COURT OF APPEALS DECISION DATED AND FILED May 7, 2009 David
R. Schanker Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT IV |
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In re the marriage of: Joann Marie Witt,
Petitioner-Respondent, v.
Respondent-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Higginbotham, P.J., Dykman and Bridge, JJ.
¶1 PER CURIAM. Sterling Witt appeals the maintenance component of his divorce judgment. He argues that the circuit court erroneously exercised its discretion by basing the award on his earning capacity rather than his actual earnings. We agree, and therefore reverse and remand this matter for further proceedings consistent with this opinion.
BACKGROUND
¶2
¶3 The trial court found that Joann could earn between $30,000 and $35,000 per year working at a trucking company, which would allow her to become self-supporting at a standard similar to that enjoyed during the marriage.
¶4
¶5 The court then set maintenance in the amount of $225 per
month, commencing in June of 2009, when the parties’ youngest child was
expected to graduate from high school, and continuing until Joann’s 65th
birthday.
STANDARD
OF REVIEW
¶6 The voluntariness of a decision to reduce income is a
question of fact which we will uphold unless it is clearly erroneous; the
reasonableness of such a decision is a question of law to which we will accord
some degree of deference because it is intertwined with factual
determinations. Chen v. Warner, 2004 WI
App 112, ¶12, 274
DISCUSSION
¶7 Wisconsin
Stat. § 767.56 (2007-08)[2]
lists a number of factors for a trial court to consider when determining the
amount and duration of a maintenance award, including the length of the
marriage, the age and health of the parties, the property division, the
parties’ respective educational levels, the earning capacity of the party
seeking maintenance, the contributions of one party to the education or earning
power of the other, tax consequences, and the standard of living enjoyed during
the marriage. These factors “are
designed to further two distinct but related objectives in the award of
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 v. LaRocque, 139
¶8 Courts may use the earning capacity, rather than actual
earnings, to determine the amount of support payments when that party has been
found to be shirking. Chen,
274
¶9 Joann points out that the shirking analysis stems from a line
of child support cases, and argues that it should not be extended to
maintenance decisions, since the maintenance statute already refers to earning
capacity. We note, however, that the
statute refers to the earning capacity of
the party seeking maintenance, not the party from whom maintenance is
sought. Wis. Stat. § 767.56(5).
In any event, the shirking analysis has already been applied in the
maintenance context, and we are satisfied that it is appropriate to do so
here. See, e.g., Scheuer v. Scheuer,
2006 WI App 38, ¶¶9-12, 290
¶10 Here,
¶11 We conclude, as a matter of law, that the record does not
support a shirking determination.
Therefore, the trial court erroneously exercised its discretion by
setting a maintenance award based on
By the Court.—Judgment reversed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] It is not clear whether the trial court understood that Joann’s testimony about what truck drivers could earn referred to company-employed drivers rather than self-employed drivers.
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[3] Joann also argues that the $48,000 figure
used by the trial court did represent