the ability to work. See DeLaMatter v. DeLaMatter,
151 Wis. 2d
576, 587-88, 445 N.W.2d 676 (Ct. App. 1989) (“[t]he court should also consider
the likely effect of the treatment (whether or not accepted) on the alcoholic
spouse’s ability to obtain and maintain employment”).
¶11 The circuit court’s findings that Laurel could work or improve her ability to
work is not clearly erroneous. As the
circuit court noted there was no doctor’s testimony that she cannot work in her
current condition. Her doctor’s letter
indicated that it was for Laurel
to decide when to have surgery because she could not tolerate the pain any
further. The doctor opined that after
recovery she could do sedentary work.
David testified that Laurel’s
mobility improved after recovery from the first knee replacement. Although the vocational expert’s report
indicated that based on Laurel’s reported limitations “it is doubtful that Ms.
Abt could currently find and maintain employment,” it concluded that if her
medical condition improved after having the replacement surgeries she could
work in various jobs, including her desired employment as a lactation
counselor. The circuit court correctly determined that
the choice to not work or ready oneself for work was Laurel’s voluntary choice.
¶12 The court also found that other persons are available to care
for the parties’ daughter when the need arises.
That finding is not clearly erroneous.
David indicated his availability and desire to help with his daughter’s
medical condition. There was also testimony
that Laurel’s
mother is available. The daughter
pursues activities, such as school and riding the bus home, without Laurel’s direct observation and because Laurel has talked with adults supervising
those activities about her daughter’s condition and needs. Further, Laurel acknowledged having told the
orthodontist that her daughter’s condition was stabilizing so that the
orthodontist would not refuse or delay treatment. There was no medical evidence that Laurel needed to be
available twenty-four hours a day or that she is the only person who can care
for the parties’ daughter.
¶13 Based on the facts found, and the deference we give the circuit
court’s determination, we sustain the determination that Laurel’s decision to remain unemployed was
voluntary and unreasonable. The circuit
court did not erroneously exercise its discretion when it considered Laurel’s earning capacity
in determining maintenance. The amount
of imputed income is supported by the range of earnings in the vocational
report, the only evidence of Laurel’s
earning capacity. That the amount jumps
$7,000 after one year was not intended to reflect an actual raise that Laurel might receive from
an employer. Rather, the circuit court
recognized that Laurel’s
absence from the labor market would result in lower earnings the first year
back in that market. We reject Laurel’s claim that the
amount of imputed income is excessive.
¶14 Laurel
also argues that the maintenance award is inadequate because the circuit court
failed to give full consideration to the support and fairness objectives of
maintenance as they apply to her. To
clarify, Laurel
does not dispute that the circuit court considered the relevant factors in Wis. Stat. § 767.56. Rather, she insists that the circuit court
relied on only one thing when determining the amount of maintenance—that David
not be forced to pay for Laurel’s
decision to forego the surgeries until some later date. She also suggests that the circuit court’s
use of a computer program, and the running of multiple alternatives under that
program, shows a mechanistic and result oriented approach.
¶15 We disagree. The
alternative scenarios the circuit court ran on the computer program fulfilled
its duty to consider the fairness and support components of maintenance as to
each party. The circuit court’s
discussion of those scenarios followed its discussion of the relevant statutory
factors and the recognition that a 50/50 division of total income was the
starting point. The alternative
scenarios and the circuit court’s discussion of them demonstrate the circuit
court’s weighing of different possibilities and augmented its decisional
process. See Bisone v. Bisone, 165 Wis. 2d 114, 123 n.6,
477 N.W.2d 59 (Ct. App. 1991) (recognizing that “if properly used [,] new
technology can augment the prudent application of judicial discretion”).
¶16 We conclude the circuit court properly exercised its discretion
in deviating from the 50/50 starting point. The circuit court found that child support
and maintenance were intertwined. It
factored in David’s child support obligation and how that obligation, coupled
with maintenance, would substantially limit his disposable income. It demonstrated how a 50/50 split of David’s income,
without any imputed income, and a separate calculation of child support leads
to an absurd result in terms of David being able to support himself. It also determined that a higher award to Laurel would be a
disincentive to her to become self-supporting and improve her standard of
living by being in the labor market. It
explained that the maintenance reduction to $8,000 after the first year was
intertwined with the increase in the imputed income and implicitly fosters Laurel’s incentive to
contribute to her support. The circuit
court recognized that it would be unfair to Laurel to keep maintenance at only $8,000
after the cessation of child support and so it provided for the increase to
$10,000 indefinitely.
¶17 The circuit court demonstrated consideration of the fairness
and support components of maintenance as applied to both parties. The decision is tailored to the circumstances
and is based on the facts of record. We
recognize, as the circuit court did, that the decision may not survive a
substantial change in circumstances that may be occasioned by Laurel’s
medical condition or a showing that Laurel
is not able to earn the income imputed to her.
The indefinite nature of the maintenance award makes it subject to
revision upon an appropriate showing of a substantial change of circumstances
by either party.
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.